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.