Holder: Searching Reporter Phone Calls Is So Routine I Can't Remember How Many Times It Has Happened
So what he’s saying is the recently-divulged search of phone calls placed by AP reporters wasn’t the only instance. In fact, what he seems to be saying is that this sort of thing is so routine he can’t remember how many times it has happened.
As his Justice Department faces bipartisan outrage for searching phone records of Associated Press reporters and editors, Attorney Gen. Eric Holder says he is not sure how many times such information has been seized by government investigators in the four years he’s led Justice.
During an interview with NPR’s Carrie Johnson on Tuesday, Holder was asked how often his department has obtained such records of journalists’ work.
“I’m not sure how many of those cases … I have actually signed off on,” Holder said. “I take them very seriously. I know that I have refused to sign a few [and] pushed a few back for modifications.”
He takes them seriously, sure, but these requests apparently happen a lot. And just to illustrate how serious an admission this is, consider that the Reporters Committee for Freedom of the Press is suggesting that the one search targeting Associated Press reporters we already know about was illegal:
Subpoenas of the news media for testimony and evidence are governed by the Attorney General’s guidelines found at 28 C.F.R. § 50.10 and incorporated into the U.S. Attorney’s Manual. See § 9-13.400. These guidelines were enacted in 1972 and were expanded specifically to cover telephone records in 1980. They were developed to accommodate both the interests of the government in prosecuting crime and the First Amendment interests in reporting on issues of public concern. We know this to be true because the Reporters Committee played a role in their promulgation. In this instance,where the Department subpoenaed two months of records related to 20 telephone lines, including records from major AP bureaus and the home phone and cell phone records of individual journalists, the Department appears to have ignored or brushed aside almost every aspect of the guidelines. Each one merits specific review.
Narrow scope of the subpoena: Section 50.10(g)(1) requires that a subpoena “should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.” The available evidence shows that no such constraints were applied here. Instead of being directed at relevant records on a limited topic for a closely circumscribed time period, the subpoena appears to have covered all records that could be relevant so that prosecutors could plunder two months of news gathering materials to seek information that might interest them.
Seeking information from alternative sources: Sections 50.10(b) and 50.10(g)(1) require the Department to take “all reasonable alternative investigative steps” before subpoenaing phone records. Although the public is not in a position to know what alternatives were pursued, the sheer breadth of this subpoena suggests that it was an initial investigative step taken as part of a prosecutor’s desire to gather up even the most remote material when beginning an investigation.
Obligation to inform and negotiate: Section 50.10(d) requires federal prosecutors to disclose their intent to pursue a subpoena and negotiate with the news media in “all cases” involving telephone records. Only if prosecutors determine that such negotiations would “pose a substantial threat to the integrity of the investigation” are these obligations removed. The purpose of such an exception is to ensure, in the rare inquiry where there is a reason to be concerned about the preservation of evidence, that records are not lost or destroyed. By deciding in this case involving one of the nation’s oldest and most respected news organizations that a subpoena would pose such a threat, the Department has severely harmed its working relationship with the news media, which time and time again have undertaken good-faith efforts to cooperate with government lawyers in a way that protects the public’s interest both in law enforcement and in independent and autonomous news gathering.
You really have to wonder just how many times reporters have been the targets for these sort of searches, and why they were apparently so routine.