THE ASSOCIATED PRESS/FOX NEWS SURVEILLANCE SCANDAL
On May 13, 2013, it was learned that the Department of Justice (DOJ) had secretly obtained the records of all calls which had been routed through some 20 separate Associated Press (AP) telephone lines in April and May of the previous year. Moreover, even some personal phone lines belonging to AP staff were subjected to DOJ surveillance.
DOJ explained that its actions were part of an investigation into AP's May 7, 2012 publication of a story—based on classified, leaked information—disclosing that the CIA had successfully infiltrated an al Qaeda plot to detonate an "underwear bomb" aboard an American airliner. All five reporters (and an editor) who had been assigned to that particular AP story were among those whose phone records were seized by DOJ.
According to strict DOJ rules, the phone records of news organizations can be obtained only with a subpoena that is issued after "all reasonable attempts" have been made to get the same information from other sources—which DOJ elected not to do. Further, DOJ rules stipulate that the subpoena must be approved personally by the Attorney General.
But at a May 14, 2013 press conference, Attorney General Eric Holder announced that he had recused himself from DOJ's investigation of AP, and that Deputy Attorney General Jim Cole had signed off on the subpoena in question. Thus, when reporters began asking Holder specific questions about the seizure of AP's phone records, the Attorney General pleaded ignorance. “I frankly don’t have knowledge of those facts,” he contended.
In testimony to the House Judiciary Committee on May 15, 2013, Holder said that the reason why he had recused himself from the AP investigation was because he was a “fact witness,” meaning that he had access to the classified data and had been questioned about it. As Holder told Republican congressman Jim Sensenbrenner of Wisconsin: "I was interviewed as one of the people who had access to the info." In other words, the Attorney General himself was a potential suspect in the leak. But Holder also said that he could not recall precisely when he had recused himself; that he had not recused himself in writing; and that he had never told the White House about his recusal.
Upon learning of the phone-records surveillance, AP condemned DOJ's “massive and unprecedented intrusion” into its news-gathering activities. In a letter to Holder, AP president and CEO Gary Pruitt stated:
“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP's newsgathering operations and disclose information about AP's activities and operations that the government has no conceivable right to know.”
AP reporters were equally angered. “We all know that confidential sourcing is the lifeblood of what we do, and people can’t come to us if they think they’re going to be compromised,” said one reporter. “It’s hard enough getting sources, now we’re afraid this is going to have a chilling effect.”
On May 16, 2013, the Washington Post broke a major story explaining the real motives behind the Justice Department's surveillance of AP's phone lines. Specifically, said the Post, AP was prepared to publish its scoop (about the aforementioned CIA infiltration of an al Qaeda plot) on May 2, 2012. But CIA Deputy Director Michael J. Morell told the news service that publishing the story at that point would compromise a “sensitive intelligence operation” with serious national-security implications; that his Agency would need several more days to protect the secrecy of whatever it had in the works; and that AP could publish its story as soon as that had been accomplished.
A few days later, on May 7, 2012, CIA officials informed AP that national-security concerns were “no longer an issue” in the matter involving the al Qaeda story, but nonetheless requested that the news service delay publication for one more day. This was because the Obama administration was planning to announce the CIA's successful counterterrorism operation the following morning—May 8, 2012—when President Obama's top counterterrorism adviser, John Brennan, was slated to appear on Good Morning America. Given the fact that national security was no longer an issue, however, AP disregarded the CIA's request and proceeded to publish the story on May 7. That is what prompted Eric Holder's Justice Department to illegally procure AP's telephone records.
On May 20, 2013, it was revealed that DOJ's efforts to intimidate the media went beyond targeting reporters and editors at the Associated Press. The Washington Postreported that DOJ had also: seized the phone records of Fox News reporter James Rosen; used Rosen's security badge to access records tracking his movements at the State Department; traced the timing of Rosen's calls with a Department security advisor suspected of giving him classified information; obtained a search warrant to access Rosen's personal emails; and seized the phone records of Rosen's parents.
That same day (May 20), it was reported that two additional Fox News staffers—reporter William La Jeunesse and producer Mike Levine—had likewise been targeted by DOJ.
