Senior DOJ officials from the previous three administrations back the Obama DOJ’s controversial subpoenaing of AP conversations.
William Barr (Bush 41), Jamie Gorelick (Clinton), and Kenneth Wainstein (Bush 43) co-sign a NYT op-ed titled “Stop the Leaks.”
As former Justice Department officials who served in the three administrations preceding President Obama’s, we are worried that the criticism of the decision to subpoena telephone toll records of A.P. journalists in an important leak investigation sends the wrong message to the government officials who are responsible for our national security.
While neither we nor the critics know the circumstances behind the prosecutors’ decision to issue this subpoena, we do know from the government’s public disclosures that the prosecutors were right to investigate this leak vigorously. The leak — which resulted in a May 2012 article by The A.P. about the disruption of a Yemen-based terrorist plot to bomb an airliner — significantly damaged our national security.
The United States and its allies were trying to locate a master bomb builder affiliated with Al Qaeda in the Arabian Peninsula, a group that was extremely difficult to penetrate. After considerable effort and danger, an agent was inserted inside the group. Although that agent succeeded in foiling one serious bombing plot against the United States, he was rendered ineffective once his existence was disclosed.
The leak of such sensitive source information not only denies us an invaluable insight into our adversaries’ plans and operations. It is also devastating to our overall ability to thwart terrorist threats, because it discourages our allies from working and sharing intelligence with us and deters would-be sources from providing intelligence about our adversaries. Unless we can demonstrate the willingness and ability to stop this kind of leak, those critical intelligence resources may be lost to us.
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Did prosecutors immediately seek the reporters’ toll records? No. Did they subpoena the reporters to testify or compel them to turn over their notes? No. Rather, according to the Justice Department’s May 14 letter to The A.P., they first interviewed 550 people, presumably those who knew or might have known about the agent, and scoured the documentary record. But after eight months of intensive effort, it appears that they still could not identify the leaker.
It was only then — after pursuing “all reasonable alternative investigative steps,” as required by the department’s regulations — that investigators proposed obtaining telephone toll records (logs of calls made and received) for about 20 phone lines that the leaker might have used in conversations with A.P. journalists. They limited the request to the two months when the leak most likely occurred, and did not propose more intrusive investigative steps.
The decision was made at the highest levels of the Justice Department, under longstanding regulations that are well within the boundaries of the Constitution. Having participated in similar decisions, we know that they are made after careful deliberation, because the government does not lightly seek information about a reporter’s work. Along with the obligation to investigate and prosecute government employees who violate their duty to protect operational secrets, Justice Department officials recognize the need to minimize any intrusion into the operations of the free press.
I remain queasy about the chilling effect this practice could have on investigative journalism but am inclined to agree.
The press is entitled to investigate what the government is doing, including revealing information the president and his senior appointees would prefer be kept private. Indeed, doing so is their duty.
At the same time, members of the press are citizens of the Republic and have certain responsibilities. While I generally support the notion of shield laws (provisions in many states and localities protecting “journalistic privilege” by exempting reporters from being compelled to testify about conversations with or even identify sources) they shouldn’t be absolute. In extraordinary cases, particularly where the source is accused of a violent crime or a breach of national security that put lives in real jeopardy, the public’s interest in justice trumps the press’ interest in secrecy.
Further, while all we have so far is the DOJ’s word for it, I find some comfort in the fact that they say they exhausted other means first before resorting to subpoenaing the AP phone records. And that it wasn’t a far-flung fishing expedition but rather a very targeted investigation bounded by a narrow timeline. Further, they weren’t wiretapping the phone lines; they were simply seeing which phone numbers were calling which reporters and at what times.
If this all stands up to further scrutiny, it strikes me that a reasonable balance was struck between safeguarding the First Amendment and safeguarding the nation’s intelligence assets.
