Eric Holder defends Justice Department’s subpoena of Associated Press phone records
Attorney General Eric Holder yesterday defended the Justice Department’s decision to secretly subpoena the phone records of Associated Press reporters to investigate a “very serious leak” of a foiled Al Qaeda plot to use a sophisticated underwear bomb to bring down a U.S. airliner last May.
The FBI investigation was ordered after the Associated Press published a story on May 7, 2012 revealing that Al Qaeda operatives in Yemen were planning an attack using an upgraded underwear bomb, made without any metals, that can slip past airport metal detectors. The plot, which was foiled by the CIA, was linked to Fahd Mohammed Ahmed Al-Quso, a top leader of Al Qaeda in the Arabian Peninsula, who was killed in a U.S. drone strike a day before the AP’s story was published.
(The AP article noted that the story’s publication was delayed for several days because “sensitive intelligence operation was still under way.”)
“This was a very serious – a very serious leak – 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 that I’ve ever seen,” said Attorney General Eric Holder. “It put the American people at risk, and that is not a hyperbole. It put the American people at risk. And trying to determine who is responsible for that, I think, required very aggressive action.”
The Associated Press received a letter from United States Attorney Ronald C. Machen, Jr. last Friday notifying the news organization that the Department of Justice had obtained telephone records of “more than 20” phone lines – including the office, home, and cell lines – of AP reporters as part of the leak investigation. The subpoena covered phone records from April and May of 2012.
According to a letter sent to the Justice Department by Associated Press CEO Gary Pruitt, the phone records were seized “without advance notice to AP or to any of the affected journalists”, which deprived the AP of the opportunity to voluntarily cooperate with the investigation or the opportunity to quash the phone records subpoena in court.
Pruitt wrote that “there can be no possible justification for such an overbroad collection” of the AP phone records, which could potentially compromise the new organization’s confidential sources for other stories reported on during that period.
“We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news,” according to Pruitt.
The AP has asked the Justice Department to “immediately return” the phone records to the AP and to “destroy all copies.”
At a press conference on Tuesday, Holder was bombarded with questions about whether the Justice Department had acted appropriately in secretly subpoenaing the AP’s phone records.
Holder insisted that the actions taken in the leak investigation were based on the “facts” and “not as a result of a policy to ‘get the press’ or to do anything of that nature.”
Holder disclosed that he had recused himself from the leak investigation and delegated the responsibility to Deputy Attorney General James Cole.
“I have frequent contact with the media and try to make sure that this investigation was seen as one that was independent to avoid even the possibility of an appearance of a conflict, I made the determination to recuse myself,” Holder explained. “This matter has…has thereafter been conducted by the U.S. Attorney here in Washington, D.C. under the supervision of the Deputy Attorney General. The Deputy Attorney General would have been the one who ultimately had to authorize the subpoena that went to the AP.”
When pressed on whether the Justice Department followed the proper protocols – including seeking voluntary cooperation of the AP prior to subpoenaing the phone records, Holder defended the actions of the department despite repeatedly claiming that he is “not familiar” with the facts of the investigation after his recusal.
“I’m not familiar with all that went into the formulation of the subpoena. I was recused from that matter. But I’m confident that the people who are involved in this investigation who I know for a great many years and I’ve worked with for a great many years followed all of the appropriate Justice Department regulations and did things according to DOJ rules,” said Holder. “I’m confident, knowing the people here but not knowing the facts, that the decision to do what they did here is consistent with their having exhausted all the other possibilities.”
- Associated Press: Updated: AP responds to latest DOJ letter
- Associated Press: Letter to Attorney General Eric Holder dated May 13, 2013 (PDF)
- C-Span.org: Video of Attorney General Eric Holder’s press conference on May 14, 2013
- WhatTheFolly.com: Transcript: Press briefing Q&A with Attorney General Eric Holder – May 14, 2013
- WhatTheFolly.com: Transcript: Attorney General Eric Holder’s remarks on the Associated Press phone records – May 14, 2013 press briefing
- WhatTheFolly.com: Associated Press: CIA foils another Al Qaeda underwear bomb plot