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Attorney General Holder defends Justice Department subpoena power against news media
Question of the Day
Attorney General Eric H. Holder Jr. on Tuesday defended the Justice Department's use of its subpoena power to monitor the telephone records of editors and reporters at The Associated Press in a leak investigation, but said he was unaware of the details because he had recused himself from the leak case.
Mr. Holder said the leak of sensitive information to AP was "very, very serious" and "put the American people at risk," although he did not elaborate.
Three former attorneys general said that while the Justice Department is obligated to investigate leaks of classified information that may pose a national security threat, such probes are unusual and generally narrowly focused.
Former Attorney General Michael B. Mukasey described the seizure of the AP phone records as "reprehensible conduct" and said it appeared that the Obama administration wanted to muzzle news accounts contradicting its "narrative" that al Qaeda terrorists were on the run.
"The underlying facts with regard to the AP story suggest that there was a somewhat broader gathering of data than should've ever been authorized," Mr. Mukasey, who worked for President George W. Bush, told Fox News.
Mr. Mukasey said it would be troubling if efforts were made to "discourage" people from talking to reporters.
'Never more disturbed'
Among others questioning the search was Lucy Dalglish, dean of the Philip Merrill College of Journalism at the University of Maryland, who described the scope of the subpoena for the AP records as "breathtaking."
Ms. Dalglish, former executive director of the Reporter's Committee for Freedom of the Press, said subpoenas historically have been more targeted toward a specific reporter's phone records. She said the chief purpose of the AP search could have been only the intimidation of government employees and journalists.
"No administration that values the free flow of information to the public would use this tactic. And I think the public and Congress will probably conclude the Justice Department has overplayed its hand. Notice is only required for phone records. It is highly likely they also have credit card receipts, airplane records and other digital information about all of these journalists. I've never been more disturbed about a government subpoena," she said.
The telephone records of at least 20 AP editors and reporters were sought by the subpoena in an effort to expose the leak. The subpoena targeted a story by Matt Apuzzo and Adam Goldman, which described a CIA operation in Yemen that stopped an al Qaeda-backed plot to detonate a newly designed bomb on a U.S.-bound airplane.
Mr. Holder said he was confident the prosecutors and investigators involved in the AP inquiry "followed all appropriate DOJ regulations," but did not know what facts led to the formation of the subpoena.
He said he withdrew from the inquiry to avoid any appearance of a conflict of interest, and his top deputy, James Cole, "ultimately authorized the subpoena" to secretly obtain the AP phone records.
"This was a very serious leak. I've been a prosecutor since 1976 and I have to say this is among, if not the most serious, it is within the top two or three most-serious leaks that I have ever seen," Mr. Holder said. "It put the American people at risk. That is not hyperbole. It put the American people at risk. And trying to determine who is responsible for that required very aggressive action."
Mr. Holder is expected to be questioned about the matter Wednesday during a hearing before the House Judiciary Committee. Committee Chairman Bob Goodlatte, Virginia Republican, said he plans to ask Mr. Holder "pointed questions" about the issue.
Members of Congress on both sides of the aisle had plenty of questions Tuesday.
Sen. Patrick J. Leahy, Vermont Democrat and Senate Judiciary Committee chairman, said he is "very troubled" by the accusations.
"The burden is always on the government when they go after private information — especially information regarding the press or its confidential sources," he said. "I am concerned that the government may not have met that burden."
Sen. Chuck Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, questioned whether Mr. Holder had signed off on the seizure of the AP records.
"The department's regulations state that prosecutors should obtain the attorney general's personal sign-off when a free press is at stake, so the Obama administration needs to be transparent with its rationale for such a sweeping intrusion and detail whether the process outlined in regulation and the U.S. attorney's manual were followed and justified for national security," he said.
U.S. Attorney Ronald C. Machen Jr. in Washington acknowledged in a letter to the AP that his office had obtained the records. His spokesman, Bill Miller, said Mr. Machen's office takes seriously its obligations to follow all applicable laws, federal regulations and Justice Department 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 before even considering a subpoena for the phone records of a member of the media. We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation," he said.
"Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws," he said.
The AP said it was notified of the seizure after the records already had been obtained. The news organization also said it held the story at the request of the administration for a time and published it only when officials told AP that national security concerns had been allayed.
The story on the foiled Yemen plot was published one day before President Obama planned to release the news publicly.
The White House on Tuesday said it had no knowledge of the investigation and referred all inquiries to the Justice Department.
"The president is a strong defender of the First Amendment," said White House spokesman Jay Carney. "He also of course recognizes the need for the Justice Department to investigate alleged criminal activity without undue influence."
Pattern of scandal
But Rep. Darrell E. Issa, California Republican and chairman of the House Oversight and Government Reform Committee, said the monitoring of AP telephone calls, including a line in the House press gallery, is disturbing.
"Coming within a week of revelations that the White House lied to the American people about the Benghazi attacks and the IRS targeted conservative Americans for their political beliefs, Americans should take notice that top Obama administration officials increasingly see themselves as above the law and emboldened by the belief that they don't have to answer to anyone," Mr. Issa said.
The seizure of the records was disclosed Monday by AP President and CEO Gary Pruitt, who described the action in a letter to Mr. Holder as a "massive and unprecedented intrusion" into news-gathering operations. Mr. Pruitt, in the letter, said the seized records included phone numbers of the AP bureaus in New York, Washington, Hartford, Conn., and the House press gallery, along with numbers of the home phones and cellphones of reporters.
FBI agents have questioned Mr. Holder, FBI Director Robert S. Mueller III and CIA Director John O. Brennan as part of the Yemen leak investigation.
The AP story noted that the CIA thwarted the plot but that those involved planned to use a bomb with a sophisticated design using a refined detonation system. The FBI said the upgraded bomb did not contain any metal, meaning it probably could have passed through an airport metal detector.
At the time, White House spokeswoman Caitlin Hayden said Mr. Obama was told of the plot in April 2012 and was assured that the device posed no threat to the public.
Mark Corallo, who was a spokesman for Attorney General John Ashcroft, described the AP seizure as "unprecedented." Former Attorney General Alberto Gonzalez described leak investigations as "fairly unusual," although he acknowledged that sometimes they are necessary if the information being released threatens national security.
He said that during the Bush administration, such a search would have required the approval of a deputy attorney general and likely the attorney general.
The handling of the AP investigation has led some to call for Mr. Holder's resignation. Among them is Reince Priebus, chairman of the Republican National Committee, who described freedom of the press as "an essential right in a free society."
The Obama administration has aggressively pursued leak investigations and brought more criminal prosecutions than any previous administration.
© Copyright 2013 The Washington Times, LLC. Click here for reprint permission.
About the Author
Jerry Seper is the investigative editor for The Washington Times.
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Ben Wolfgang covers the White House for The Washington Times.
Before joining the Times in March 2011, Ben spent four years as a political reporter at the Republican-Herald in Pottsville, Pa.
He can be reached at email@example.com.
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