WASHINGTON, DC - JUNE 12: U.S. Attorney General Eric Holder answers questions while testifying before the Senate Judiciary Committee on Capitol Hill June 12, 2012 in Washington, DC. Holder faced questions from senators about the ongoing Operation Fast and Furious investigation, his decision to ordered two federal prosecutors to begin criminal investigations into a series of national security leaks to the news media and other subjects. (Photo by Chip Somodevilla/Getty Images)
The U.S. Justice Department has seized without notice comprehensive phone records for reporters and editors at the Associated Press, prompting the news agency to protest Monday directly to U.S. Attorney General Eric Holder.
"I am writing to object in the strongest possible terms to a massive and unprecedented intrusion by the Department of Justice into the newsgathering activities of The Associated Press," wrote AP CEO Gary Pruitt, in a letter to Holder that was posted on AP's website.
The Justice Department didn't explain why the records were subpoenaed, saying only in a statement that they were needed for investigation of an unspecified criminal matter. The statement said media organizations are notified in advance of such subpoenas "unless doing so would pose a substantial threat to the integrity of the investigation."
The phone records date to April and May of 2012. The AP reported that they may have been collected for an investigation of a leak to the AP of information used in a May 7, 2012, story about a foiled terror plot, including details of a CIA operation in Yemen. CIA Director John Brennan has said previously that he was questioned by the FBI about whether he was the AP's source for the story, which he denies.
The AP was told of the Justice Department's seizure of phone records on May 10 in a letter to its lawyers from the office of U.S. Attorney Ronald Machen in Washington, D.C. According to Pruitt's letter, the records involve more than 20 phone lines, including AP's general phone number in New York City and numbers in bureaus in New York City; Washington, D.C. (including the House of Representatives); and Hartford, Conn. More than 100 journalists work in the offices, according to the AP.
"DOJ has interpreted its powers broadly enough to grab phone records of media organizations without giving notices," says David Cross, lawyer at Crowell & Moring, who has specialized in electronic discovery law. "It certainly creates questions about the First Amendment. For 20 phone lines, that's a whole lot of information DOJ is sitting on beyond the target of the investigation."
The home-phone and cellphone records of several AP journalists were also seized, Pruitt wrote.
"These records potentially reveal communications with confidential sources, ... 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," wrote Pruitt.
The actions of the DOJ "shock the American conscience and violate the critical freedom of the press protected by the US Constitution and the Bill of Rights. Americans demand a full accounting," said Caroline Little, CEO of Newspaper Association of America.
The DOJ statement said, "We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations. Those regulations require us to make every reasonable effort to obtain information through alternative means ..."
But Pruitt wrote that DOJ's failure to narrow the scope of its subpoenas "to matters actually relevant to an ongoing investigation" is troubling. "The regulations require that, in all cases and without exception, a subpoena for a reporter's telephone toll records must be 'as narrowly drawn as possible.' This plainly did not happen."
Roger Yu, USA TODAY