Internal Report Says DOJ Did Nothing Wrong Targeting Journalists' Communications To Hunt Down Leakers

from the first-step-is-forgiving-yourself-I-guess dept

The DOJ's current prosecution of Julian Assange threatens the profession of journalism. By turning cultivating sources and publishing classified documents into acts of treason, the DOJ is undermining protections supposedly guaranteed by the First Amendment and shored up by years of case law.

But the DOJ has been undermining these protections for years. Six years ago, news surfaced that the DOJ had issued 30 subpoenas for AP journalists' phone records. The fallout from this continues, which includes the DOJ modifying (very slightly) its rules for obtaining journalists' communication records.

When it comes to leak investigations, all bets -- and all Constitutional protections -- are off, apparently. The rules have exceptions and justifications to allow the DOJ to do what it wants to do anyway: spy on journalists until it can find the leak source. A new Office of Professional Responsibility report obtained by the Freedom of the Press Foundation FOIA request shows the DOJ convincing itself that threatening press freedoms is a responsible use of its powers.

The report is... important for what it tells us about the Justice Department’s Media Guidelines. Specifically, the report shows how weak the guidelines are, and how, in practice, the rules may offer little protection to journalists worried about being caught up in a criminal investigation. Although the guidelines have been revised since the AP subpoenas controversy, several of its standards remain intact. Among these is the requirement that proposed subpoenas be “narrowly drawn.” While substantial portions of the Office of Professional Responsibility’s analysis are redacted, its finding that the AP subpoenas were “as narrowly drawn as possible” appears to have hinged on the perceived seriousness of the leak; the decision not to subpoena the telephone records for employees at the Post, the Times, and ABC News; the inability of investigators to determine to which AP reporter or editor the leaker had provided classified information; and “perhaps most importantly” the fact “the subpoenas requested the records for—and not the contents of—telephonic communications.”

The report [PDF] shows more than that, though. It shows the DOJ also thought about subpoenaing records from several other news agencies, including the Washington Post and New York Times. It shows the DOJ believed its failure to locate the source of the leak using other means and methods justified targeting phone lines used by journalists. And its subpoenas didn't cover individual desks. The 30 subpoenas targeted multiple AP offices, starting with their trunk lines. Although the DOJ was only seeking info about communications with seven journalists, it decided the most efficient way to do this was to scrape phone records from the trunk, capturing every call made to and from these offices for over a month.

Ultimately, the report finds the DOJ did nothing wrong. It acknowledges the First Amendment concerns but says any collateral damage was necessary to find the source of the leak. And it will continue to do this if it feels the collateral damage to free speech protections is worth it. That appears to be almost any case where the DOJ's internal investigation of leaks reaches a dead end. Rather than redouble its internal efforts, it will target journalists' communication records.

This was always concerning. President Obama waged a war on whistleblowers, making it far more likely journalists -- those often on the receiving end of whistleblowing -- would be targeted by the federal government. This war hasn't ended. It has only intensified. President Trump's DOJ is fighting it own war on leaks, and that effort is coupled with Trump's open disdain for several news organizations. The DOJ has already justified its past abuses. It won't find it too hard to sleep at night going forward.

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Filed Under: 1st amendment, 4th amendment, communications, doj, foia, journalists, phone records, subpoenas, warrants

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