Justice Department Supoenas 2 Months of AP's phone records in leak investigation, notifies AP of Subpoena after records are seized

[Ser Scot A Ellison]

Here's a link to a PBS Story on this topic:

http://www.pbs.org/newshour/bb/law/jan-june13/doj1_05-14.html

From the article:

JUDY WOODRUFF: We turn to the other story the Obama administration is being criticized for, the collection of journalists' phone records in the name of tracking down classified leaks.

The Associated Press says it was notified Friday that the Justice Department secretly subpoenaed records for more than 20 of its phone lines. The AP's Kathleen Carroll says they listed outgoing calls from April and May of 2012.

KATHLEEN CARROLL, Associated Press: They haven't told us what they're looking for, and nor have they explained why we got no prior notice, which our lawyers tell us is not only customary, but required.

JUDY WOODRUFF: AP's president and CEO, Gary Pruitt, sent a letter of protest to Attorney General Eric Holder. In it, he wrote: "There can be no possible justification for such an overbroad collection of the telephone communications.”

He said it amounts to -- quote -- "a serious interference with AP's constitutional right to gather and report the news."

Pruitt demanded that DOJ return the records and destroy any copies. But this afternoon, Attorney General Holder said he had recused himself at the start of the probe. Instead, he said Deputy Attorney General James Cole authorized the subpoena for the AP records.

Okay, yesterday Lev said these information seizures were based upon a search warrant. That doesn't appear to be the case. The information was "Subpoenaed" from the AP. A subpoena, in State Court, can issue from any officer of the court (attorneys included) authorized to issue them. They are not normally reviewed by the court prior to their issuance.

Does anyone know if there is judicial review of Justice Department subpoena's resulting from internal investigations? If not then this is not a situation where a warrant issued upon a showing of probable cause to a neutral judicial arbiter and is more troubling than I thought, even if "legal".

[Fragile Bird]

Can you explain to me, Ser Scot, what the role of the Grand Jury was then? From the news reports I heard, I understood the subpoena requests arose out of hearings before a Grand Jury. I'm not sure how that process works.

[Ser Scot A Ellison]

FB,

The report I just read was dated May 14, 2013. It makes no mention of a Grand Jury. This appears from the report to be an internal Justice Dept. investigation.

[Ser Scot A Ellison]

Here's the May 13, 2013 AP story on the seizure:

http://bigstory.ap.org/article/govt-obtains-wide-ap-phone-records-probe

From the article:

The American Civil Liberties Union said the use of subpoenas for a broad swath of records has a chilling effect both on journalists and whistleblowers who want to reveal government wrongdoing. "The attorney general must explain the Justice Department's actions to the public so that we can make sure this kind of press intimidation does not happen again," said Laura Murphy, the director of ACLU's Washington legislative office.

Rules published by the Justice Department require that subpoenas of records of news organizations must be personally approved by the attorney general, but it was not known if that happened in this case. The letter notifying AP that its phone records had been obtained through subpoenas was sent Friday by Ronald Machen, the U.S. attorney in Washington.

William Miller, a spokesman for Machen, said Monday that in general the U.S. attorney follows "all applicable laws, federal regulations and Department of Justice policies when issuing subpoenas for phone records of media organizations." But he would not address questions about the specifics of the AP records. "We do not comment on ongoing criminal investigations," Miller said in an email.

The Justice Department lays out strict rules for efforts to get phone records from news organizations. A subpoena can be considered only after "all reasonable attempts" have been made to get the same information from other sources, the rules say. It was unclear what other steps, in total, the Justice Department might have taken to get information in the case.

A subpoena to the media must 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," according to the rules.

The reason for these constraints, the department says, is to avoid actions that "might impair the news gathering function" because the government recognizes that "freedom of the press can be no broader than the freedom of reporters to investigate and report the news."

News organizations normally are notified in advance that the government wants phone records and then they enter into negotiations over the desired information. In this case, however, the government, in its letter to the AP, cited an exemption to those rules that holds that prior notification can be waived if such notice, in the exemption's wording, might "pose a substantial threat to the integrity of the investigation."

It is unknown whether a judge or a grand jury signed off on the subpoenas.[emphasis added]

The fact that the subject of the Subpoena hasn't been made aware of whether or not the subpoena was subject to judicial review is problematic.

