Last Friday, the Associated Press received a letter from the Department of Justice informing the news agency that the government had acquired two months of telephone records — incoming number, outgoing number, and call duration — for a more than 20 lines associated with the agency. Among those were phones in the Associated Press offices, personal lines for reporters, and the AP's phone in the House of Representatives press gallery.
The letter the AP received has not been made public, but it apparently provided no reason for the seizure. According to an article published by the AP, it may relate to its May 2012 article revealing an Al-Qaeda bomb plot. That plot, originating in Yemen, was targeted for the anniversary of the death of Osama bin Laden, but was foiled when the device was given to a CIA double agent. The AP broke the story, holding it for several days at the request of the White House. According to the AP, the reporters on that story owned numbers that were among those subpoenaed, indicating that Justice may be trying to identify the source of the leak.
Gary Pruitt, the president and CEO of the AP sent a scathing letter in response to the revelations. Calling it a "massive and unprecedented intrusion" that is "a serious interference with AP’s constitutional rights," Pruitt writes:
There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the news-gathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.
The AP demanded that the department to return the data to the AP and destroy its records.
According to Electronic Frontier Foundation senior staff attorney Kurt Opsahl, the most likely mechanism for Justice acquiring the information was a grand jury subpoena. (The Huffington Post's Ryan Reilly pointed to the form that Justice's attorney would have had to complete for a "Media Subpoena Request.") While the process is more involved for media organizations than for other witnesses in criminal cases — for example, the Attorney General must personally approve it — Opsahl told us that he considered it the most likely route. If the government had employed a more exotic form of request, such as a national security letter, it's likely the AP still wouldn't know that data had been collected. In the case of a grand jury subpoena, the government must notify the party that it has collected the information.
If such a subpoena was the mechanism used, the AP may have two grounds to take issue. The first, as Opsahl notes, is that the information request should according to the statute be "as narrowly drawn as possible." In this case, it appears to have been remarkably broad — as is noted in the AP's response letter. The second is that the subject of the subpoena must be notified of the subpoena within 90 days. While it's not clear when the subpoena was issued, the data collection likely covers a period from last May.
During his confirmation hearings to lead the CIA, John Brennan was asked about the AP's story on the Yemen plot. In his response to a question from Senator Jim Risch, Brennan said:
The irresponsible and damaging leak of classified information was made several days – and possibly even a week – earlier when someone informed the Associated Press that the U.S. Government had intercepted an IED that was supposed to be used in an attack and that the U.S. Government currently had that IED in its possession and was analyzing it. Various reporters were asking questions of our press people that raised alarm bells. ...
The U.S. Attorney’s Office for the District of Columbia is conducting a criminal investigation of these leaks, and I participated in a voluntary interview with those conducting the investigation.
This afternoon, that office released a statement indicating that it "take[s] seriously" its obligations to follow the law when subpoenaing records from media organizations. "Because we value the freedom of the press," the statement reads, "we are always careful and deliberative in seeking the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws." Under Attorney General Eric Holder, Justice has initiated an unprecedented number of prosecutions for alleged leaking.
Requests by The Atlantic Wire for comment from the AP have not yet been returned.
Photo: Attorney General Eric Holder. (AP)
Update, May 14: At a press conference today, Attorney General Holder indicated that he'd recused himself from the investigation, and that Deputy Attorney General James Cole led on the subpoena.