You’d be forgiven for not believing it, but there was a time when seizing a reporter’s private e-mails and accusing him in court documents of possibly aiding and abetting a criminal conspiracy for doing his job would have been unthinkable.
By now, we’re well acquainted with the Obama administration's unprecedented prosecutions of suspected leakers, and how that pursuit has ensnared journalists and jeopardized their ability to protect their sources’ identities. But this anti-leaking zeal didn’t begin in 2009 with the inauguration of Barack Obama.
The course was set in 2003, when an influential appeals court judge opined that journalists’ supposedly legal right not to reveal their sources, known as “reporters’ privilege,” was complete bunk. The privilege—or at least lawyers’ perception of it—was the constitutional cornerstone that backed up journalists’ pledges never to reveal the names of people who talked to them in confidence. But now that the legitimacy of the privilege was questioned, prosecutors were emboldened to acquire reporters’ confidential information using tactics they wouldn’t have dared try in a prior era.
In a piece for the magazine three years ago, I wrote about how federal prosecutors have flexed their legal muscles over the past decade, and how the undermining of the reporters’ privilege helps explain why the Obama administration is so keen to go after leakers and is willing to turn journalists into unwitting, and unwilling, tools of investigations. Here are the key moments in the timeline.
July 2003: Judge Richard Posner of the Seventh Circuit writes an opinion explaining why the court had ruled against a group of authors who refused to hand over tape recordings of interviews they’d done with a source. Unexpectedly, Posner argues that the landmark Supreme Court decision in Branzburg v. Hayes that supposedly established reporters’ privilege actually did no such thing.
Journalists don’t have an “absolute” privilege to protect their sources, Posner writes. Instead, courts need to “make sure” that a media subpoena “is reasonable in the circumstances. . . . We do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist.”
Posner lowers a gate separating the government and the press. And within a few years, federal prosecutors are climbing over it.
December 2003: US Attorney Patrick Fitzgerald, acting as a special prosecutor in the investigation of who may have leaked the name of CIA officer Valerie Plame to news reporters, subpoenas five journalists to testify before a grand jury. Judith Miller of the New York Times refuses to comply and eventually spends 85 days in jail.
“Plamegate” becomes a watershed for the press, in large part because Miller fought the subpoena and lost. This becomes a precedent that weakens reporters’ assertion of privilege where the underlying leak, in this case identifying a clandestine CIA officer, might involve a crime. In retrospect, then-Times executive editor Bill Keller wonders whether the paper should have tried to strike a deal with prosecutors that would have prevented Miller from having to fight the subpoena and go to jail.
February 2006: The Justice Department investigates the source of a New York Times article that revealed a secret program of warrantless surveillance by the National Security Agency. In testimony before a Senate panel, Attorney General Alberto Gonzales is asked whether the administration had considered “any potential violation [by the newspaper] for publishing that information.” Gonzales replies, “Obviously our prosecutors are going to look to see all the laws that have been violated. And if the evidence is there, they’re going to prosecute those violations.”
This is the first time any administration official has hinted that the government might prosecute journalists under criminal law for reporting on national security information.
March 2006: A pair of FBI agents shows up at the Bethesda home of Mark Feldstein, a journalism professor and former investigative reporter for CNN. They demand that Feldstein hand over decades-old documents that he’d been researching for a book on investigative columnist Jack Anderson, who’d died a few months earlier. When Feldstein asks what crime the FBI was investigating, an agent replies, “Violations of the Espionage Act.”
The agents say they’re investigating a case involving two lobbyists for the American Israel Public Affairs Committee who’d been indicted for receiving classified information. The FBI wants Feldstein to tell them the names of reporters who’d worked for Anderson and who held pro-Israel views and had pro-Israel sources.
Feldstein doesn’t hand over the documents or assist the FBI. He later writes that the agent’s actions “suggested that the bureau viewed reporters’ notes as the first stop in a criminal investigation rather than as a last step reluctantly taken only after all other avenues have failed.”
