Internal Report Says DOJ Did Nothing Wrong Targeting Journalists' Communications To Hunt Down Leakers

from the first-step-is-forgiving-yourself-I-guess dept

The DOJ's current prosecution of Julian Assange threatens the profession of journalism. By turning cultivating sources and publishing classified documents into acts of treason, the DOJ is undermining protections supposedly guaranteed by the First Amendment and shored up by years of case law.

But the DOJ has been undermining these protections for years. Six years ago, news surfaced that the DOJ had issued 30 subpoenas for AP journalists' phone records. The fallout from this continues, which includes the DOJ modifying (very slightly) its rules for obtaining journalists' communication records.

When it comes to leak investigations, all bets -- and all Constitutional protections -- are off, apparently. The rules have exceptions and justifications to allow the DOJ to do what it wants to do anyway: spy on journalists until it can find the leak source. A new Office of Professional Responsibility report obtained by the Freedom of the Press Foundation FOIA request shows the DOJ convincing itself that threatening press freedoms is a responsible use of its powers.

The report is... important for what it tells us about the Justice Department’s Media Guidelines. Specifically, the report shows how weak the guidelines are, and how, in practice, the rules may offer little protection to journalists worried about being caught up in a criminal investigation. Although the guidelines have been revised since the AP subpoenas controversy, several of its standards remain intact. Among these is the requirement that proposed subpoenas be “narrowly drawn.”

While substantial portions of the Office of Professional Responsibility’s analysis are redacted, its finding that the AP subpoenas were “as narrowly drawn as possible” appears to have hinged on the perceived seriousness of the leak; the decision not to subpoena the telephone records for employees at the Post, the Times, and ABC News; the inability of investigators to determine to which AP reporter or editor the leaker had provided classified information; and “perhaps most importantly” the fact “the subpoenas requested the records for—and not the contents of—telephonic communications.”

The report [PDF] shows more than that, though. It shows the DOJ also thought about subpoenaing records from several other news agencies, including the Washington Post and New York Times. It shows the DOJ believed its failure to locate the source of the leak using other means and methods justified targeting phone lines used by journalists. And its subpoenas didn't cover individual desks. The 30 subpoenas targeted multiple AP offices, starting with their trunk lines. Although the DOJ was only seeking info about communications with seven journalists, it decided the most efficient way to do this was to scrape phone records from the trunk, capturing every call made to and from these offices for over a month.

Ultimately, the report finds the DOJ did nothing wrong. It acknowledges the First Amendment concerns but says any collateral damage was necessary to find the source of the leak. And it will continue to do this if it feels the collateral damage to free speech protections is worth it. That appears to be almost any case where the DOJ's internal investigation of leaks reaches a dead end. Rather than redouble its internal efforts, it will target journalists' communication records.

This was always concerning. President Obama waged a war on whistleblowers, making it far more likely journalists -- those often on the receiving end of whistleblowing -- would be targeted by the federal government. This war hasn't ended. It has only intensified. President Trump's DOJ is fighting it own war on leaks, and that effort is coupled with Trump's open disdain for several news organizations. The DOJ has already justified its past abuses. It won't find it too hard to sleep at night going forward.

Filed Under: 1st amendment, 4th amendment, communications, doj, foia, journalists, phone records, subpoenas, warrants
Companies: associated press


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  • identicon
    Anonymous Coward, 31 May 2019 @ 9:42am

    Time to sue the DOJ

    Under the current and past administration, little things like constitutional protections have been ignored when it was convenient. Let us get the entire thing revoked and replaced with one that actually abides by the papers making this country a thing.

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

    • identicon
      Anonymous Coward, 1 Jun 2019 @ 7:01am

      Re: Time to sue the DOJ

      Under the current and past administration, little things like constitutional protections have been ignored when it was convenient.

      With the blessing of the government's own courts.

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

  • identicon
    Anonymous Coward, 31 May 2019 @ 10:22am

    Tim wrote:

    President Obama waged a war on whistleblowers, making it far more likely journalists -- those often on the receiving end of whistleblowing -- would be targeted by the federal government. This war hasn't ended. It has only intensified.

    Everything I've seen comparing Cbama's War Against Journalists and his unprecedented use of the 1917 Espionage Act to prosecute journalists has indicated that Obama was a far worse tyrant when it came to press freedom and transparency compared to Trump.

    Has this changed, and is Trump now as bad, or worse, than Obama?

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

    • identicon
      Anonymous Coward, 31 May 2019 @ 10:39am

      Re:

      "Has this changed, and is Trump now as bad, or worse, than Obama?"

      What difference does it make?

