c.2013 New York Times News Service
WASHINGTON — Even before the FBI conducted 550 interviews of officials and seized the phone records of Associated Press reporters in a leak investigation connected to a 2012 article about a Yemen bomb plot, agents had sought the same reporters’ sources for two other articles about terrorism.
In a separate case last year, FBI agents asked the White House, the Defense Department and intelligence agencies for phone and email logs showing exchanges with a New York Times reporter writing about computer attacks on Iran. Agents grilled officials about their contacts with him, two people familiar with the investigation said.
And agents tracing the leak of a highly classified CIA report on North Korea to a Fox News reporter pulled electronic archives showing which officials had gained access to the report and had contact with the reporter on the day of the leak.
The emerging details of these and other cases show just how wide a net the Obama administration has cast in its investigations into disclosures of government secrets, querying hundreds of officials across the federal government and even some of their foreign counterparts.
The result has been an unprecedented six prosecutions and many more inquiries using aggressive legal and technical tactics. A vast majority of those questioned were cleared of any leaking.
On Thursday, President Barack Obama ordered a review of Justice Department procedures for leak investigations, saying he was concerned that such inquiries chilled journalists’ ability to hold the government accountable. Yet he made no apology for the scrutiny of the many officials whose records were searched or who had been questioned by the FBI.
“He makes the case that we have 18-year-olds out fighting wars and acting like adults, and we have senior administration officials quoted in stories acting like children,” said Tommy Vietor, a former National Security Council spokesman. Obama and top administration officials say some leaks have put Americans at risk, disrupted intelligence operations and strained alliances.
Some officials are now declining to take calls from certain reporters, concerned that any contact may lead to investigation. Some complain of being taken from their offices to endure uncomfortable questioning. And the government officials typically must pay for lawyers themselves, unlike reporters for large news organizations whose companies provide legal representation.
“For every reporter that is dealing with this, there are hundreds of national security officials who feel under siege — without benefit of a corporate legal department or a media megaphone for support,” a former Obama administration official said. “There are lots of people in the government spending lots of money on legal fees.”
When an agency spots classified information in the news, officials file what is called a “Crimes Report” with the Department of Justice, answering 11 standard questions about the leak, including the effect of the disclosure “on the national defense.”
FBI agents then set out to find the leaker, a process that has become far easier in recent years as email and other electronic records have proliferated.
Officials who have been questioned in the current investigations are reluctant to describe their experiences. But the account of William E. Binney, who spent more than 30 years at the National Security Agency, shows what can happen.
Binney, 69, who retired from the NSA in 2001, was one of several people investigated in an inquiry into a 2005 Times article on the spy agency’s warrantless wiretapping program.
He was cleared of any wrongdoing, but the investigation derailed his career and changed his life. Starting in March 2007, Binney said, he was interviewed by the FBI three times and felt he had cooperated fully.
But in July 2007, a dozen agents appeared at his house in Severn, Md. One of them ran upstairs and entered the bathroom where Binney was toweling off after a shower, pointing a gun at him.
Agents carried away a computer, disks and personal and business records. Last year, he and three former NSA colleagues went to federal court to get the confiscated items back; he is still waiting for some of them.
Binney spent more than $7,000 on legal fees. But far more devastating, he said, was the NSA’s decision to strip his security clearance, forcing him to close the business he ran with former colleagues, costing him an annual income of $300,000.
“After a raid like that, you’re always sitting here wondering if they’re coming back,” Binney said. “This did not feel like the America we grew up in.”
One of the most striking recent revelations about the Obama administration’s pursuit of leakers was the disclosure that the Justice Department had obtained emails from the Google account of James Rosen of Fox News, in which he corresponded with a State Department analyst suspected of leaking classified information about North Korea. Investigators routinely search the emails of suspected leakers, but Congress has forbidden search warrants for journalists’ work product materials unless the reporter has committed a crime.
A 2010 affidavit seeking the warrant — necessary, an FBI agent wrote, because the analyst had deleted emails in his own accounts — said Rosen qualified for that exception because he violated the Espionage Act by seeking secrets to report.
No U.S. journalist has been prosecuted for publishing classified information, and the administration insisted it has no intention of doing so. Attorney General Eric H. Holder Jr. signed off on the warrant request.
Of the thousands of leaks that have played a crucial role in the ebb and flow of public discourse over the years, only about a dozen resulted in criminal charges against those accused of disclosing the information, according to David Pozen, a law professor at Columbia University.
But the government’s willingness to go after journalists’ email and phone records without warning their news organizations — a practice that allows them to challenge the demand in court — appears to be increasing.
“There seems to have been a shift in attitude,” said Steven Aftergood, who directs a project on government secrecy for the Federation of American Scientists. “The latest revelations indicate that reporters’ communications are now fair game.”
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By contrast with the secret subpoena for AP and Fox News records, prosecutors openly demanded phone records from two Times journalists nine years ago — and set off a court battle.
A prosecutor sought the reporters’ phone records to see whether anyone had tipped them off about a planned seizure of assets from an Islamic charity in Illinois suspected of helping to finance al-Qaida. Prosecutors argued that a call from one of the reporters to charity officials had led them to shred documents before a federal raid on their offices.
The Times balked, saying the work of the reporters, Philip Shenon and Judith Miller, was protected under the First Amendment. After a federal judge ruled for the newspaper, the Bush administration appealed, eventually winning the case and obtaining the records — two years after the subpoena. No charges resulted.
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It is not clear how often the government has obtained reporters’ communications records. In the North Korea case, the FBI obtained call logs for five lines related to Rosen, and — as in the AP investigation — notified the news organization only afterward. That was nearly three years ago, a law enforcement official said. But the subpoena’s existence became public only this month, when unsealed court papers also showed the government had obtained the warrant for Rosen’s emails. FBI agents also studied one official’s entrances and exits from the State Department, obtained his Yahoo email information and even searched his hard drive for deleted files, documents unsealed this month showed.
On Saturday, a Fox News executive said that the notice had gone to News Corp., its parent company, on Aug. 27, 2010, but that Fox News was not told until Friday. The executive said they were still trying to sort out how the notice fell through the cracks.Erin Madigan, an AP spokeswoman, also said the AP was not contacted by the government about leak investigations into two 2010 articles.
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One, apparently centered on an article by reporters Matt Apuzzo and Adam Goldman published June 30, 2010, contained extensive details from an indictment, then still sealed, against Adnan Shukrijumah, accused of being an al-Qaida operative. The other, published July 8, 2010, was written in part by the same reporters and was about the arrest of terrorism suspects in Norway.
In both the Norway article and the more recent one about Yemen, the AP disclosed that it had delayed publication at the request of government officials. But law enforcement officials said the leaks were alarming because someone had shared information while overseas intelligence operations were still under way.
The investigation into reporting by David E. Sanger of The Times, about efforts to sabotage the Iranian nuclear program, appears to be one of the most active inquiries. Holder publicly announced the investigation last June, the same day he took similar action in the AP Yemen case.
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Obama, responding to criticism that his administration has gone too far in pursuing leakers, has also now revived support for enacting a federal media shield law. It would put the decision about whether to subpoena a journalist’s phone records before a judge rather than leaving it to the Justice Department, although the decision would be heavily weighted toward the government in national security cases.
Separately, more than a year ago, a U.S. District Court judge ruled that the First Amendment already gave her the power to quash a subpoena for testimony by a Times journalist, James Risen, in the prosecution of a former CIA official accused of leaking about an earlier effort to disrupt the Iranian nuclear program. The Obama administration has appealed.