May 2006: A federal prosecutor subpoenas two reporters for the San Francisco Chronicle who’d seen transcripts of confidential grand-jury testimony in an investigation of the Bay Area Laboratory Co-Operative (BALCO), which produced performance-enhancing drugs for athletes. The reporters linked well-known players to steroid use, including players who publicly proclaimed that they’d never taken drugs. The government wanted to know who had violated the rules of grand-jury secrecy and shown court documents to the reporters.
The BALCO case tests the limits of internal guidelines that Justice Department lawyers are supposed to follow when subpoenaing members of the media. No national-security issue was at stake, nor was knowing who leaked the grand-jury information, which was a crime, necessary to establish the guilt or innocence of anyone involved in steroid use. The subpoenas were approved by Attorney General Gonzales.
Mark Corallo, the Justice Department spokesman under Gonzales’s predecessor, John Ashcroft, later says the prosecutors had broken the department’s rules. “This was an abuse of power,” Corallo tells the PBS news program Frontline. “. . . The government just did not meet the standards set by their own guidelines. . . . This one doesn’t even come close.”
The reporters, who had once been personally thanked by President George W. Bush, a former baseball team owner, for their public service journalism, ultimately avoid going to jail when their source identifies himself.
August 2006: A freelance videographer, Joshua Wolf, is sent to jail after he refuses to turn over video footage of a protest in San Francisco in which a police car was burned and an officer was injured. Wolf spends 226 days in prison. He is released when he finally agrees to turn over his uncut footage.
January 2008: The Justice Department subpoenas New York Times reporter James Risen, demanding to know the source of information for a chapter in his book, State of War, about a botched CIA operation against Iran. The government had been investigating the case for two years, and had considered trying to halt the book’s publication, in 2006. Risen resists the subpoena, which eventually expires at the end of the Bush administration.
February 2008: Newspaper reporter Toni Locy is held in contempt of court for refusing to identify her sources for a series of articles in USA Today. Locy had written in 2001 about Steven Hatfill, a virologist who was identified as a “person of interest” in the anthrax attacks, allegations that later proved false. Hatfill sued the government for violating his privacy and subpoenaed several journalists to find out who in the government fingered him as a suspect.
The Justice Department, which is defending the US government in the civil suit, argues that Judge Reggie Walton “should reject this attempt at expanded discovery” and quash Hatfill’s subpoena. Walton disagrees, underscoring judges’ new willingness not to recognize the reporter’s privilege, even in non-criminal cases. He rules that for every day Locy refuses to testify, she must pay $5,000 in penalties out of her own pocket. The decision is stayed pending appeal, and a court eventually vacates the judge’s ruling, but only because Hatfill had settled his case with the government, rendering Locy’s testimony needless. The appeals court did not reach any decision about the reporters’ privilege.
April 2010: The Justice Department subpoenas New York Times reporter James Risen a second time. Judge Leonie Brinkema questions why the government needs a subpoena when there appears to be enough evidence of who the leaker is to secure an indictment. She requires prosecutors to get the sign-off of Attorney General Eric Holder. Risen continues to fight the subpoena, and eventually Brinkema limits the questions the government may ask him in court. Risen appeals to keep that decision in place. The case could end up in the Supreme Court.
May 2010: A federal judge authorizes a search warrant for the personal e-mails of Fox News reporter James Rosen in connection with the suspected leak of classified information about North Korea a year earlier. An FBI agent swears in an affidavit in support of the warrant that “there is probable cause to believe” that Rosen is violating a criminal law on disclosing “national defense information” by acting as “an aider and abettor and/or co-conspirator” with a State Department official suspected of being his source. Rosen is reportedly not informed that the government wants to search his e-mails and has no opportunity to resist the warrant.
May 2013: The Justice Department informs the Associated Press that it had subpoenaed the phone records of several AP journalists. The records, obtained months earlier, include numbers dialed to and from phone lines in four AP offices, possibly implicating the communications of 100 journalists, over a period around two months. The Justice Department appears to be investigating an AP story on a successful CIA operation to thwart a bombing plot hatched in Yemen.
