“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.”“We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.”
The AP’s story on the matter doesn’t state what, precisely, the Justice Department was seeking in the operation. However, it does note that the department’s prosecutor in Washington” is conducting a criminal investigation into who may have leaked information contained in a May 7, 2012, AP story about a foiled terror plot. The story disclosed details of a CIA operation in Yemen that stopped an al Qaeda plot in the spring of 2012 to detonate a bomb on an airplane bound for the United States.” Six AP staffers who worked on that story were “among the journalists whose April-May 2012 phone records were seized by the government,” notes the AP story by Mark Sherman.
Furthermore, news organizations “normally” get advance notice of such probes by the government. That didn’t happen here. As the AP story states, the government “cited an exemption…that holds that prior notification can be waived if such notice, in the exemption’s wording, might ‘pose a substantial threat to the integrity of the investigation.'”
In an interview with the Erik Wemple Blog, David Schulz, an attorney with Levine Sullivan Koch & Schulz who is representing the AP, said of the government’s action: “It’s outrageous…This action is a dagger to the heart of AP’s newsgathering activity. Sources are not likely to talk to reporters who they know are being used as investigative tools by prosecutors,” says Schulz. “And that’s what’s happening here.”
Like the AP, Schulz knows a limited amount about the Justice Department’s actions in this case. He got the notice from the Justice Department last Friday. Another lawyer at his firm attempted to reach out to an assistant U.S. attorney to get more details on the matter, but the prosecutor wouldn’t go beyond the information in the Justice Department’s letter to the AP.
Federal regulations restrict the government’s ability to corral the phone records of news organizations. The curbs, says Schulz, stem from the Watergate era and include a number of valuable protections for reporting enterprises, such as: the feds are required to try “alternative sources before considering issuing a subpoena to a member of the news media”; also: “Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated.”; the sign-off of the attorney general is required.
However, the rules also allow this loophole:
Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought.
After if found that its phone records were in the hands of the federal government, the AP responded that it wanted them “returned and destroyed,” says Schulz, or, at a minimum, “segregated and not allowed [to be used] for any purpose.”
Those are fine and reasonable requests, but they may go nowhere. So AP & Co. is appealing to the public. “We’re assessing what our options are and one option is to try to let people know what happened and try to get the word out,” says Schulz. “This should be disturbing to everyone.”