Maybe most surprising in the Justice Department’s subpoenas of phone records from The Associated Press was how wide the Obama administration cast its net: 20 phone lines, used by up to 100 reporters.
But fishing expeditions, it turns out, are how the Justice Department does a lot of its investigative work in the post-9/11 world, and despite President Obama’s vows to protect press freedom here and push for it abroad, journalists are getting caught in the administration’s dragnet.
“In the 30 years since the [Justice] Department issued guidelines governing its subpoena practice as it relates to phone records from journalists, none of us can remember an instance where such an overreaching dragnet for news gathering materials was deployed by the department, particularly without notice to the affected reporters or an opportunity to seek judicial review,” the Reporters Committee for Freedom of the Press, which represents more than 40 major news organizations, wrote in a letter to Attorney General Eric H. Holder Jr.
Expressing outrage over the heavy-handed tactics of the Justice Department, Bruce Brown, the committee’s executive director, and Gregg Leslie, its legal defense director, said the Obama administration is redefining the country’s long-standing constitutional commitment to freedom of the press.
The Justice Department sought the AP’s phone records in an investigation into who leaked information that embarrassed the administration last year, exposing that it had been working to thwart a terrorist attack at a time when officials said they had no specific knowledge of any plots.
The AP isn’t the only press organization that has come under target.
On Monday news reports said the Justice Department seized phone records and emails sent to a private account of Fox News’ chief Washington correspondent, James Rosen, in an investigation into a 2009 story about U.N. sanctions and North Korea’s nuclear program.
In court filings, the department even said Mr. Rosen may have aided and abetted in a crime by trying to pry the information, which was classified, from his source.
The Justice Department even tracked Mr. Rosen’s comings and goings from the State Department, according to a 2010 affidavit for a search warrant, first reported by The Washington Post.
“We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter,” said Michael Clemente, Fox News’ executive vice president of news. “In fact, it is downright chilling. We will unequivocally defend his right to operate as a member of what up until now has always been a free press.”
The affidavit filed by FBI agent Reginald Reyes said there was “probable cause” to believe that Mr. Rosen, who was identified only as “the reporter,” has violated a provision in U.S. law prohibiting unauthorized disclosure of defense information. Mr. Reyes then labeled Mr. Rosen a possible “co-conspirator” in seeking access to two days’ worth of emails.
The government is prosecuting a State Department adviser Stephen Kim, a North Korea analyst, for revealing secrets to the news organization. He is awaiting trial. No charges have been filed against Mr. Rosen.
Sen. Marco Rubio, Florida Republican, quickly condemned the action taken to determine Mr. Rosen’s sources, and blamed the White House for creating a culture where it can occur.
“We must insist that federal agents not use legitimate investigations as an excuse to harass journalists they deem unfriendly to the president or the administration,” he said in a statement. “We shouldn’t even have to ask if our government would do such a thing, but unfortunately, as the unfolding IRS scandal shows, this White House has created a culture where we do.”
AP President and CEO Gary Pruitt said the government’s conduct has had a chilling effect on news-gathering, with sources unwilling to contact reporters for fear of legal exposure.
The White House press corps aggressively questioned White House spokesman Jay Carney on Monday about whether Mr. Obama believed Mr. Rosen may have committed a crime by publishing the story on North Korea.
One reporter asked Mr. Carney how the U.S. differs from other countries that monitor their media and quash press freedoms.
Mr. Carney said repeatedly that he could not comment on the “ongoing investigation.”
He said the president is a “strong defender of the First Amendment,” but he must balance that commitment against national security interests and is “insistent that we protect our secrets, that we protect classified information.”
“We take very seriously the leaks of classified information because leaks can endanger the lives of men and women in uniform and other Americans serving overseas for our country,” Mr. Carney said.
The Justice Department released a statement Monday arguing that “leaks of classified information to the press can pose a serious risk of harm to our national security and it is important that we pursue these matters using appropriate law enforcement tools.”
Federal guidelines require that a subpoena “should be narrowly drawn as possible, it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.”
In the AP’s case, the Justice Department obtained records from 20 phone lines used by 100 reporters, including a line in the House of Representatives press gallery, in an attempt to find out who leaked details of a successful CIA operation in Yemen that stopped an airliner bomb plot on the one-year anniversary of the May 2, 2011, killing of Osama bin Laden.
The U.S. attorney’s office for the District of Columbia also defended its actions, arguing that before it approved the FBI’s search warrant, it had “exhausted all reasonable non-media alternatives for collecting this evidence.”
Mr. Leslie said the fishing expedition through reporters’ emails and phone records is the most expansive he has ever seen, although there were more limited instances of the Justice Department and other law enforcement agencies intruding into reporters’ private news gathering since the 1970s.
In fact, he said, there seems to be a 10-year cycle of the government treading on the First Amendment. In 1980, the Justice Department seized six months of phone records of a New York Times reporter in Atlanta following major leaks to the press on the Abscam investigation. The outrage over that action led to changes in attorney general guidelines on subpoenas to the press for testimony and evidence to cover telephone records.
In 1991, the Treasury Department showed up on the doorstep of a reporter demanding to know his sources after he published an article in Corporate Financier magazine citing non-public documents.
The investigation extended to include the telephone records of the Alicia Patterson Foundation, which awarded the reporter a fellowship for 1992.
In 2001, phone records for a different AP reporter covering an FBI investigation of senators was the focus of a secret subpoena.
“Every 10 years, [the Justice Department] has to learn the lesson, it seems,” Mr. Leslie said.
• This article is based in part on wire service reports.