Bipartisan Justice Officials Back AP Investigation

Senior DOJ officials from the previous three administrations back the Obama DOJ's controversial subpoenaing of AP conversations.

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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.

[…]

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.

FILED UNDER: Law and the Courts, Media, National Security
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. gVOR08 says:

    Yes. In the rush to leap on the Obama scandal bandwagon, we seem to be giving the leaker and AP a pass on real harm to national security. It is one thing to leak “information the president and his senior appointees would prefer be kept private”. AP did not print information embarrassing to the president, they printed classified material, put a valuable intelligence asset at risk, and forced the premature shutdown of a productive operation.

    And the separate FOX case seems to be more of the same. If not illegal, highly irresponsible.

  2. Dave Schuler says:

    They would, wouldn’t they?

  3. JKB says:

    @Dave Schuler:

    My sentiments exactly. Really, they are just saying they wished they’d had the balls to do it.

    Of course, the Obama administration felt okay doing this because they thought they owned the AP.

  4. Just Me says:

    Yeah-I think the fact that the media has happily been in bed with Obama meant doing this would come at less risk to Obama.

    I would imagine there would have been a constant outcry with references to Big Brother had Bush done this and I am pretty sure Clinton would have had more fall out.

    Obama has the luxury of a compliant media that rarely holds him accountable for anything.

  5. James Joyner says:

    @Dave Schuler: Indeed. Hence my multiple caveats. If their story is true, then they’re probably acting reasonably. But my only basis for believing their story is true is that I only know their version of the story. Which, conveniently, is likely to remain the case given the nature of classified information.

  6. Kari Q says:

    Anyone else find it rich that conservatives are complaining about the press not holding the president accountable?

    I’m still uncomfortable with this situation. I’m not completely sure it was necessary, and not completely sure it wasn’t. Given what we’ve heard, if it is all true, then I’m inclined to agree that the DOJ’s actions were acceptable in this case.

  7. OzarkHillbilly says:

    @JKB:

    Of course, the Obama administration felt okay doing this because they thought they owned the AP.

    As opposed to FOX which owns every GOP politician.

    @Just Me:

    Obama has the luxury of a compliant media that rarely holds him accountable for anything.

    Yeah like that Jonathan Karl guy at ABC who reported transcribed doctored e-mails from a (no-doubt) Republican source but won’t tell who it was? That compliant media?

    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.

    But but but but but…..

    BENGHAZI!!!! IRS GOONS!!!!

  8. Sam Malone says:

    “…Of course, the Obama administration felt okay doing this because they thought they owned the AP…”

    “…Obama has the luxury of a compliant media that rarely holds him accountable for anything…”

    You clowns are talking about the same media that gave Bush43 a pass on Iraq, WMD, and Niger Yellow-Cake, right?
    The same media that allowed lies about Death Panels to flourish…in direct opposition to Obama and the signature achievement of his first term, right?
    What’s it like to go through every day guided by delusions? Is it difficult to navigate the world with no sense of reality? Does it ever penetrate your conscience that you are total douches? Just wondering.

  9. @Sam Malone:

    The problem with the political media is not, as many people suggest, that it is consistently pro-democrat or pro-republican, but rather that it is consistently pro-power. For all their posturing about “speaking truth to power”, most journalists tend to be cheerleaders for the powerful rather than real watchdogs.

  10. Blue Galangal says:

    @Kari Q:

    http://www.washingtonpost.com/world/national-security/fine-print-the-press-and-national-security/2013/05/20/04553d22-be3b-11e2-97d4-a479289a31f9_story.html#

    Whoever provided the initial leak to the Associated Press in April 2012 not only broke the law but caused the abrupt end to a secret, joint U.S./Saudi/British operation in Yemen that offered valuable intelligence against al-Qaeda in the Arabian Peninsula.

  11. Sam Malone says:

    @ Stormy…
    Stenographers. Nothing but stenographers. But as you said, stenographers that live for their access to power. David Gregory is not going to ever rock any boats that get him un-invited to the DC power brunches, or prevents his kids from going to Sidwell Friends.

    Anyone know why the site doesn’t remember me, and I have to enter my info everytime I comment?

  12. gVOR08 says:

    @Sam Malone: Excellent point. And good question about the site.

  13. mantis says:

    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.

    You’re off script. Repeat after me: “Worse than Watergate! Worst than Watergate! Worse than Watergate!”

  14. OzarkHillbilly says:

    @Sam Malone:

    Anyone know why the site doesn’t remember me, and I have to enter my info everytime I comment?

