Justice Department's secret subpoenas of phone records recall Nixon era
The Justice Department's decision to secretly subpoena months of reporters' phone records is drawing comparisons with Nixon-era tactics and raising anew questions about the aggression with which the Obama administration has cracked down on unauthorized leaks of information.
Two of the Justice Department's top officials, including Attorney General Eric Holder, defended the subpoenas of two months of Associated Press reporters' phone records.
Gary Pruitt, Associated Press CEO, called it “a massive and unprecedented intrusion” that violated the department's guidelines.
Federal investigators snagged records for more than 20 telephone lines in AP bureaus in New York, Washington, Hartford, Conn., and the House of Representatives. The dragnet almost certainly captured information about reporter-source conversations that had nothing to do with the leak investigation, Pruitt said. More than 100 reporters had access to the lines.
Holder supported the action — while making clear he didn't sign off on it — during a news conference on Tuesday. The subpoenas are part of an investigation into the leak of classified information, possibly regarding a May 7, 2012, story about a foiled terror plot. Holder called the leak one of the worst he's seen. The tactics remind some of an earlier era.
“You really have to go back to the Nixon administration,” said Jane Kirtley, media ethics and law professor at the University of Minnesota and executive director of the Reporters Committee for Freedom of the Press from 1985-99.
Holder said the leak “put the American people at risk, and that is not hyperbole.”
He didn't explain how, which is the crux of debates over the boundary between national security secrets and the right of the public to oversee its government.
Advocates for public oversight argue the government hid embarrassing facts behind national security claims, from the Pentagon Papers case in the Vietnam War era to the secret surveillance program of George W. Bush's administration.
Obama, who won office in 2008 partly by capitalizing on public fatigue with the Bush era, promised to be better. On his first day in office, Jan. 21, 2009, he issued a memo to department and agency heads saying that his administration “is committed to creating an unprecedented level of openness in government.”
His administration brought more prosecutions under the World War I-era Espionage Act than all other presidents combined, the watchdog journalism group Pro Publica said.
In the 92 years between the Espionage Act's enactment and Obama's inauguration, it was used to indict three people, according to Pro Publica's investigation. Obama's Department of Justice used it to indict five people and the Army used it to charge one — Bradley Manning, a private accused of leaking a trove of classified documents.
“I'm aghast to see how relentlessly this administration and the Justice Department have been pursuing” leaks, Kirtley said.
Department guidelines for subpoenaing reporters' phone records require “the express authorization of the attorney general.”
Holder said he recused himself from the investigation after being interviewed by the FBI, so his deputy made the decision.
The guidelines were written in response to secret subpoenas of reporters' phone records by the Nixon administration in the early 1970s, Kirtley said, adding, “Those guidelines have been intact for a long time, and the world has not collapsed.”
Investigators must try to get the information from other sources and, if it won't compromise an investigation, negotiate with the media outlet before seeking the subpoenas, the guidelines state.
“This plainly did not happen,” Pruitt said in a letter to Holder on Monday.
Deputy Attorney General James Cole, in a letter to Pruitt on Tuesday, said he complied with the guidelines. The leak investigation included “conducting over 550 interviews and reviewing tens of thousands of documents before seeking the (telephone) toll records at issue.”
The subpoenas probably didn't violate law, but their disclosure exposed an uncomfortable truth: Freedom of the press often depends upon respect for the spirit of the law more than the letter of it, said Mary-Rose Papandrea, a law professor who focuses on media law and national security at Boston College.
“I think this revelation undermines our confidence that the Department of Justice will respect these First Amendment principles,” Papandrea said.
Mike Wereschagin is a staff writer for Trib Total Media.
Show commenting policy
TribLive commenting policy
You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.
We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.
While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.
We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers.
We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.
We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.
We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.
We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.
- Man surrenders after standoff in Middle Hill
- Woman dies after bleeding on sidewalk outside Carrick pizzeria
- Security policies limit ‘insider threat’ at airports, TSA says
- Pet chiropractic more popular in Western Pa., but doubts linger
- Downtown holiday parade festive, but weather dampens turnout
- Group urges Port Authority of Allegheny County to fund more transit routes
- Newsmaker: Tyra Oliver
- Alpine touring skiing movement faces uphill climb in Western Pa.
- Legislators, Wolf agree on one thing: Higher work zone fines
- Forbes Road Career and Technology Center students restore vehicle that will be donated
- Renovation planned for blighted homes in Garfield