This article first appeared in the St. Louis Beacon: The Justice Department has the authority to subpoena the telephone records of news reporters, legal experts say, but its secret subpoena of the records of 100 AP reporters is unprecedented in scope.
"Legally the government can do it," said Mark Zaid, a Washington lawyer who is an expert in national security law and the First Amendment. "But it has never been this big, involving this many people and this secretive."
In fact, there is a St. Louis case where a reporter's phone records have been subpoenaed. That is the ongoing espionage prosecution of Jeffrey Sterling. In that case, the Justice Department subpoenaed extensive private records of New York Times reporter James Risen. It obtained Risen's telephone, credit, bank and travel records to try to tie Sterling, a former CIA agent, to a leak of information about a CIA operation in Iran.
"In the 30 years since the department issued guidelines governing its subpoena practice as it relates to phone records from journalists," it wrote, "none of us can remember an instance where such an overreaching dragnet for newsgathering materials was deployed by the department, particularly without notice to the affected reporters or an opportunity to seek judicial review."
Deputy Attorney General James M. Cole wrote in response to the AP that the Justice Department's subpoenas were "limited in time and scope" and that the Justice Department had followed its rules requiring it to balance press freedom with prosecution of government leakers.
Cole wrote that the government had interviewed 550 witnesses and reviewed tens of thousands of documents before seeking the telephone toll records.
Telephone and business records are routinely subpoenaed as part of criminal investigations. But the attorney general's guidelines, promulgated 40 years ago by Attorney General Elliot Richardson, require prosecutors to take greater care before seeking to obtain reporters' records.
Although often thought of as a response to Watergate abuses, it was former Attorney General John N. Mitchell who first suggested the guidelines in 1970. Richardson implemented the proposal after taking over during the Watergate scandal.
The guidelines require that federal prosecutors first take "reasonable alternative investigative steps" to obtain information from sources other than reporters' records. Failing that, prosecutors are required to tell the news organization about their investigation and to try to negotiate for the information. But these latter requirements are dropped if disclosure of the investigation would threaten its success.
The Justice Department began its current leak investigation a year ago, partly at the request of Republicans who complained that the Obama administration had leaked a story about the CIA thwarting a terrorist plot that began in Yemen. The AP story reported that an al-Qaida affiliate in Yemen was plotting to detonate an upgraded version of the "underwear bomb" to be set off on a U.S.-bound airliner on the one-year anniversary of the killing of Osama bin Laden.
The Justice Department has maintained that the leak was a serious threat to national security. Critics of government prosecutions of leakers point out, however, that the government always says that leaks endanger national security. Those claims were made about the Pentagon Papers and WikiLeaks, but there is little evidence those disclosures endangered Americans.
Zaid said that the problem with the AP subpoenas is that they are "incredibly overbroad. It's not just a fishing expedition," he added, "it's a net for a tuna that is so wide it will kill a few dolphins."
To Zaid, the subpoena is a "shot across the bow" to "gauge the reaction of the Congress of the media and of a judge," and if it's not a strong reaction "they will do it again and again."
Tony Mauro, chairman of the Reporters Committee and Supreme Court correspondent for the National Law Journal, called the subpoenas an "inexcusable breach of respect for the independence of the news media and for the importance of confidential sources." He said that the action "puts an arctic chill on the invaluable information reporters glean from confidential sources every day, thwarting the public’s right to know what its government is doing."
Mauro said the episode highlights the need for a federal shield law enabling reporters to protect confidential sources. The Obama administration supported a federal shield law, but the law failed in Congress. In any event, it wouldn't have covered a case involving national security interests of a high order.
The Obama administration has been especially active in prosecuting leakers of government secrets. It has pursued six criminal cases against leakers, twice as many as previous attorneys general combined.