Holder announces major changes to leak probe guidelines

Aamer Madhani | USA TODAY

WASHINGTON — The Justice Department on Friday announced changes to how it will conduct investigations of leaks of classified information to reporters, making it more difficult for prosecutors to obtain journalists' phone records and other private information without giving news organizations advance notice.

Attorney General Eric Holder delivered his recommendations to President Obama on Friday morning ahead of the agency releasing its long-awaited report late Friday afternoon.

The Holder report comes after the Obama administration came under fire following revelations earlier this year that federal authorities secretly obtained the e-mails and tracked the movements of Fox News reporter James Rosen and obtained a treasure trove of phone records for lines used by Associated Press journalists.

"The Department of Justice is firmly committed to ensuring our nation's security, and protecting the American people, while at the same time safeguarding the freedom of the press," Holder said in a statement.

Matt Lehrich, a White House spokesman, said Obama appreciated the Justice Department's effort to revise the guidelines and called it an "important step" to balancing national security concerns with the rights of journalists.

According to the rule changes, the government will no longer be able to pursue a reporter as a co-conspirator in a criminal leak as a way to get around a legal bar on secret search warrants for reporting materials.

That tactic was used in the FBI's argument in the Fox News case. Specifically, an affidavit filed in the case by an FBI agent said Rosen may have acted as "an aider, abettor and/or co-conspirator" in the leak of classified information to the government's main target in the investigation, a State Department official.

In addition, under the new rules, a search warrant can no longer be issued if the reporter is engaged in ordinary news gathering activities and if the individual is not the explicit target of the investigation. Court documents suggested that Rosen used flattery to coax the information out of the government official who leaked him documents. Such behavior would presumably fall under the ordinary news gathering provision.

Another change in the guidelines would make it more difficult for prosecutors to obtain a reporter's calling records without giving the news organization advance notice.

Currently, notice is provided to the news organization only if an assistant attorney general agrees that it would not pose a clear or substantial threat to the investigation. Under the new guidelines, the department would also provide notice except when the attorney general finds that it would pose a threat to the investigation.

Media organizations would be notified within 90 days even in cases in which it's determined that there is a threat, and the attorney general would have to sign off on the delayed notification, according to the Justice Department report.

"It is expected that only the rare case would present the Attorney General with requisite compelling reasons to justify a delayed notification," the report said.

Administration officials defended the investigations that led to the capture of journalists' records from AP and Fox's Rosen. But Obama also acknowledged that he had concerns that such investigations could have a chilling effect on journalists conducting investigative journalism and called on Holder to conduct a review of department rules that govern leak investigations involving the media.

"I've raised these issues with the attorney general, who shares my concern," Obama said in a May speech. "So he's agreed to review existing Department of Justice guidelines governing investigations that involve reporters, and he'll convene a group of media organizations to hear their concerns as part of that review. I've directed the attorney general to report back to me by July 12th."

Holder subsequently met with journalists and legal counsel representing several news organizations, including USA TODAY.

In the Fox News case, the secret surveillance of Rosen was part of an investigation of former State Department analyst Stephen Kim, who is charged with leaking a classified report on North Korea.

The monitoring of Rosen was unsealed in court documents in 2011 but went unnoticed until The Washington Post published a report in May revealing the secret subpoenas in that case.

The Associated Press said it believes the probe of its phone lines was part of a investigation of how information about a foiled terrorist plot was leaked to the news organization.

On Friday the news agency said it was "heartened" by the Justice's Department's effort to revise the guidelines.

"The Associated Press is gratified that the Department of Justice took our concerns seriously," the AP said in a statement. "The description of the new guidelines released today indicates they will result in meaningful, additional protection for journalists."