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

    • icon
      That One Guy (profile), 31 May 2019 @ 5:01pm

      Re:

      his unprecedented use of the 1917 Espionage Act

      Funny you should mention that one in particular, given it's only been a few days since there was an article talking about how it wasn't used against a particular individual during Obama's presidency, but is being used in Trump's.

      On a more general range though, for all that Obama may have had a hate-on for leakers one thing I don't seem to recall him doing is regularly and vocally attacking the press in an attempt to undermine any parts of it that wasn't kissing his feet and praising him at every opportunity, something Trump can't seem to go a day without doing with his constant calls of 'Fake news'.

      On those grounds I'd say Trump is far, far worse regarding any 'war against journalists', as while Obama may have gone after individuals(with resulting chilling effects to be sure), Trump is continuing the practice and attempting to undermine the field of journalism as a whole.

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

  • identicon
    Anonymous Coward, 31 May 2019 @ 10:43am

    If you see something, say something.
    Unless that something is about politicians, political and or corporate corruption, war crimes, police brutality, the promotion of white supremacy.

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

  • icon
    Uriel-238 (profile), 31 May 2019 @ 11:34am

    We saw this coming.

    This is exactly the sort of dissolution of our Bill-of-Rights protections (encroachment of our rights) that was warned of by our constitutional framers. Jefferson suggested that revolution from time to time -- violent revolution as necessary (Blood of patriots and tyrants) -- would be necessary to preserve those rights. Granted, violent revolution is messy and we want to avoid it, but without a movement for substantial reform, the alternatives get fewer and less likely by the day.

    The DoJ and law enforcement now enforces their will not by consent but through physical power and fear, and as such they grow more and more free to do whatever they want. They seize what they please and kill who they want without regard for the human lives trodden under their tactical boots (Jackboots are out of style). This includes silencing the press who would speak ill of them or reveal their indulgences.

    Just as we ignore when Black lives failed to matter, the perimeter continues to close, and more and more lives fall into the Black zone every day.

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

    • identicon
      AnonyOps, 31 May 2019 @ 12:04pm

      Re: We saw this coming.

      Of the rich, by the rich and for the rich. Is now the primary consent of the governed, of which those laws have nary any application. The United States of America has become a banana republic of the oligarchs. It will only keep degenerating until it has obtained the ability to rape and murder your loved ones in front of you in public.

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

    • identicon
      R,og S/, 2 Jun 2019 @ 12:16pm

      Re: We saw this coming.

      Its interesting how so many dangle the black card, are remarkably silent about the black activists- ALL males-who died in mystery suicides; or the black men who become mass shooters after being gang stalked by DHS/CVE/DVIC K4 groups in community policing.

      The latest shooter, DeWayne Craddocck , while not an activist, certainly fits a patttern with K4 targeting, and media narrrative control.

      Interesting how the hate industry cleverly divides along those color lines when its sectarian or convenient, but craps all over their yoga pants along party lines on that issue.

      Because for those of us who DIDNT adopt the hate industry narrrativve control guidelines that you espouse certainly put our Doc Martens, and our typewriters where these things happened, and paid a heavy price for it.

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

  • identicon
    David, 31 May 2019 @ 3:28pm

    The Constitution: not just a good idea, but the law

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

  • identicon
    Pixelation, 31 May 2019 @ 3:29pm

    Internal investigation

    Nothing like the good old internal investigation. Nothing to see here, move along. These aren't the abuses you're looking for.

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

    • icon
      That One Guy (profile), 31 May 2019 @ 4:51pm

      Re: Internal investigation

      Internal investigations: For when you have no intention of finding any guilt in anyone with any real power/authority(scapegoats are another matter...), and are only going through the motions to avoid someone else stepping in and actually performing a real investigation.

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

  • identicon
    Anonymous Coward, 1 Jun 2019 @ 6:55am

    Recordings

    “the subpoenas requested the records for—and not the contents of—telephonic communications.”

    That's only because phone companies don't usually keep recordings of phone calls. If they did you can bet the DOJ would have gone after those too. So patting themselves on the back for having not done so is kind of like patting themselves on the back for not demanding unicorns.

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

    • icon
      That One Guy (profile), 2 Jun 2019 @ 1:39am

      No, they do that too. They do that a LOT

      So patting themselves on the back for having not done so is kind of like patting themselves on the back for not demanding unicorns.

      ... Or as they're often called here on TD 'backdoors to encryption that does not impact it's security or introduce huge vulnerabilities just waiting to be found'.

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

  • identicon
    Digitari, 1 Jun 2019 @ 9:29am

    Welcome to the Machine

    Congratulations, you are all "conspracy theroist's, and now see the "Deep State".

    (the deep state is not a person or persons, it's a government mindset, ideology)

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


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