The Justice Department has disclosed that it secretly seized two months worth of office, home and cellphone records from Associated Press journalists as part of a leak investigation, a move the AP and other press freedom advocates are calling "without precedent" and deeply troubling.
The phone records from April and May 2012 were sought in connection with a yearlong investigation into the possible unauthorized disclosure of classified information about a foiled al-Qaida plot in Yemen to detonate a bomb aboard a U.S.-bound airplane on the one-year anniversary of the killing of Osama bin Laden.
The AP denounced the government's seizure "in the strongest possible terms" in a letter to Attorney General Eric Holder, a copy of which was posted on its website Monday. Calling the record grab "massive and unprecedented," Gary Pruitt, the AP's president and chief executive officer, accused the U.S. Attorney in the District of Columbia of overreaching.
"There could be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters," Pruitt said. "These records potentially reveal communications with confidential sources across all of the newsgathering 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."
More than 100 journalists work in the offices whose phone records were targeted for that two-month period.
Specifically, the government targeted the home, cell, and office phones of five reporters: Pulitzer Prize winners Matt Apuzzo and Adam Goldman, along with Kimberly Dozier, Eileen Sullivan, Alan Fram, and their editor, Ted Bridis, as well as all incoming and outgoing calls for the general AP offices in New York, Washington, D.C., Hartford, Conn., and AP reporters in the House of Representatives press gallery: more than 20 separate telephone lines in all, the AP claims.
Bill Miller, a spokesman for the U.S. Attorney for the District of Columbia, whose office is conducting the inquiry, issued a brief statement saying that while the government values press freedom and the longstanding procedural guidelines that require the Justice Department to negotiate with a media organization before moving to seize its records, the law permits the agency not to do so if it would "pose a substantial threat to the integrity of the investigation."
Gregg P. Leslie, the legal defense director for the Reporters Committee for Freedom of the Press, said relying on that exemption made no sense. "How could the integrity of the investigation be compromised," he declared, "when the leak they are investigating has already occurred?"
The government's action, coming on the heels of the administration's disclosures that the Internal Revenue Service targeted Tea Party and other conservative Americans, prompted a fierce response Monday from many First Amendment lawyers and other press and free speech activists.
Dori Ann Hanswirth, who heads the media law group at Hogan Lovells and is representing Jana Winter, a Fox News reporter, in her effort to protect confidential sources, said the government was increasingly seeking information from news organizations about their sources -- issuing subpoenas for telephone records, notebooks, and demanding testimony from reporters themselves.
"This is a terrible trend," she said. "What 'way of life' are our troops fighting for if the U.S. government is snooping on journalists?"
Susan Buckley, a partner at Cahill Gordon & Reindel, who has represented numerous journalists, including me, in First Amendment fights, called the government's move "very scary." Journalists, she said, may soon have to "revert to parking garages in the dead of night" to meet sources, "assuming you could find one anymore without surveillance cameras."
Her Cahill partner, Floyd Abrams, a noted First Amendment champion, said the government's latest intrusion threatens the press' "ability to function and the public's ability to learn about its government." The Justice Department, he said, "would have better served the public by vigorously supporting the adoption of a federal shield law to protect journalists as they protect their sources."
The Obama administration, however, has not promoted such legislation. Rather, armed with a passion for secrecy and message discipline, it has vigorously prosecuted suspected leaks of classified information. Thus far, the Justice Department has prosecuted six officials for unauthorized disclosures of classified information, more than any other previous administration.