WASHINGTON — The Justice Department violated its own rules when it secretly seized records for thousands of phone calls to and from journalists for The Associated Press as part of a leak investigation, the head of the company said Wednesday.
AP President and CEO Gary Pruitt told a luncheon gathering of journalists and others that the seizure was not only excessively broad, but that the department failed to notify AP in advance of the subpoena, as normally required. Department rules say a delay in notification is justified only if needed to protect the integrity of its investigation. Pruitt said that justification was unfathomable in this case.
The freedom of the press, Pruitt said, is a bedrock of the U.S. Constitution and the sweeping seizure of phone records threatens the very foundation of that freedom. “The DOJ’s actions could not have been more tailor-made to comfort authoritarian regimes that want to suppress their own news media,” he said.
The records of more than 20 phone lines assigned to the AP and its reporters and editors were obtained in secret by the department in April and May 2012 as the Obama administration tried to find out who leaked information to the AP for a story about a foiled plot in Yemen to bomb a U.S.-bound airliner. The Justice Department informed the AP of the seizure last month.
Pruitt, speaking at The National Press Club, said the seizure has stifled trusted sources not just for AP reporters but for other news organizations, too. In one instance, he said, AP journalists could not get a law enforcement official to confirm a detail that had been reported elsewhere. Reporters from other news organizations, he said, have personally told him that their sources have felt intimidated by what he called DOJ’s aggressive seizure.
He said the Justice Department has assured the AP that the seized phone records have been “walled off and protected and used for no other purpose than the leak investigation.” But he said that doesn’t excuse what the department did. “We need to make sure it doesn’t happen again,” he said.
Attorney General Eric Holder last month defended the secret gathering of AP phone records, saying that a serious national security leak required it. His deputy attorney general, James Cole, has said such disclosures risk lives and cause grave harm to the security of Americans. Cole has said that the records subpoena was narrowly drawn, consistent with department policy, and that the government does not have to inform a media outlet of a subpoena if it would threaten the leak investigation.
More recently, Holder acknowledged that a better balance needs to be struck between press freedoms and keeping national secrets safe. He has been meeting with the news media as the department reviews how it treats the media when it investigates national security leaks. The discussions were ordered by President Barack Obama, who has set a July 12 deadline for Holder to recommend any changes to the department’s procedures.
Pruitt said it’s hard to imagine how notifying the AP of the subpoena in advance could have harmed the investigation. Failure to do that denied the news organization the opportunity to contest or narrow the records demand. The phone records were in the possession of the phone company and there was no way the AP could have tampered with the records, he said. The FBI already had publicly announced its leak investigation, so the leaker had already been tipped off by the government itself, he added. And if fear of a tipoff were the standard in all cases, notification would never be made, he argued. “The exception would effectively swallow the rule,” Pruitt said.
Pruitt says the Justice Department must recognize the right of the press to receive advance notice and that the courts need to be involved — the department can’t just decide on its own to seize phone records. He also backed legislative efforts for a federal shield law for journalists to protect them from having to reveal confidential sources.