    Do you mean every time you visit? I find that for the first comment I make, I have to refill in all my data. After that it is automatically pasted in on all other comments for as long as I am on line (even if I leave the site and come back to it in that same “on-line session”). If I sign off and then fire my web browser back up later on, I have to go thru the whole rigamarole again and that is for all the sites I visit.

    I attribute it to my use of Firefox as when I used Internet Exploder I was automatically signed in. I don’t know how Chrome works so can say nothing about it, but I suspect that your problem is due to your web browser.

    WOW. Mark it on the calender: Today, I, the OzarkHillbilly, felt I might have an answer to somebody else’s tech problem. I think the fabric of the space-time continuum was just shredded.

  15. Hoot says:

    “Although that agent succeeded in foiling one serious bombing plot against the United States, he was rendered ineffective once his existence was disclosed.”

    The reports I have read say that the agent was physically handed the bomb for him to wear and use against an airplane, then directly turned it over to the CIA. How does it work for the agent to go back into the group after that? “Oops, I lost the bomb, can I have another?”

    There are other good reasons to pursue who leaked the operation to AP, but I’m not just going to take the government’s word that the agent could have continued to be useful to us after coughing up something so valuable to AQAP. That doesn’t seem very plausible.

  16. @gVOR08: Strange, because when Bush was President all you liberals loved the leaks, even when they did serious damage to national security.

    The problem here is that they aren’t focused on the leakers, but on the recipients of the material, and in manners not in accord with Constitutional guarantees. With the AP it looked like retaliation, and was a fishing expedition. With Fox they used a manner which called Rosen a co-conspirator in order to get around the 1st Amendment.

  17. James Joyner says:

    @Sam Malone: @gVOR08: @OzarkHillbilly: I don’t have any issues in Chrome or Firefox; then again, I’m typically a logged-on user.

    Changing your posting alias every few months might confuse the system but it should be correcting.

  18. Moosebreath says:

    @James Joyner:

    I am having the same problem on my company’s Internet Explorer.

  19. rudderpedals says:

    @James Joyner: I too have seen this in the last couple of days (firefox 20), where the username and email address don’t persist. I wouldn’t pileon without a bit more. Something is still recognizing me, even though the username and email fields are empty the site is able to keep track of posts I’ve upthumbed.

  20. Sam Malone says:

    @ William Teach…
    You mean when Dick and Scooter were outing a covert operative?
    I applauded sending Scooter to jail. Cheney should have gone with him.
    So I don’t know WTF you are talking about.
    Based on past experience…neither do you.

  21. anjin-san says:

    Anyone know why the site doesn’t remember me, and I have to enter my info everytime I comment?

    I’ve been having the same problem with OSX 10.7.5 & Chrome

  22. OzarkHillbilly says:

    @James Joyner:

    Changing your posting alias every few months might confuse the system but it should be correcting.

    I haven’t changed my alias in a couple years but the having to sign in every time I start Firefox has been going on ever since I switched to it from IE. Truth is, on the irritation scale of Burbling water, to Harley Davidson motorcycles driving under a bridge, this one rates a persistent house fly.

  23. OzarkHillbilly says:

    @anjin-san:

    I have to enter my info everytime I comment?

    It just did it to me for the first time….. Hmmmmm……. I blame Obama.

  24. OzarkHillbilly says:

    As to the meat of the post, Josh Marshall weighs in:

    As you can probably tell, I’m a bit conflicted about this whole episode. I’ve spent a decent amount of money over the last decade paying for pricey legal advice to keep myself and other TPM reporters out of trouble. So the issues raised here are ones I’m quite familiar with from personal experience and about which I’ve received a lot of professional advice. But the DOJ didn’t indict anyone or seemingly make any effort to. They took a step I think they should not have taken. But they did so putting together a case against a government employee who more or less in plain sight (thanks to Rosen, in part) leaked what looks to have been highly classified information about US spy networks overseas. It’s difficult for me not to be more shocked by the self-interested preening of fellow journalists over a comically inept reporter and source than the arguable dangers this episode holds for press freedoms. Indeed, I’ve tried and failed. I can’t.

    ps: didn’t do it this time.

  25. wr says:

    @OzarkHillbilly: “WOW. Mark it on the calender: Today, I, the OzarkHillbilly, felt I might have an answer to somebody else’s tech problem”

    Alas, no. Until yesterday the site functiined as you described. Now it doesn’t remember past the posting of one message.

  26. fred says:

    Some in the mainstream media chase headlines and don’t care if they put our troops or state dept people at risk, especially those overseas. All the mainstream media CEOs should set guidelines for people working for them making sure that the employees know that national security and those employees are indispensable to our safety and zero tolerance is the policy.

  27. fred says:

    I am having the same problem having to input my info each time I make a comment. this has been going on for about a week now. Hope a fix is in and we can revert to former ways.