CJR: Obama admin surveillance of reporters "broader than previously known"

The new indictment against Julian Assange, as John noted earlier, will no doubt generate accusations that the Trump administration is conducting a war on journalists. For a look at what a real war on journalism looks like, however, we can turn to an earlier report today from the Columbia Journalism Review and its analysis of actions taken by the Obama administration seven years ago. It was already widely known that efforts to find leakers in 2012 had resulted in surveillance of reporters by Eric Holder’s Department of Justice.

What wasn’t known until now was the astounding breadth of that effort:

new report obtained by the Knight First Amendment Institute at Columbia University and the Freedom of the Press Foundation (where the authors work) under the Freedom of Information Act shows that the DOJ’s actions against the AP were broader than previously known, and that the DOJ considered subpoenaing the phone records of other news organizations, including The Washington PostThe New York Times, and ABC News. Moreover, they reveal how narrowly the DOJ interprets the Media Guidelines, the agency’s internal rules for obtaining reporters’ data. …

The report, which was submitted to then–Attorney General Eric Holder in 2013, reveals that the leak probe was broader than previously understood. It reveals, for example, that, while the Justice Department obtained telephone toll records for 21 telephone numbers, the agency in fact issued “30 subpoenas to obtain telephone toll records for 30 unique telephone numbers.” The report reveals that those 30 subpoenas were intended to target seven reporters and editors, and covered a period of six weeks spanning April 1, 2012 to May 10, 2012.

The report also shows that, at least at one stage of their investigation, Justice Department attorneys considered subpoenaing the records of The Washington Post, The New York Times, and ABC News. What’s more, the report strongly suggests that the attorneys went so far as to obtain “telephone numbers and other contact information” for reporters and editors at those organizations who had worked on articles about the Yemen bomb plot. The report records, however, that the attorneys ultimately decided against issuing additional subpoenas.

The report comes from the Office of Professional Responsibility, and consists of fifty-two pages that recount the DoJ’s leak probe, a four-page appendix, and a one-page cover letter that stretches into two pages with signatures. Both the report and the cover letter note that OPR “prepared its report relying on only unclassified documents or unclassified portions of classified documents,” but even a cursory scan shows significant redactions throughout. About half of the cover letter itself is redacted, and even a quarter of the Subject line is blacked out.

You have to see this juxtaposition to grasp the absurdity. On page three, the authors redact even the purpose of the investigation, then note that they didn’t use any classified information:

So why redact anything?

One should compare this to the limited redactions of Robert Mueller’s report on the special counsel investigation. Roughly eight percent of that was redacted in the publicly released version, and only two percent in the edition provided to congressional leadership.  In contrast, entire pages of this OPR report are blocked out on the basis of classification (from unclassified material!), and just a rough estimate puts the redaction level close to 50% — maybe higher.

Especially useful in this regard is the last section, entitled “Recommendations.” It consists of an introductory paragraph that explains its intent to “improve the process by which the Department obtains records from news media organizations[.]” That is followed by six paragraphs — all entirely redacted, even though it’s supposedly about practices, and only based on unclassified source material.

So we don’t actually know what OPR recommended to improve matters, nor really everything they found about potential wrongdoing in their surveillance of reporters. CJR’s analysts do note, however, that the basis for OPR’s conclusion of “nothing to see here” seems very suspect:

Disturbingly, the report does not come close to explaining why the subpoenas targeted the trunk lines of major AP offices—lines which could potentially reveal communications with confidential sources across all of the AP’s newsgathering activities. The report concludes that “although the [Justice] Department subpoenaed telephone records for several telephone numbers that subsequently were discovered not in fact to relate to an [AP] reporter or editors,” it was sufficient that “at the time when the subpoenas were sought, investigators had a factual basis for believing that those telephone numbers did relate to [AP] personnel.”

But merely requiring some evidence that a telephone number “relates to” a journalist is an extraordinarily low bar. In almost every case, the general phone numbers of a news organization will “relate to” any one of its reporters or editors.

Moreover, the notion that records for phone communications are not nearly as sensitive as the contents of those communications is dangerously misguided. As the Supreme Court recognized just last year, in Carpenter v. US, non-content phone data can provide an intimate window into a person’s life. For journalists, it can compromise the integrity of the newsgathering process by exposing the stories they are working on and the identity of countless sources.

The same practices continue in the Trump-era DoJ, CJR says, pointing to the Ali Watkins case last year. There’s plenty to criticize in that instance too, but at least the DoJ wasn’t trawling an entire news organization’s comms to find a leaker, and potentially targeting several entire news organizations. Moreover, we never did get a straight answer on what transpired in 2012, even though Holder and the Obama administration had been informed of it since 2014. And thanks to massive redactions dealing with unclassified source material, we still don’t have the full story. And don’t forget, this is just the one instance we know about.

If we are going to criticize attacks on journalism, then let’s be clear on the identities of the most malevolent actors in that war. And let’s also be clear on which DoJ took redaction responsibilities seriously and which abused that power to hide its own wrongdoing.