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Justice Department Secretly Obtains AP Phone Records

May 14, 2013
Originally published on May 14, 2013 1:19 pm

The Associated Press is protesting what it calls a massive and unprecedented intrusion into its gathering of news. The target of that wrath is the U.S. Justice Department, which secretly collected phone records for several AP reporters last year. The AP says it's caught in the middle of a Justice Department leak investigation.

The scope of the Justice Department subpoenas is what gives David Schultz, a lawyer for AP, pause.

"It was a very large number of records that were obtained, including phone records from Hartford, New York, Washington, from the U.S. House of Representatives and elsewhere where AP has bureaus. It included home and cellphone numbers from a number of AP reporters," Schulz says.

It's not clear what the U.S. Attorney in Washington, D.C., is investigating. But the AP thinks it might be related to its story from May 2012 that described the CIA stopping a terrorist plot to plant a bomb on an airplane with a sophisticated new kind of device.

How that story came to be is the subject of a criminal leak investigation. But the AP says the Justice Department might now be flouting the First Amendment to try to build a case.

"This sort of activity really amounts to massive government monitoring of the actions of the press, and it really puts a dagger at the heart of AP's news-gathering activities," Schulz says.

The phone records don't include the substance of the calls — they're just a written tally of who called whom and how long the calls lasted.

Justice Department officials didn't want to talk on tape. But a spokesman for Ron Machen, the U.S. attorney in D.C., said he follows laws and Justice Department rules.

What are those rules?

For starters, the attorney general himself needs to sign off on a subpoena to a reporter. And prosecutors must demonstrate that they made every effort to get the information in other ways before even turning to the press.

But those rules also say prosecutors need to notify the media organization in advance unless that would pose a substantial threat to the integrity of the investigation.

David Schulz, the lawyer for AP, says the guidelines for the Justice Department's dealings with reporters date back to a dark time.

"They were put into place after Watergate, when everyone was very alarmed by the abuses and excesses of the Nixon Justice Department in subpoenaing reporters and trying to get information about their sources and activities," he says.

Three years ago, the Justice Department's inspector general found evidence that the FBI was getting phone records from The Washington Post and The New York Times in the Bush administration without following those guidelines.

Now lawmakers from both political parties are asking the Obama administration tough questions.

California Republican Rep. Darrell Issa, a fierce critic of the administration, said the Justice Department is behaving like it's above the law.

Vermont Democratic Sen. Patrick Leahy, who normally defends the Obama White House, said he's troubled and wants an explanation.

As for the civil liberties community?

"I think my first reaction to this story is shock," says Ben Wizner, a lawyer at the ACLU. "This looks like a fishing expedition. And even if the Justice Department is conducting a criminal investigation of a leak, this kind of subpoena has to be a last resort and can't possibly be as broad as this one."

The last time phone records for a reporter were the focus of a secret subpoena was back in 2001, in a case that involved a different AP reporter.

Back then, former Justice Department prosecutor Victoria Toensing said this on PBS NewsHour: "You shouldn't get a story that violates the law, and if you do, then the government should take all steps to see that that doesn't happen again so people have confidence in their judicial system."

This Justice Department will have a chance to explain itself later this week when Attorney General Eric Holder testifies on Capitol Hill.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

DAVID GREENE, HOST:

This is MORNING EDITION, from NPR News. I'm David Greene.

STEVE INSKEEP, HOST:

And I'm Steve Inskeep. Quite a news week. The Associated Press is protesting what it calls a massive and unprecedented intrusion into its newsgathering. That protest is directed at the U.S. Justice Department, which secretly collected phone records for several AP reporters last year. The AP says it's caught in the middle of a Justice Department investigation of an information leak. Here's NPR Justice Correspondent Carrie Johnson.

CARRIE JOHNSON, BYLINE: The scope of those Justice Department subpoenas is what gives David Schultz pause. Schultz is a lawyer for the Associated Press.

DAVID SCHULTZ: It was a very large number of records that were obtained, including phone records from Hartford, New York, Washington, from the U.S. House of Representatives and elsewhere where AP has bureaus. It included home and cell phone numbers from a number of AP reporters.

JOHNSON: It's not clear what the U.S. attorney in Washington, D.C. is investigating. But the AP thinks it may be related to its story from May 2012. The story described the CIA stopping a terrorist plot to plant a bomb on an airplane with a sophisticated new kind of device. How that story came to be is the subject of a criminal leak investigation. But the AP says the Justice Department may now be flouting the First Amendment to try to build a case. David Schultz.

SCHULTZ: This sort of activity really amounts to massive government monitoring of the actions of the press, and it really puts a dagger at the heart of AP's newsgathering activities.

JOHNSON: The phone records don't include the substance of the calls. They're just a written tally of who called whom and how long that call lasted. Justice Department officials didn't want to talk on tape. But a spokesman for Ron Machen, the U.S. Attorney in D.C., says he follows laws and Justice Department rules. What are those rules? Well, for starters, the attorney general himself needs to sign off on a subpoena to a reporter. And prosecutors need to demonstrate they made every effort to get the information in other ways before even turning to the press.

But those rules also say prosecutors need to notify the media organization in advance, unless that would pose a substantial threat to the integrity of the investigation. David Schultz, the lawyer for the AP, says the guidelines for the Justice Department's dealings with reporters date back to a dark time.

SCHULTZ: They were put into place after Watergate, when everyone was very alarmed by the abuses and excesses of the Nixon Justice Department, in subpoenaing reporters and trying to get information about their sources and their activities.

JOHNSON: Three years ago, the Justice Department's inspector general found evidence the FBI was getting phone records from the Washington Post and New York Times in the Bush years without following those guidelines. Now lawmakers from both political parties are asking the Obama administration tough questions.

California Republican Darrell Issa, a fierce critic of the administration, said the Justice Department was behaving like it's above the law. Vermont Democrat Patrick Leahy, who normally defends the Obama White House, said he's troubled and wants an explanation. As for the civil liberties community...

BEN WIZNER: I think my first reaction to this story is shock.

JOHNSON: Ben Wizner is a lawyer at the ACLU.

WIZNER: This looks like a fishing expedition. And even if the Justice Department is conducting a criminal investigation of a leak, this kind of subpoena has to be a last resort, and can't possibly be as broad as this one.

JOHNSON: The last time phone records for a reporter were the focus of a secret subpoena was back in 2001, in a case that involved a different AP reporter. Back then, former Justice Department prosecutor Victoria Toensing said this on the "PBS NewsHour."

(SOUNDBITE OF TV SHOW, "PBS NEWSHOUR")

VICTORIA TOENSING: You shouldn't get a story that violates the law, and if you do, then the government should take all steps to see that that doesn't happen again, so people have confidence in their judicial system.

JOHNSON: This Justice Department will have a chance to explain itself later this week, when Attorney General Eric Holder testifies on Capitol Hill. Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.