Holder and the White House Try to Make the Case for Media Surveillance

Attorney General Eric Holder and White House Press Secretary Jay Carney tried, in near-simultaneous press conferences Tuesday afternoon, to justify the government's unusual access of data from the Associated Press. In different ways stemming from different agendas, they both failed.

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Attorney General Eric Holder and White House Press Secretary Jay Carney tried, in near-simultaneous press conferences Tuesday afternoon, to justify the government's unusual access of data from the Associated Press. In different ways stemming from different agendas, they both failed.

The Justice Department's subpoenaing of phone records from the Associated Press prompted a predictable reaction when the White House press corps was given the chance to ask questions at the White House about the most press-centric story of Scandal Week. The Huffington Post called it an "unrelenting grilling," in which Carney refused to comment. Sort of. Noting that it was up to Attorney General Eric Holder to respond, Carney tried to sketch out President Obama's position on the matter, while distancing the White House from the DoJ.

On the issue of what is a Department of Justice investigation, as I understand it, the president is a strong defender of the First Amendment and a firm believer in the need for the press to be unfettered in its ability to conduct investigative reporting and facilitate the free flow of information. He also, of course, recognizes the need for the Justice Department to investigate alleged criminal activity without undo influence.

The brief excursion through the First Amendment was not a huge success. Within minutes both "#unfettered" and "Jay Carney" were trending on Twitter. Usually paired with a reaction akin to the one below.

The distinction between the free press and government restriction is probably best demonstrated in the statute under which the government is allowed to supoena the press, as pointed out to us by Electronic Frontier Foundation senior staff attorney Kurt Opsahl yesterday. It reads, in part:

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. This policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function.

What follows are 14 conditions that need to be met before the government can get a subpoena, which itself should be "as narrowly drawn as possible." The message is clear: If the Department of Justice feels that it is necessary to infringe on the liberty of the freedom of the press, even retroactively, it better be an extraordinary situation approached with extraordinary care.

A few minutes after Carney spoke, the press got to ask questions of Holder in an overcrowded briefing at the Justice Department that was ostensibly about Medicare fraud. After noting that he'd recused himself from the AP investigation, the attorney general quickly tried to make the case that the investigation — which apparently focused on a May 2012 leak to the agency about a bomb plot in Yemen — was the exactly the sort of extraordinary situation that demanded Justice's efforts. Talking Points Memo transcribed his reponse.

This was a very serious leak and a very, very serious leak. I've been a prosecutor since 1976 and I have to say that this is among, if not the most serious, it is within the top two or three most serious leaks I've ever seen. It put the American people at risk. That's not hyperbole. It put the American people at risk.

That's a subjective assessment, of course, and one that bodes poorly if the leaker is ever identified. Holder's Department of Justice has prosecuted six leakers previously, more than under any administration since World War I. And at least four of those accused, by Holder's assessment, must have been involved in less important leaks than the AP's.

If the case in Yemen is the one that prompted the leak investigation (and it appears nearly certain that it is), the AP revelations appear to have undermined an intelligence operation in that country. The story involved Al Qaeda giving a bomb to a terrorist who was, in fact, a CIA double agent. The risk to the American people that Holder cites presumably derives largely from that agent being compromised.

Holder also revealed that Deputy Attorney General James Cole had responded to the Associated Press's angry letter sent to Justice yesterday. Cole's letter attempts to explain how their efforts met the 14 stipulations mandated in the statute while still remaining aloof about content. The subpoena was narrowly drawn, it argues, because the records only cover a subset of the two-month period it originally mentioned. That's an argument, but not a very good one.

While it may be in Carney's job description, it's not the Department of Justice's duty to make the press happy. It is, however, to ensure that any point at which the government must get in their way is done as quickly and openly as possible. It's fair to assume that neither Holder's warnings about the severity of the leak or his deputy's gray-lined explanation of why their efforts were done correctly will assuage concerns about an agency that's eager to uncover leaks, rigid about prosecuting them, and very gauzy about how that job gets done.

Update, 5:50 p.m.: AP President Gary Pruitt has issued a response to Cole's letter — and he's not satisfied.

We appreciate the DOJ’s prompt response, but it does not adequately address our concerns. The letter simply restates the law and claims that officials have complied with it. There are three significant concerns:

The scope of the subpoena was overbroad under the law, given that it involved seizing records from a broad range of telephones across AP’s newsgathering operation. More than 100 journalists work in the locations served by those telephones. How can we consider this inquiry to be narrowly drawn?

Rather than talk to us in advance, they seized these phone records in secret, saying that notifying us would compromise their investigation. They offer no explanation of this, however.

Instead they captured the telephone numbers between scores of AP journalists and the many people they talk to in the normal business of gathering news. How would narrowing the scope of the phone records have compromised their investigation?

In their response today, the DOJ says the seized records cover only a portion of April and May of 2012. However, in their original notification to us on May 10, they say they have “received toll records from April and May 2012,” and then list 20 different numbers for AP offices and staff.

Finally, they say this secrecy is important for national security. It is always difficult to respond to that, particularly since they still haven’t told us specifically what they are investigating.

We believe it is related to AP’s May 2012 reporting that the U.S. government had foiled a plot to put a bomb on an airliner to the United States. We held that story until the government assured us that the national security concerns had passed. Indeed, the White House was preparing to publicly announce that the bomb plot had been foiled.

The White House had said there was no credible threat to the American people in May of 2012. The AP story suggested otherwise, and we felt that was important information and the public deserved to know it.

This article is from the archive of our partner The Wire.