In a New York Times op-ed piece today, a former attorney general and two Justice Department officials from previous administrations defended the decision to subpoena AP telephone toll records in an important leak investigation.
While neither we nor the critics know the circumstances behind the prosecutors’ decision to issue this subpoena, we do know from the government’s public disclosures that the prosecutors were right to investigate this leak vigorously. The leak — which resulted in a May 2012 article by The A.P. about the disruption of a Yemen-based terrorist plot to bomb an airliner — significantly damaged our national security.
The trio who signed the New York Times editorial includes a former Assistant Attorney General for national security. The editorial counters critics of the current leak investigation and explains the steps that were taken before AP telephone records were obtained.
His office, which has an experienced national security team, undertook a methodical and measured investigation. Did prosecutors immediately seek the reporters’ toll records? No. Did they subpoena the reporters to testify or compel them to turn over their notes? No. Rather, according to the Justice Department’s May 14 letter to The A.P., they first interviewed 550 people, presumably those who knew or might have known about the agent, and scoured the documentary record. But after eight months of intensive effort, it appears that they still could not identify the leaker.
It was only then — after pursuing “all reasonable alternative investigative steps,” as required by the department’s regulations — that investigators proposed obtaining telephone toll records (logs of calls made and received) for about 20 phone lines that the leaker might have used in conversations with A.P. journalists. They limited the request to the two months when the leak most likely occurred, and did not propose more intrusive investigative steps.
The editorial also points out that the current investigation which is being conducted by the United States attorney for the District of Columbia has been mischaracterized.
Importantly, his assignment was to identify and prosecute the government official who leaked the sensitive information; it was not to conduct an inquiry into the news organization that published it.
The AP’s outrage over the phone records collected in the leak investigation rings hollow because of its own history. The AP actually fired one of its own reporters for publishing a story that included information that was under embargo by the US military. It was at the end of World War II in Europe and the reporter was the first to report the surrender of Germany, before the official announcement had been made.
That was then. There doesn’t seem to be any real principle behind the AP’s current practices other than competition and profits.