Journalists who are ordered by a judge to cooperate with an official investigation face a set of unenviable choices. They can become the government's eyes and ears and identify their confidential sources, or do jail time and tempt financial ruin for failing to comply. Consider these harrowing cases of reporters who found themselves on the working end of a court order.
Toni Locy was ordered to reveal her sources for articles she wrote for USA Today in 2001 about Steven Hatfill, who was (falsely) implicated as the anthrax mailer and later sued the US government. Hatfill wanted to know who had given his name to Locy. When she refused to say, a judge ordered her to pay fines totaling up to $5,000 a day for every day she didn't comply. He also prohibited Locy's employer from reimbursing her--the money had to come out of Locy's own pocket. The decision was stayed pending a decision from an appeals court, which eventually vacated the judge's order after Hatfill settled his lawsuit with the government.
In 2004, reporter Jim Taricani of WJAR-TV in Providence, Rhode Island, an NBC affiliate, received a six month house arrest sentence because he refused to say who gave him a secret FBI video recording of a local official taking a bribe. The judge said he would have sent Taricani to jail, but he showed mercy because the journalist, who had heart transplant surgery, was in poor health.
Judith Miller of the New York Times spent 85 days in jail in 2005 for refusing to identify her sources in the "Plamegate" affair. Miller didn't earn much sympathy among some colleagues for her flawed reporting on Iraq's alleged weapons of mass destruction program. But she still did hard time, which is maybe the second worst thing to bankrupting oneself.
In August 2006, Joshua Wolf, a freelance videographer, went to jail after he refused to turn over video footage of a protest in San Francisco in which a police car was burned and an officer was injured. Wolf spent 226 days in prison. He was released when he finally agreed to turn over his uncut footage.
Beginning in 2008, James Risen, a New York Times reporter and book author, began fighting a legal battle that earned him two subpoenas demanding he identify a source for a book on the CIA. Bush White House officials were so incensed by what Risen had written in that they considered trying to stop the book's production. Risen faced years of legal battles and the possibility of jail time. A judge ultimately limited the questions the government was able to ask Risen in court, and he has appealed to keep that decision in place. The case could end up in the Supreme Court.
The Justice Department's investigation into who disclosed information to the Associated Press for a 2012 story about a CIA operation in Yemen could end up exposing more confidential sources for other AP stories, according to former federal prosecutors and media law experts.
When Justice Department officials obtained the personal and business phone records of several AP journalists, they were presumably looking for connections to a limited number of government employees who disclosed information for a specific story or stories. But if in the course of their investigation officials come across new names and phone numbers of people they didn't know had been in touch with the AP, they can investigate them, as well.
"If [investigators] get the records, they get the records. They can go over them" and follow up on any news leads, said Joseph diGenova, a former US attorney for the District of Columbia.
With a valid subpoena, even if the only motivation is to get information on one confidential source, nothing precludes investigators from using the phone records they obtained for another purpose, said Baruch Weiss, a former US attorney in the Southern District of New York. "If they find something that leads them down a different criminal road, they're not limited in their use."
Government investigators could have entrée into the reporting of some of the country's top journalists, many of whom have broken news that relied on confidential sources. "Potentially, they’ve exposed the reporters' entire contact list to investigation," says Chuck Tobin, a lawyer with Holland & Knight, who has represented journalists trying to resist subpoenas. Tobin is not representing the AP in the current matter, though his firm has worked for the news organization in the past.
Gary Pruitt, the president and CEO of the AP, calls the government's search of phone logs a "massive and unprecedented intrusion by the Justice Department . . ." The government obtained two months worth of phone logs that covered 20 lines and at least four AP offices, as well as the personal phones of some journalists.
"This is the widest ranging subpoena, I believe, in history ever issued to a news organization for electronic information," diGenova says. "It is a staggering subpoena. I have no idea what the justification is for it. ... They better have a damn good reason."
Justice Department guidelines require that before officials seek a subpoena they negotiate with a news organization to try to find some arrangement by which the government can obtain the information it needs while still respecting journalists' obligation to report the news, which often requires promise of confidentiality to sources. But in the case of the AP, the government waited until months after the records were obtained to give notice, and there was no chance to mount a legal challenge. The Justice Department told the AP about the subpoena last Friday.
