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Explainer on the AP Subpoenas Controversy

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Thursday, May 16, 2013 at 5:00 PM

It’s been a rough week for the Obama Administration. In addition to outrage over IRS targeting of conservative groups and continued conspiratorial rumblings about the Administration’s response to the Benghazi attack, the Department of Justice (DOJ) faces blowback over subpoenas it issued for Associated Press (AP) reporters’ telephone records. The subpoenas were part of an investigation into potential national-security leaks that underlay media coverage last May of secret CIA counterterrorism operations. This post gives an overview of the investigation, the current scandal, and the relevant law.

The AP subpoena

In May 2012, the AP published an article detailing how the CIA had foiled a plot by Al-Qaeda in the Arabian Peninsula (AQAP), a Yemeni Al-Qaeda offshoot group, to blow up a U.S.-bound airliner. The AP had delayed the story for several days in response to a request by the U.S. government, which cited an ongoing intelligence operation. Satisfied that security concerns had been mitigated, the AP eventually published its account — despite further requests to hold off, and one day before the government’s official announcement of the scheme’s thwarting. At the center of the AP piece was a would-be suicide bomber, whom authorities strangely had not apprehended. “[I]t is not immediately clear what happened to the alleged bomber,” the article observed. The picture quickly grew clearer. The next day, the New York TimesABC, and other outlets reported that the the bomber was in fact a double agent who had infiltrated AQAP, obtained his bomb from Ibrahim Hassan al-Asiri, AQAP’s notorious explosives maker, and then passed the weapon to the FBI. NPR’s Dina Temple-Raston noted that officials had planned to reintroduce the double agent back into AQAP, but that the AP and subsequent stories made that impossible.

The leaks that led to the AP report were denounced at the time, both in and out of government. FBI director Robert Mueller testified before the Senate Judiciary Committee that “[l]eaks such as this threaten ongoing operations, put[] at risk the lives of sources, make[] it much more difficult to recruit sources, and damage[] our relationships with our foreign partners.” (Indeed, one former CIA official predicted that British intelligence services, which had played an important role in the operation, would be upset with their U.S. counterparts over the leaks.) Matthew Olson, director of the National Counterterrorism Center, went further and called the media leaks “devastating.” Sen. Chuck Grassley (R-IA) urged the FBI to “get to the bottom of it . . . [r]egardless of the political consequences.” Ditto Rep. Peter King (R-NY), who said the “FBI has to do a full and complete investigation, because this really is criminal in the literal sense of the word.” Following suit, Sen. Dianne Feinstein (D-CA) called for the leaker to be prosecuted.

The FBI began its investigation of the leak soon after the AP story. Among other things, it subpoenaed two months of phone records of various AP reporters and offices, including the AP’s telephone number at the House press gallery and several reporters and an editor who had contributed to the May story. Although the Justice Department did not notify the AP beforehand, it afterwards sent the AP a letter informing the organization of the subpoenas. The AP received the letter on Friday. (See below for a summary of regulations governing the subpoenas’ issuance.) According to the AP, the DOJ letter did not explain why it had sought the telephone records.

Both the White House and Attorney General Eric Holder have distanced themselves from the subpoenas. White House Press Secretary Jay Carney said in a statement that the White House did not know about the subpoenas. And at a press conference yesterday, Holder explained that, although the applicable regulations require the Attorney General to approve subpoenas issued to media (see below), the subpoenas were authorized by Deputy Attorney General James Cole. Holder had recused himself from the investigation after the FBI interviewed him regarding the leak; thus he did not know the details of the investigation as it proceeded. Nevertheless, Holder defended the DOJ’s actions, calling the leak among “the top two or three most serious” he’d seen in his career.

The fallout

The Administration has drawn sharp criticism over the subpoenas. AP head Gary Pruitt sent a furious letter to the Attorney General, charging that the subpoenas had “no possible justification” and were “a serious interference with AP’s constitutional rights to gather and report the news.” In response, Cole wrote a letter defending the subpoenas as “limited in both time and scope” and “strik[ing] 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.” The AP’s response is here. In addition, the Reporters Committee for Freedom of the Press sent Holder a letter, signed by many major media outlets, protesting the subpoenas. The ACLU lastly blasted them as “press intimidation” and an “unacceptable abuse of power.”

In Congress, Republicans and Democrats also decried perceived abuses. At yesterday’s House Judiciary Committee hearing, Committee Chairman Bob Goodlatte (R-VA) argued that the DOJ’s investigation was “contrary to the law and standard procedure,” and Rep. Zoe Lofgren (D-CA) stated that “the actions of the department have in fact impaired the First Amendment.” Ranking Democrat John Conyers (D-MI) said that he was “deeply troubled by the notion that our government would secretly pursue such a broad array of media phone records over such a long period of time.” However, both Holder and another committee member, Rep. Jerry Nadler (D-NY), pointed out that lawmakers (in particular Republicans) had called for the administration to vigorously investigate the leak the past May, and had criticized the administration for not doing enough to stop leaks. That irony was not lost on Holder, either: “It strikes me as interesting now that in some ways we’re being criticized for being too aggressive. There was certainly a clarion call [in May] from many that the attorney general needed to do more.”

