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Government secretly obtains phone records from journalists

Prosecutors targeted the Associated Press in an attempt to learn who leaked information about the CIA and an apparent terrorist plot in Yemen.

May 13, 2013|By Richard A. Serrano, Washington Bureau
  • Federal prosecutors collected records from more than 20 phone lines belonging to the Associated Press and its journalists, a move strongly condemned by the news service and others.
Federal prosecutors collected records from more than 20 phone lines belonging… (Ben Hider / Getty Images )

WASHINGTON — Federal prosecutors secretly obtained telephone records from more than 20 lines belonging to the Associated Press and its journalists in an attempt to learn who leaked information on how the CIA thwarted an apparent terrorist plot hatched in Yemen.

The Associated Press on Monday called the action a "massive and unprecedented intrusion" into news gathering. The government subpoenaed records covering a two-month period in early 2012 from telephones in the wire service's offices in New York, Washington and Hartford, Conn., as well as the homes and cellphones of at least five reporters and an editor.

The American Civil Liberties Union called the subpoenas "an unacceptable abuse of power."

In the past, prosecutors have obtained telephone records from individual journalists, but subpoenas directed at so many telephone lines in a single leak investigation are unusual.

The records would not have included the contents of the calls, but would have shown the phone numbers of people or agencies that reporters called, and could have included numbers of those who called reporters and the length of the conversations.

Prosecutors are known to be investigating who tipped the Associated Press about a secret CIA operation that foiled a plot to bomb an airplane bound for the U.S., an attack that would have coincided with the one-year anniversary of the killing of Al Qaeda leader Osama bin Laden.

The Associated Press story, published May 7, 2012, said Al Qaeda operatives had devised a new type of bomb that would not contain metal, making it easier to evade airport security. The Associated Press reported that the terrorists had not yet selected a target city or purchased a plane ticket "when the CIA stepped in and seized the bomb."

The Associated Press said it had learned about the plot a week earlier but agreed to hold off publishing because of the sensitivity of the investigation. The wire service said it went ahead after it was told "those concerns were allayed."

Last June, Atty. Gen. Eric H. Holder Jr. announced that he had appointed U.S. Atty. Ronald C. Machen Jr. to investigate the leak, and said he was confident prosecutors would follow the facts and evidence wherever they led.

"The unauthorized disclosure of classified information can compromise the security of this country and all Americans, and it will not be tolerated," Holder said.

John Brennan, the former White House counter-terrorism advisor who became CIA director in March, testified on Capitol Hill in February that the FBI had questioned him about whether he was the Associated Press' source on the foiled plot. He denied it, calling the breach an "unauthorized and dangerous disclosure of classified information."

The Obama administration has been vehement about tracking down leaks of classified information. Gregg Leslie, legal defense director with the Reporters Committee for Freedom of the Press, said the administration seemed to be starting criminal investigations into all leaks of classified information, often in disregard of 1st Amendment rights.

"We've given up thinking they might respect the role of the press," Leslie said.

Aides to Machen declined to discuss the matter, except to indicate in a short statement that prosecutors had subpoenaed the telephone records and other material after trying to obtain them through "alternative means."

"Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws," the statement said.

But Machen's office noted that the government was not required to notify a media organization in advance about a records seizure if doing so "would pose a substantial threat to the integrity of the investigation." Prosecutors informed the Associated Press on Friday that they had obtained the records.

Justice Department policy typically calls for the attorney general to sign off on any decision to obtain records of news organizations. Officials did not say whether Holder had done so in this case.

Because phone logs are considered the property of the telephone company, not the person who uses the phone, prosecutors typically obtain them with a subpoena to the company.

"There can be no possible justification for such an overbroad collection of the telephone communications of the Associated Press and its reporters," Gary B. Pruitt, president and chief executive of the Associated Press, said in a letter to Holder.

Saying the records "potentially reveal" discussions with confidential sources, Pruitt added that the material also would have provided federal law enforcement officials with private news gathering information "that the government has no right to know."

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