DOJ's History Of Ignoring The Rules When Getting Phone Records Of Journalists

from the not-the-first-time dept

There was, of course, plenty of talk about the DOJ getting two months of phone records concerning calls involving some reporters. Since the original story came out, reporters have quickly deduced what the government was after: they were trying to figure out who leaked information about the CIA stopping a plane bombing plot, because the "would be bomber" was actually working for the US, and revealing the news apparently ended the work early. The DOJ going batshit insane over a leak to the press is, unfortunately, par for the course for the Obama administration, which has been ridiculously aggressive (to an unprecedented level) in going after anyone who leaks to the press.

And while some are still trying to argue that this is a non-story, what may be more important is pointing out what a complete bullshit response the DOJ gave to this whole thing:
Despite the seizure of the phone records, a Justice Department spokesman said the agency valued freedom of the press and was “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.”
The "right balance"? Well, let's take a look about how "always careful and deliberative" the DOJ is on these kinds of things. Julian Sanchez helpfully points us to the infamous 2010 report from the DOJ's Inspector General detailing how the FBI regularly abused "exigent letters" (pdf) -- better known as National Security Letters or NSLs -- to get phone records. This report got plenty of attention at the time, but if you don't recall all 300 pages of it, there's a discussion about getting info from reporters' call logs starting on page 89 (of the official pagination, which falls on page 102 of the pdf) detailing heavily redacted examples of getting reporters' phone records without getting the proper authorization or approvals. What is striking is the extremely cavalier attitude law enforcement seems to have about this. Here is just one example of the DOJ's "always careful and deliberative process" when "seeking to strike the right balance" in getting access to reporters' phone records. This case was an investigation into a leak that appeared in articles in the NY Times and the Washington Post. The full story is much longer, but here are the key points:
On November 5, [redacted], the case agent sent an e-mail asking another Special Agent in the [redacted] Field Office to inquire, in the other agent's capacity as his squad's liaison to the CAU, whether the on-site communications service providers could obtain telephone toll records of U.S. persons making [redacted] calls [redacted]. The case agent's November 5 e-mail listed 12 [redacted] telephone numbers, 8 of which were identified in the e-mail as belonging to Washington Post reporters [redacted] and Washington Post researcher [redacted] and New York Times reporters [redacted] The email identified a 7-month period -- a few months before and a few months after the published articles -- as the time period of interest for the leak investigation.

[....] However, in absence of any request from the case agent or anyone in the FBI, the CAU SSA issued an exigent letter dated December 17, [redacted], to Company A for telephone records of the reporters and others listed in the case agent's November 5, [redacted], e-mail. We determined that the SSA did this without further discussion with the case agent or the Special Agent who had asked only whether such records could be obtained through on-site providers, not that the records should be obtained.

The CAU SSA's exigent letter sought records on nine telephone numbers, seven of which were identified in the e-mail exchanges described above as belonging to Washington Post and New York Times reporters or their news organizations' bureaus in [redacted].....

The exigent letter did not specify the 7-month interval noted in the case agent's November 5 e-mail, or contain any date restrictions. The exigent letter also stated that the request was made "due to exigent circumstances" and that "subpoenas requesting this information have been submitted to the U.S. Attorney's office who will process and serve them formally on [Company A] as expeditiously as possible." However, this statement was not accurate. A subpoena request had not been sent to the U.S. Attorney's Office at the time the exigent letter was served, or at any time thereafter.
That's the "always careful and deliberative process"? Hmm. Later in the report, they note that even when the agent only had asked about (and never actually sought) 7 months of records, thanks to the NSL, they got months and months of records, nearly none of which was actually in the 7 month period the agent was interested in. All total, they were sent 1,627 telephone call records, and only three calls were from that 7 month period. Oh, and once they got those records, they were uploaded into a database, where they were searchable by other FBI staff and other government personnel as well.

The report notes a few other examples of agents getting access to reporter phone information without the proper authorization as well.

Of course, once this came out the FBI and DOJ insisted that this was no big deal. But, in a coincidence of timing, just before this whole story broke, the FBI was in court, seeking to keep secret the memo that gave the "legal basis" for its past use of NSLs to access phone records. While the DOJ insists that it's not using these processes any more, it still thinks it should keep the legal basis for why it issued those letters a complete secret. They claim, ridiculously, that this would "chill deliberative discussions within the Executive Branch." But people aren't asking for deliberative discussions, just the very specific claimed legal basis for issuing such letters. And, of course, the DOJ would prefer not to say.

Given all of this, is it any wonder that people suspect the DOJ of being up to no good?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Ninja (profile), May 14th, 2013 @ 10:21am

    Might as well create the Ministry for Popular Enlightenment and Propaganda, no? The equivalent for the Gestapo is already up and running it seems.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, May 14th, 2013 @ 10:55am

    I can mostly certainly be wrong here. But I thought that when the phone records of a news organization are "secretly" requested (secret because to let the news organization know the records are being requested is deemed to be detrimental to the investigation) the AG must make the decision.

    In other words....the buck stops at the AG.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, May 14th, 2013 @ 11:00am

    The AP and the rest of the media would have more of a leg to stand on if they had been outraged when other people were spied on the US government in the same way.

    Or if they had paid much attention to the DOJ insisting they can spy on ANY American's phone calls WITHOUT a warrant, despite court rulings to the contrary.

    Now the media looks like a bunch of hypocrites only concerned about privacy violations if it's their own privacy, and I have much less sympathy for them then I would have otherwise.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, May 14th, 2013 @ 11:10am

    'They claim, ridiculously, that this would "chill deliberative discussions within the Executive Branch.'