[Fragile Bird]

Last night on CNBC, the Kudlow Report, I'm sure a guest was saying this had gone before a Grand Jury. I'll go search for the report. ETA: From The Kudlow Report.

so the decision to actually subpoena these records came from the u.s. attorney and the district of columbia ronald machen, with approval from the deputy attorney general, james cole. now, they -- cole, in a letter that was released by the justice department today, this afternoon, vigorously defended this, said it was only taken after exhaustive steps as a sort of last resort, that 550 people were interviewed, tens of thousands of documents were reviewed. and then they secretly issued this grand jury subpoena for a.p. records. michael, why didn't they bother to talk to the a.p.?

michael isikoff of nbc news. here's the question, right now should attorney general holder resign? we'll bring back katie burke. first of all, before he resigns, is this legal? what they're doing? is this legal? yeah, no -- why is it legal? because a grand jury investigation, a grand jury has broad investigative powers. it's -- you know, a lot of reliance is placed upon the good faith of the investigating authority. here they, you know -- the attorney general was recused, because he was evidently asked in the leaking probe, as well as the cia had. and the u.s. attorney in d.c., who is responsible for this grand jury, and the grand jury -- we have to start somewhere. is this legal? yes, it is. you can have -- secret subpoenas. well, grand juries -- processes are generally secret. you don't advertise them. what is surprising is two things, as touched upon the breadth of the subpoena. because you -- it's surprising that this information that could have been leaked apparently was -- could have been had by so many people that they're interviewing 515 people, and it's shocking that a cia operation is known to that many people

[Ser Scot A Ellison]

FB,

Why doesn't AP, the organization served with the subpoena notifying it not to turn over records... but that its phone records had been seized, know whether or not the subpoena was subject to judicial review?

[Fragile Bird]

Hey, it's your justice system, Ser Scot, you tell me. :) The secret Grand Jury has a long history in the US, doesn't it? It seems to indicate that this leak is viewed extremely seriously, doesn't it?

[Ser Scot A Ellison]

FB,

I've never dealt with this. I'm really floored that they didn't notify AP in advance and ask for the information before they seized it. This may be "legal" but it is really untoward given the express Constitutional protection offered to the press in the 1st amendment.

[Fragile Bird]

Well, if you read the transcript of the video, that's the big issue, isn't it? I have heard a number of commentators suggest that the reason the request wasn't made first was because of a fear evidence would be destroyed or that the leak would be tipped off.

[Ser Scot A Ellison]

FB,

This action is really troubling. How would the press have reacted to such an action by the Nixon Administration in their search for "Deep Throat"?

[Inigima]

We've been discussing this in the US Politics thread, Scot.

To me, and several others, this is pretty scary. I am a bit surprised that the general reaction on the board has been so muted, though.

[Ser Scot A Ellison]

I think the topic deserves its own thread.

[Ser Scot A Ellison]

Is no one else bothered that they took the information and then issued the subpoena? The whole poinnof a subpoena notice is to give the subject of the subpoena time to object and contest it. Here, the AP's records were taken without that opportunity being offered for objection.

[Fragile Bird]

Sorry, Ser Scot, I must have missed something. Where does it say that they took first and then got the subpoena? ETA - your OP says the records were taken and then AP was told, not that the records were taken, then a subpoena was obtained.

[Tormund Ukrainesbane]

Is no one else bothered that they took the information and then issued the subpoena? The whole poinnof a subpoena notice is to give the subject of the subpoena time to object and contest it. Here, the AP's records were taken without that opportunity being offered for objection.

I'm pretty fuckin' bothered but we're long past the point where government power can be reigned in. Heck, the AP has been so firmly in the pocket of the establishment for so long I almost want to say it serves them right. They got bit by the monster they've helped create.

I guarantee that there will be no real consequences for this and it will begin happening more frequently in the future.

[Fez]

In no doubt related news as an attempt to damp on any furor, the White House has apparently asked Schumer to reintroduce his 2009 media shield law. It passed the Senate Judiciary Committee 15-4, but never got a full vote because that's right when WikiLeaks first made the news and that whole debate started.

In a statement, Mr. Schumer referred to the A.P. subpoena: “This kind of law would balance national security needs against the public’s right to the free flow of information. At minimum, our bill would have ensured a fairer, more deliberate process in this case.”

It is not clear whether such a law would have changed the outcome of the subpoena to The A.P. But it might have reduced the chances that the Justice Department would have demanded the records in secret, without any advance notice to the news organization, and it may have allowed a judge to review whether the scope of the request was justified by the facts.

[Ser Scot A Ellison]

FB,

If the subject of the subpoena doesn't get the subpoena until after the information is taken how can they contest the acquistion of the information in the first place?

[Fragile Bird]

Then you want to do away with the concept of secret Grand Juries?

[KSims1868]

I'm pretty fuckin' bothered but we're long past the point where government power can be reigned in. Heck, the AP has been so firmly in the pocket of the establishment for so long I almost want to say it serves them right. They got bit by the monster they've helped create.

I guarantee that there will be no real consequences for this and it will begin happening more frequently in the future.

Exactly. I feel and think the exact same way. Gov't has gotten WAY out of control.

[Ser Scot A Ellison]

FB,

Yes. The party against whom the subpoena is served should have notice in advance of the informations seizure that it is going to be seized. Particularly, when the information is being seized from a protected classification like a Press organiszation.