"It seems obvious the administration didn’t want to face a court challenge," says Tobin. "It’s hard to imagine a justification [for the subpoena] if the phone records are not going to go away because they notify the AP."
Justice Department guidelines state that negotiations should continue as long as they "would not pose a substantial threat to the investigation at issue." During a press conference today, attorney general Eric Holder said he was "confident that all the people who are involved in the investigation . . . followed all of the appropriate Justice Department regulations and did things according to DOJ rules." Holder said he had recused himself from the decision on whether to authorize the subpoena—which normally requires the attorney general's sign-off—because the FBI had interviewed him in connection with the leak probe. The decision was delegated to the deputy attorney general, Jim Cole.
In a letter to Pruitt of the AP, Cole wrote, "The subpoenas were limited to a reasonable period of time and did not seek the content of any calls," meaning the spoken words. Justice Department guidelines require that a subpoena may only be issued after investigators have exhausted all other reasonable means of determining who disclosed classified information. Officials have not offered any insights into how they arrived at their decision to obtain the AP's phone records.
The Justice Department secretly obtained the phone records of several Associated Press journalists, apparently in an investigation of who disclosed to the organization information about a classified counterterrorism operation in Yemen. According to the AP, investigators "obtained two months of telephone records of reporters and editors . . . in what the news cooperative's top executive called a 'massive and unprecedented intrusion' into how news organizations gather the news."
This is a significant threat to journalists' ability to shield the identify of their sources. But it is not surprising and was probably inevitable.
Last year, a Justice Department official said the administration was "out for scalps" in its zealous investigation of leaks and subsequent prosecutions. Identifying those who disclose classified information to journalists is easier today because the government has several means of legally accessing electronic records, such as phone logs, and more sophisticated software for analyzing who was communicating with whom.
When an agency reports a leak of classified information to investigators, they first look at the so-called BIGOT list, which contains the names of all individuals who are read in on any classified program, and how much information they're authorized to know. That helps them determine, among other things, whose phone records to examine.
It's not clear on what grounds the Justice Department was able to subpoena the AP's phone records, but investigators may already have had some notion who was on the other end of any calls to reporters or editors.
"The records obtained by the Justice Department listed incoming and outgoing calls, and the duration of each call, for the work and personal phone numbers of individual reporters, general AP office numbers in New York, Washington and Hartford, Conn., and the main number for AP reporters in the House of Representatives press gallery, according to attorneys for the AP," the organization reports.
The breadth of these records is what's most perplexing. In the past, investigators have obtained access to a specific reporter's records, but I can't think of any case where the government got so much information and from so many offices, as well as private lines. Do investigators really have reason to believe that their suspected leaker or leakers were talking to at least six journalists in at least four different AP offices? To get a media subpoena, they'd have to persuade a judge, and the attorney general, that this was so, and that the only way to know for sure who was disclosing the secrets was to seize all these journalists' records.
There's no indication from the AP report that investigators were listening in on journalists' conversations. But they wouldn't have to in order to determine that a reporter and a particular government employee have a relationship. The phone log will tell them that.
“I’ve done investigations like this, and I know that the longer I stay on phone with you, the more suspicious it looks,” Steven Tyrrell, a former Justice Department prosecutor who had been in charge of two high-profile leaks cases, told me last year. During the second term of the Bush administration, Tyrrell led the Justice Department's case that reportedly scrutinized the phone records of New York Times reporter James Risen, in an attempt to find out who gave him classified information about a CIA operation in Iran.
Risen's case has some important lessons for the AP, which has demanded that the Justice Department return the phone records and destroy all copies. According to a former intelligence official, when the Justice Department first sought a subpoena to compel Risen to identify his source to a grand jury, in 2008, investigators already had a suspect. They "already know who it is," the former official said, adding that the person was a former CIA employee.
Seeking a subpoena under these circumstances may have breached the Justice Department's own guidelines on when prosecutors can try to compel reporters to disclose their sources. The guidelines state that the government must have exhausted all other reasonable means of identifying a suspect. Prosecutors must also get the approval of the Attorney General. Media subpoenas are a tool of last resort, and they are supposed to be narrowly crafted.