    Executive privilege? Didn't Obama say this was overused when he was running?

    Also, sorry, but this is no longer a "deliberative discussion". If they had never accessed any phone records but were trying to decide whether they could, then the memo might count as a deliberative discussion. But they ACTUALLY USED the memo to justify their actions. That's not deliberation or discussion anymore. It's policy. We have a right to know what the policy is - or, in this case, was.

    And now that we know of actual reporters who were actually spied upon, the whole "no standing to sue" thing is nicely taken care of. They'll likely have to show their legal justifications in court. I mean, they could attempt to keep them secret, but if they do, they're going to have a hard time winning the case.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    Dirkmaster (profile), May 14th, 2013 @ 11:11am

    Re:

    What difference would THAT make? Name one F-up that Holder has been held accountable for. Obama clearly thinks the man is golden, and not to be touched. A number of senators disagree, and I foresee yet another uncomfortable hearing for Mr Holder.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, May 14th, 2013 @ 11:18am

    Re: Re:

    According to Bloomberg:

    *HOLDER SAID TO RECUSE HIMSELF FROM AP PHONE RECORDS CASE
    *HOLDER SAID TO RECUSE HIMSELF BECAUSE HE WAS QUESTIONED IN CASE

    So, maybe not that uncomfortable.

    By the way, you sound like Hillary (but I'm sure you already knew that).

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    Chris Rhodes (profile), May 14th, 2013 @ 11:23am

    Just a Piece of Paper

    If it's up to the government to determine for themselves what the correct "balance" is between their power and our rights, then why do we even have a constitution?

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, May 14th, 2013 @ 11:42am

    Re:

    And this year's godwin award goes too...

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    ShellMG (profile), May 14th, 2013 @ 11:43am

    Everyone. EVERYONE should be concerned.

     

    reply to this | link to this | view in thread ]

  10.  
    icon
    ShellMG (profile), May 14th, 2013 @ 11:46am

    EVERYONE should be concerned.

    (Mod, can you please delete prior post?)

    The liberal journalism group ProPublica was given IRS applications for conservative-leaning non-profits *before* they'd been approved or denied. ProPublica then USED that information to plant stories in the media on the tax status of individuals, including GOP candidates. This information came from ProPublica themselves in a rather surprising admission. Why did they decide to grant themselves golden boy status? So they can look like the "good guys" even though they used confidential info, given to them by the IRS, to play politics.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, May 14th, 2013 @ 11:51am

    I feel so secure now knowing I am being protected by a government that does an excellent job of stopping its own terrorist plots

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, May 14th, 2013 @ 11:58am

    Re: EVERYONE should be concerned.

    Ahhh, do you have any proof of this?

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, May 14th, 2013 @ 12:06pm

    Re: Just a Piece of Paper

    The ironic part, the Constitution was written to keep the Govt in check.

    Without a tenacious media (clearly overwhelming media support of Obama Admin), we end up with the DOJ & IRS with unprecedented powers to abuse the citizens they want to nullify.

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    ShellMG (profile), May 14th, 2013 @ 12:06pm

    Re: Re: EVERYONE should be concerned.

    Yes. A reliably liberals source, as well.

    http://www.washingtonpost.com/blogs/federal-eye/wp/2013/05/14/irs-released-confidential-inf o-on-conservative-groups-to-propublica/

    "ProPublica on Monday reported that the same IRS division that targeted conservative groups for special scrutiny during the 2012 election cycle provided the investigative-reporting organization with confidential applications for tax-exempt status."

    More articles may be forthcoming unless the media decides to just "let this one slip by..."

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    Get off my cyber-lawn! (profile), May 14th, 2013 @ 12:09pm

    Absolute Power

    Power corrupts. Absolute power... is only for use of DOJ whom promises they won't misuse it but don't ask for any specifics and ignore that man behind the curtain!

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, May 14th, 2013 @ 12:09pm

    Re: Re: Re: EVERYONE should be concerned.

    Excellent! Including of supporting material when quoting the original story is helpful.

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    ShellMG (profile), May 14th, 2013 @ 12:13pm

    Re: Re: Re: Re: EVERYONE should be concerned.

    The disclosures of malfeasance by the Obama Administration are coming so Fast and Furious (God help me for that)I need two screens to keep up.

    This keeps getting screaming-head worse. Despicable doesn't even cover it.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, May 14th, 2013 @ 12:41pm

    Re: Re: Re: Re: Re: EVERYONE should be concerned.

    Clearly, the disclosure of the F & F info would not “adversely affect the functions & decision-making process of the Ex branch”. It would have “embarrassed” the Admin.

    President Obama Falsely Claims Fast and Furious Program “Begun Under the Previous Administration”

    I appears there are enough Americans, who believe in the Constitution, that are standing up to the "Wall of Denial” put up by this Administration and Media.

    The Drudge Report is Blowing UP - too many stories to keep up with: http://www.drudgereport.com/

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, May 14th, 2013 @ 1:23pm

    Re: Re: Re: Re: Re: Re: EVERYONE should be concerned.

    Kevin Williamson wrote a piece that needs further investigation.

    The Question that Launched the IRS Scandal: Planted?
    http://www.nationalreview.com/corner/348280/question-launched-irs-scandal-planted

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, May 14th, 2013 @ 4:50pm

    Re:

    How many "Reporters" where complicit in "covering" for this Administration??

    Ha, ha, ha, ha, ha - complicity gets you Investigated!!

    Puppets, Muppets and Americans...

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This