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Justice Department's secret subpoenas of phone records recall Nixon era

| Tuesday, May 14, 2013, 11:50 p.m.
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U.S. Attorney General Eric Holder holds a Medicare fraud news conference at which he said he recused himself last year from a national security leak probe in which prosecutors obtained the phone records of Associated Press journalists at the Justice Department May 14, 2013 in Washington, DC. Holder faced a large number of questions about his department's investigation targeting phone records and data from the Associated Press.

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.

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