Rosen's case in particular centered around his involvement with State Department advisor Steven Kim, an arms expert with security clearance. A naturalized citizen from South Korea, Kim was indicted in 2009 for telling Rosen that the intelligence community believed that North Korea would respond to additional UN sanctions (against its nuclear-weapons program) by defiantly conducting further tests of its nuclear capabilities. Rosen published a story to that effect on June 11, 2009, the same day that a top-secret report was made available to Kim and 95 other members of the intelligence community. Using the surveillance tactics cited above, the FBI built a case contending that Rosen's information had come directly from that document, and that Kim, for revealing it, was in violation of the Espionage Act.
It should be noted, however, that Kim had not obtained unauthorized access to the information in the report; he had merely conveyed it to a reporter—something that occurs virtually every day. Furthermore, according to the New York Times, four months prior to passing along the information to Rosen, Kim had been asked by a State Department press officer to speak to the reporter about North Korea, “and the two began to talk and exchange e-mails.”
In building its case against Kim, DOJ—invoking the Espionage Act—secretly (without notifying Rosen) issued a subpoena, personally signed by Eric Holder, to gain access to two days’ worth of Rosen’s personal emails and to all of his email exchanges with Kim. The subpoena stated that there was “probable cause to believe” that Rosen was a “co-conspirator and/or aider and abettor” committing the criminal offense. Two judges initially denied DOJ's request for approval of the subpoena, before a third judge, Royce C. Lambert, the chief judge in the Federal District Court for the District of Columbia, overturned those rulings.
In an affidavit, FBI agent Reginald Reyes elaborated on DOJ’s rationale for investigating Rosen: “From the beginning of their relationship, the Reporter [Rosen] asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information about the Foreign Country. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”
Guardian journalist Glenn Greenwald explained the implications of the DOJ targeting Rosen:
“Under U.S. law, it is not illegal to publish classified information. That fact, along with the First Amendment’s guarantee of press freedoms, is what has prevented the U.S. government from ever prosecuting journalists for reporting on what the U.S. government does in secret. This newfound theory of the Obama DOJ -- that a journalist can be guilty of crimes for ‘soliciting’ the disclosure of classified information -- is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself.”
Fox News’ Brit Hume echoed that assessment. “The Obama-Holder Justice Department is now prepared to treat the ordinary newsgathering activities of reporters to seek information from government officials as a possible crime,” he warned.
The fact that Holder personally signed off on the subpoena involving Rosen is highly significant, because on May 15, 2013, the Attorney General had testified, under oath, to the House Judiciary Committee: “With regard to the potential prosecution of the press for the disclosure of material, that is not something I've ever been involved in, heard of, or would think would be wise policy.” But that is precisely what DOJ was trying to do in the Rosen case.
On May 30, 2013, Eric Holder conducted an “off-the-record” meeting with certain media editors and promised changes in the way the Justice Department would handle future investigations involving reporters. Many editors boycotted the meeting to protest its secrecy.
On July 12, 2013, after intense pressure from Congress and the press, Holder sent President Obama a report promising that future DOJ policies vis a vis leak investigations would “forbid the targeting of journalists who are pursuing ‘ordinary newsgathering activities’ and forbid use of warrants against journalists if the target of the investigation is someone other than the reporter, e.g., a government official who is leaking classified information to a journalist.” Holder's report also stated that “contrary to DOJ’s prior practice, the department will now inform affected media of subpoenas that seek journalists’ phone records and emails unless the Attorney General determines that doing so would pose a threat to the DOJ investigation and, in any event, DOJ would so inform affected media no later than 90 days after issuance of subpoenas for journalists’ records and correspondence.”
On July 31, 2013, the House Judiciary Committee issued a report on its investigation into the discrepancies between Holder's sworn congressional testimony and his decision to obtain a search warrant for the emails of James Rosen. The report stated that Holder had made a "deliberate effort to avoid answering for [his] questionable decisions and actions"; that he had given "deceptive and misleading" testimony in "an attempt to circumvent proper congressional oversight and accountability by distorting the truth about the Justice Department's investigative techniques targeting journalists"; and that "the Justice Department [had] inappropriately interpreted the Privacy Protection Act of 1980 to obtain a search warrant for Mr. Rosen's emails."