The subpoena for Risen's testimony expired at the end of the Bush administration, but then, during the first term of the Obama administration, prosecutors sought to renew it. A judge resisted prosecutors' second attempt, ordering them to get Eric Holder's sign-off. According to another former official, the judge thought the government had enough information to go ahead and indict their suspect without forcing Risen to testify.
Prosecutors ultimately charged Jeffrey Sterling, a former CIA employee, with disclosing secrets.
The pattern here suggests that prosecutors are getting more aggressive not just about finding the source of leaks, but about making journalists tools of their investigations.
Here are some upcoming titles that have caught my attention in the past few months. Pub dates given if available.
Untitled book by Andrew Cockburn (Times Books)
The author of Rumsfeld, and future father-in-law to SNL cast member Jason Sudeikis, is working on a true story about drones and assassins.
We Will Not Be Silent: How the White Rose Student Resistance Movement Defied Adolf Hitler by Russell Freedman (Clarion)
A story about a small group of university students who distributed anti-Hitler leaflets and condemned his policies.
Untitled book on Russian protest group Pussy Riot by Masha Gessen (Riverhead)
The author of The Man Without a Face, about the rise of Vladimir Putin, has an untold story of Russia's most famous dissidents.
Pub date: Fall 2013
Untitled book by Karen J. Greenberg (Crown)
Greenberg, the director of the Center on National Security at Fordham Law School, is writing a narrative account described as "how the power and legitimacy of the Department of Justice have been radically challenged in the wake of 9/11."
Casablanca by Meredith Hindley (Public Affairs)
A narrative history of the famous North African city, against the backdrop of the French resistance, Gestapo, Vichy agents, and American spies battling for control.
The Russian Revolution by Sean McKeekin (Basic)
Billed as "a revisionist account of the Russian Revolution" based on new information from Soviet archives.
Pub date: 2017
CIA Rogues and the Killing of the Kennedys: How and why CIA Agents Conspired to Kill JFK and RFK by Patrick Nolan (Skyhorse)
An investigation of "CIA involvement" in the assassinates of President Kennedy and his brother Robert. Timed for release with the 50th anniversary of JFK's death.
Pub date: Fall 2013
Rogue Code by Mark Russinovich (Thomas Dunne Books)
The third novel in a thriller series about cyber-expert Peter Joseph. The first two books were Zero Day and Trojan Horse.
Untitled book by Adam Segal (Public Affairs)
Segal, who's a senior fellow at the Council on Foreign Relations and heads up their cyber security initiatives will write about "the geopolitics of information and what diplomacy looks like in the age of big data."
Forty-Seven Days by Mitchell Yockelson (Caliber)
How Gen. John "Black Jack" Pershing led the Army and helped it come of age in World War I, with the service of soldiers such as George Patton, Douglas MacArthur, and Harry Truman.
Pub date: Summer 2015
Ken Anderson and Ben Wittes, two good friends of Dead Drop, are embarking on an intriguing and from my perspective quite welcome new project. They're writing a book that will pull together all the significant speeches Obama administration officials have given on national security law, and then "weave it all back together, creating a synthetic account of the administration’s views that is worth more collectively than the sum of its parts."
Called Speaking the Law, it will be "a kind of handbook on the framework for counterterrorism," using administration officials' own words as the foundation. "Consider it the White Paper the administration has never issued," say Ken and Ben.
I suspect Obama administration officials themselves will be among this book's most avid readers, given the authors' premise, and that journalists and scholars will find it useful as well:
"There is a myth that the administration has had little to say on the subject of its counterterrorism authorities, especially targeted killing and drones--largely because it has declined to release publicly its Office of Legal Counsel targeted killing memoranda. Part of the point of Speaking the Law is to show how wrong this myth really is. The administration has actually said a huge amount. It’s just that it has said a great deal of it orally, and has broken up its utterances among a number of different statements."
The authors are publishing the chapters serially online, and then the Hoover Institution will put out a hardcover version when all the work is finished. The introduction and first chapter are available now.