Holder nevertheless recognized the need for the DOJ investigation to itself be investigated. During the hearing, he said, “I do think at the conclusion of this matter, given the attention that it has generated, that some kind of after-action analysis would be appropriate. I will pledge to this committee and the American people that I will engage in such an analysis.” The White House has also asked Sen. Chuck Schumer (D-NY) to reintroduce a “shield law” to protect journalists from being forced to reveal their sources that Schumer had introduced in 2009. That law, the “Free Flow of Information Act,” carved out certain exceptions for national security cases. The bill passed the Senate Judiciary Committee but was stalled by the WikiLeaks scandal and ultimately died.

The applicable law

Justice Department policy for subpoenas of the press is set out in department regulations, codified at 28 C.F.R. § 50.10. Section 50.10 begins with the reason for restrictions on the subpoena power: “Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues.”

The main provisions relevant in this case are:

  1. The government must “strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.”
  2. The government must make “[a]ll reasonable attempts” to get the desired information from other sources and/or negotiate with the media before seeking a subpoena.
  3. The Attorney General must approve all subpoenas to non-consenting media targets.
  4. Subpoenas of telephone records must be “be as narrowly drawn as possible” and “should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.” In addition, “[t]here should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.”
  5. Unless the government has given the target before-the-fact notice of the subpoena, it must notify the target after the fact..
  6. The regulations are “not intended to create or recognize any legally enforceable right in any person.”

Section 50.10 is further discussed in the U.S. Attorneys’ Manual, § 9-13.400. The Manual reiterates and expands on the importance of restrictions on the subpoena power:

In recognition of the importance of freedom of the press to a free and democratic society, it is the Department’s policy that the prosecutorial power of the Government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues. Accordingly, Government attorneys should ordinarily refrain from imposing upon members of the news media forms of compulsory process which might impair the news gathering function. In all cases, members of the Department must balance the public’s interest in the free dissemination of ideas and information with the public’s interest in effective law enforcement and the fair administration of justice.

In a 1999 law-review article, Adam Liptak, then a senior counsel to the New York Times and now its Supreme Court reporter, gave an overview of § 50.10. It was developed between 1970 and 1973, in response to the increasing number of subpoenas being issued by the Department of Justice at the time. Since then, as Liptak notes, it’s remained unclear whether the courts can enforce the regulations. In In re Shain, 978 F.2d 850 (4th Cir. 1992), the Fourth Circuit refused to enforce § 50.10 against the Department of Justice. The case was about four reporters who who were held in contempt for refusing to testify in the bribery trial of state legislators. The Department of Justice sought subpoenas for their testimony, and one of the reporters’ asserted defenses was that the subpoenas had been issued in violation of § 50.10’s requirements. The court rejected this argument, concluding that § 50.10 was “a departmental policy with a purely internal enforcement mechanism” and “expressly disclaim[ed] any intent ‘to create or recognize any legally enforceable right in any person.'” Yet in other cases — like In re Williams, 766 F. Supp. 358 (W.D. Pa. 1991) and United States v. Blanton, 534 F. Supp. 295 (S.D. Fla. 1982) — courts have quashed subpoenas on the grounds that the the DOJ did not follow § 50.10.

*     *     *

For those who think that the DOJ’s actions were inappropriate, explanations differ. Slate‘s Emily Bazelon believes the episode reflects the Obama Administration’s “war on journalism.” By contrast, Politico‘s Josh Gerstein argues that the Obama White House has taken the lessons of the Bush Administration too much to heart, and has adopted an overly hands-off approach to DOJ investigations. Whatever the explanation, there is little doubt that the AP controversy is a serious one — at least for the moment. As Politico notes, it’s never a good idea to turn “all three D.C. stakeholders” — the press, Republicans, and Democrats — against you simultaneously, especially when other scandals are brewing and might impact future elections.

Although the political costs of the subpoenas are clear, the appropriate response is far from. Consider Liptak’s positive verdict on § 50.10:

The Justice Department guidelines have served as a shadow federal shield law for three decades. They are sensible, rigorous, and predictable. Courts have routinely embraced them, even in situations where they are arguably inapplicable or unenforceable. The Supreme Court has stated that the guidelines render a shield law rooted in the Constitution superfluous in the cases in which it is available. All of the foregoing considerations suggest that the Justice Department should be commended for bearing the self-imposed burdens presented by the regulations, that courts should continue to enforce them liberally, and that Congress might consider them a model for a true federal shield law statute.

Thus, even if § 50.10’s requirements are tightened further, or (as seems possible for now) a press-shield law is enacted, it remains hard to say whether the government’s approach to media subpoenas will change over time. Whether or not the DOJ overreached in this case, the need to balance freedom of the press against national security is a real one. And given that § 50.10 appears to have served this balance well for over four decades, there may not be obvious improvements to be had. But we shall see.

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