“We strive in every case to strike the proper balance between the public’s interest in the free flow of information and the public’s interest in the protection of national security and effective enforcement of our criminal laws,” Cole wrote.
Machen was appointed this past summer by Holder to lead the leak inquiry into the AP story, which was published last May and included details of a CIA operation in Yemen and Saudi Arabia that foiled an al-Qaeda plot to set off explosives on a U.S.-bound airplane.
Officials said the disclosures risked endangering a U.S. operative in Yemen. But the AP said that it delayed publishing its story on May 2, 2012, because federal officials cited national security concerns. The AP published its story on May 7 only after federal officials told the news organization that the concerns had been allayed, according to the AP.
A grand jury was empaneled in Washington’s federal court this year to begin hearing evidence in the case. In February, at the request of national security prosecutors in Machen’s office, the grand jury issued subpoenas for telephone companies to turn over records for the AP reporters in Connecticut, New York and Washington for the two-month period before the story was written.
The AP was notified of the records’ seizure based on a specific timeline spelled out in Justice Department rules, an agency official said. The department is required to notify media organizations within 45 days that records have been obtained or seek a 45-day extension and then alert the news organization. In the case of the AP, the Justice Department waited 90 days.
“You can assume all the boxes were checked and proper steps were taken here,” said a government official with knowledge of parts of the inquiry, speaking on the condition of anonymity to discuss an ongoing probe. “They knew there would be blow-back.”
Pruitt, the AP president, said Tuesday that Cole’s letter did not address the organization’s concerns, adding that it failed to provide a reason for the broad scope of the subpoenas or for investigators’ decision to keep the seizure secret. Pruitt reiterated that the AP did not publish its story until after officials assured the organization that the national security concerns they originally cited had passed.
Jamie Gorelick, a former deputy attorney general and now a partner at the WilmerHale law firm, said the publication of the details of the Yemen plot appears to be serious enough to justify the steps the Justice Department has taken to investigate the leak. “Those are really sensitive operational details, where lives can be saved or lost,” she said.
Gorelick said that she remembers the pressure to get to the bottom of leaks when she was in the department — and that she imagines that Holder is under even more pressure to investigate such leaks now since the attacks of Sept. 11, 2001.
“There is a lot of pressure on the department from the national security community to turn over every rock in these cases,” she said. “I remember getting calls from the secretary of defense, Bill Perry, saying: ‘This is unacceptable. You have to do something.’ I imagine the pressure is even greater now.”
Julie Tate contributed to this report.