Costs of Spying on the AP That the Establishment Ignores

A press that's able to ferret out government secrets is more important than a government that can keep secrets.

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Three former Justice Department officials have published a New York Times op-ed that takes the government's side in the controversy surrounding its snooping into Associated Press phone records. It adeptly lays out the establishment position. I hope to juxtapose a very different perspective.

Says the op-ed:

FOLLOWING the disclosure that the Justice Department obtained the telephone records of Associated Press journalists, The A.P. and other news organizations have sharply criticized the action as investigative overreaching and unwarranted interference with the ability of journalists to report on government operations.

So far, so good.

As former Justice Department officials who served in the three administrations preceding President Obama's, we are worried that the criticism of the decision to subpoena telephone toll records of A.P. journalists in an important leak investigation sends the wrong message to the government officials who are responsible for our national security.

As a journalist and an American citizen, I worry that prying into reporters' private communications sends the wrong message to government officials who have knowledge of wrongdoing or government actions illegitimately kept secret, but are hesitant to fulfill their civic duty and get word to their fellow citizens, fearing that there's no way to do so without being punished. Officials responsible for national security should be sent the message that the country they're protecting is weakened less by terrorism than by a press that can't fulfill its oversight function. In the long run, robust national security journalism keeps us safe by checking folly, incompetence, and tyrannical impulses, all of which presidents have been known to indulge.

While neither we nor the critics know the circumstances behind the prosecutors' decision to issue this subpoena, we do know from the government's public disclosures that the prosecutors were right to investigate this leak vigorously. The leak -- which resulted in a May 2012 article by The A.P. about the disruption of a Yemen-based terrorist plot to bomb an airliner -- significantly damaged our national security. The United States and its allies were trying to locate a master bomb builder affiliated with Al Qaeda in the Arabian Peninsula, a group that was extremely difficult to penetrate. After considerable effort and danger, an agent was inserted inside the group. Although that agent succeeded in foiling one serious bombing plot against the United States, he was rendered ineffective once his existence was disclosed.

At this stage, it is impossible to know the circumstances behind the prosecutor's decision to issue this subpoena (though he could tell us!). And it's impossible to know how significantly the leak damaged national security, if at all. Would the agent have been able to stay undercover but for the leak? Would he have accomplished anything of importance undercover? Will Al Qaeda in the Arabian Peninsula succeed in an attack that would've been thwarted but for the leak? It is certainly possible that damage was done. But the government hasn't released enough information to prove "significant damage" or even the probability of significant damage. We aren't being told all the details even though the undercover agent's cover has already been irrecoverably blown. Why? Perhaps the whole truth weakens the government's case.

(It isn't like the Obama Administration hasn't misled us before.)

Meanwhile, it is impossible to know how much damage the leak investigation has done. Are there government sources with knowledge of corruption or serious wrongdoing who've decided against speaking out, now that they see DOJ going after the phone records of reporters? What stories that advance the public interest will the Associated Press be unable to break as a consequence of this action? What important reforms won't be made? What issues won't be subject to democratic accountability? What illegal or immoral actions will officials get away with under cover of secrecy, especially given their well documented penchant for over-classifying information?

The leak of such sensitive source information not only denies us an invaluable insight into our adversaries' plans and operations. It is also devastating to our overall ability to thwart terrorist threats, because it discourages our allies from working and sharing intelligence with us and deters would-be sources from providing intelligence about our adversaries. Unless we can demonstrate the willingness and ability to stop this kind of leak, those critical intelligence resources may be lost to us.

We don't yet know whether the leak investigation will devastate American journalism's overall ability to uncover scandals and preempt widespread corruption at the highest levels of government. Until we can demonstrate that spying on journalists is off limits, critical whistle-blowing will be lost.

At the time the article was published, there were strong bipartisan calls for the Justice Department to find the leaker. Attorney General Eric H. Holder Jr. gave that assignment to Ronald C. Machen Jr., the United States attorney for the District of Columbia, who is known for his meticulous and dedicated work. Importantly, his assignment was to identify and prosecute the government official who leaked the sensitive information; it was not to conduct an inquiry into the news organization that published it. His office, which has an experienced national security team, undertook a methodical and measured investigation. Did prosecutors immediately seek the reporters' toll records? No. Did they subpoena the reporters to testify or compel them to turn over their notes? No. Rather, according to the Justice Department's May 14 letter to The A.P., they first interviewed 550 people, presumably those who knew or might have known about the agent, and scoured the documentary record. But after eight months of intensive effort, it appears that they still could not identify the leaker.

To catch this single leaker, the Obama Administration has appointed a U.S. attorney to work on the case full time and distracted 550 government employees from their jobs to interview them. These 8 months of effort produced nothing of value save the aforementioned chilling effect. It is possible, but far from clear, that this is a prudent, efficient use of national security resources.

It was only then -- after pursuing "all reasonable alternative investigative steps," as required by the department's regulations -- that investigators proposed obtaining telephone toll records (logs of calls made and received) for about 20 phone lines that the leaker might have used in conversations with A.P. journalists. They limited the request to the two months when the leak most likely occurred, and did not propose more intrusive investigative steps. The decision was made at the highest levels of the Justice Department, under longstanding regulations that are well within the boundaries of the Constitution. Having participated in similar decisions, we know that they are made after careful deliberation, because the government does not lightly seek information about a reporter's work. Along with the obligation to investigate and prosecute government employees who violate their duty to protect operational secrets, Justice Department officials recognize the need to minimize any intrusion into the operations of the free press.

Rather than conclude that proceeding any farther with the failed investigation would do more harm than good, officials at the highest levels of the Justice Department -- the same people who've been waging an unprecedented war on whistleblowers and leaking themselves when it suits their purposes -- decided to press ahead. In doing so, they violated internal guidelines meant to minimize the intrusiveness of their actions. "The Justice Department is supposed to follow special rules when it seeks the phone records of reporters, in recognition that such snooping conflicts with First Amendment values," Julian Sanchez writes. "Federal regulations require that the attorney general personally approve such a move, ensure the request is narrow and necessary, and notify the news organization about the request--in advance whenever possible. In this case, however, the Justice Department seems to have used an indiscriminate vacuum-cleaner approach--seeking information (from phone companies) about a wide range of phone numbers used by AP reporters--and it only notified AP after the fact." This effectively deprived the Associated Press of the ability to challenge the order with a federal judge as neutral arbiter.

While we cannot know all of the facts and considerations that went into the department's decision, we do know that prosecutors were right to try to find out who gave this damaging information to The A.P. They were right to pursue the investigation with "alternative investigative steps" for eight months first. And ultimately, they were right to take it to the next stage when they still needed more to make a case against the leaker. If the Justice Department had not done so, it would have defaulted on its obligation to protect the American people.

Until we know all of the facts and considerations that went into the department's decision, there is no reason to defer to Team Obama's insistence that seeking the AP phone records did more good than harm. As James Fallows points out, there is a history of leaks doing less damage to national security than the government initially claims, and a presidential tendency to overreact to national security leaks in particular as POTUS loses sight of the harm pursuing them does to the free press.