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Holder Defends Justice Department in Seizure of Journalists’ Records Justice Dept. Defends Seizure of Phone Records
(about 2 hours later)
WASHINGTON — Attorney General Eric H. Holder Jr. on Tuesday fielded questions about the seizure of telephone records from reporters and editors at The Associated Press, which apparently came in connection with an investigation of leaks inside the executive branch. WASHINGTON — Attorney General Eric H. Holder Jr. on Tuesday defended the Justice Department’s sweeping seizure of telephone records of Associated Press journalists, describing the article by The A.P. that prompted a criminal investigation as among “the top two or three most serious leaks that I’ve ever seen” in a 35-year career.
Mr. Holder said that the leak in question — the revelation by The A.P. of a foiled terrorist plot by Al Qaeda’s branch in Yemen a year ago — was among the two or three most serious leaks he had seen since the 1970s. “It put the American people at risk,” he said, without elaborating. “It put the American people at risk, and that is not hyperbole,” he said in an apparent reference to an article on May 7, 2012, that disclosed the foiling of a terrorist plot by Al Qaeda’s branch in Yemen to bomb an airliner. “And trying to determine who was responsible for that, I think, required very aggressive action.”
Mr. Holder said that he had recused himself last year from the leak investigation and therefore had not made the decision to seek sweeping subpoenas for two months of call records for 20 telephone lines used by The A.P. and its journalists. He said he decided to turn over supervision of leak inquiries to his deputy, James M. Cole, “to make sure that this investigation was seen as independent” after F.B.I. agents interviewed him about leaks in June 2012. In a statement in response, The A.P.’s president and chief executive, Gary Pruitt, disputed that the publication of the article endangered security.
Mr. Holder said he was confident that his subordinates had sought the subpoenas in accord with Justice Department regulations. Members of Congress and press advocates have expressed concern about the subpoenas, revealed on Monday by The A.P., as a dangerously broad incursion into the ability of the news media to operate without government scrutiny and a violation of press freedom. “We held that story until the government assured us that the national security concerns had passed,” he said. “Indeed, the White House was preparing to publicly announce that the bomb plot had been foiled.” Mr. Pruitt said the article was important in part because it refuted White House claims that there had been no Qaeda plots around the first anniversary of the killing of Osama bin Laden.
Mr. Holder declined to say whether he had also recused himself from a separate investigation of unauthorized disclosures to The New York Times about American cyberattacks on Iran’s nuclear program. At a news conference at the Justice Department, Mr. Holder also disclosed that he recused himself last year from overseeing the case after F.B.I. agents interviewed him as part of their investigation. His deputy, James M. Cole, approved the subpoena seeking call records for 20 office and personal phone lines of A.P. reporters and editors.
The leak about the Yemen plot is being investigated by the United States attorney for the District of Columbia, Ronald C. Machen Jr., and the disclosures about the cyberattacks on Iran are being examined by the United States attorney for Maryland, Rod J. Rosenstein. Mr. Pruitt disclosed the seizure of the phone records on Monday in a letter to Mr. Holder protesting the action as overly broad and “a serious interference with A.P.’s constitutional rights to gather and report the news.”
The White House deflected questions during its own press briefing Tuesday. The press secretary, Jay Carney, said he could not comment on the Justice Department’s actions amid the continuing investigation. But in a letter to The A.P. on Tuesday, Mr. Cole portrayed the search as justified and disputed a detail in the wire service’s account of the Justice Department action. While the news organization had said that records from “a full two-month period” had been taken, Mr. Cole said that the seizure covered only “a portion” of two calendar months.

Mark Landler contributed reporting.

“We understand your position that these subpoenas should have been more narrowly drawn, but in fact, consistent with Department policy, the subpoenas were limited in both time and scope,” he wrote. He added that “there was a basis to believe the numbers were associated with A.P. personnel involved in the reporting of classified information. The subpoenas were limited to a reasonable period of time and did not seek the content of any calls.”
The dispute centered on an ambiguous description in the original notice to The A.P., which an employee of the news organization said was sent as an attachment to an e-mail on May 10 from Jonathan M. Malis, a federal prosecutor, to several A.P. employees.
The attached letter, the employee said, consisted of a single sentence citing the Justice Department regulation for obtaining journalists’ telephone records, and saying that the A.P. “is hereby notified that the United States Department of Justice has received toll records from April and May 2012 in response to subpoenas issued” for 20 phone numbers in five area codes and three states.
The regulation requires subpoenas for reporters’ tolling records — logs of calls made and received — to be narrowly focused and undertaken only after other ways of obtaining information are exhausted. Under normal circumstances, news organizations are to be notified ahead of time so they can negotiate or ask a judge to quash the subpoena, but the regulation allows exceptions, in which case journalists must be notified no later than 90 days afterward.
Mr. Cole said the department had undertaken “a comprehensive investigation” before seeking the phone records, including more than 550 interviews and a review of “tens of thousands of documents.” The calling records, he added, “have been closely held and reviewed solely for the purposes of this ongoing criminal investigation” and would not be used in any other case.
The A.P. on Tuesday was still examining whether any telephone companies had tried to challenge the subpoena on its behalf before cooperating. But at least two of the journalists’ personal cellphone records were provided to the government by Verizon Wireless without any attempt to obtain permission to tell them so the reporters could ask a court to quash the subpoena, the employee said. Debra Lewis, a Verizon Wireless spokeswoman, said the company “complies with legal processes for requests for information by law enforcement,” but would not comment on any specific case.
Lucy Dalglish, dean of the journalism school at the University of Maryland, criticized the Justice Department’s broad seizure of phone records, saying it would chill the ability of reporters to report the news. The subpoena came against the backdrop of six prosecutions of officials in leak-related cases under President Obama — twice the number prosecuted under all previous presidents combined.
“The message is loud and clear that if you work for the federal government and talk to a reporter that we will find you,” she said.
Jay Carney, a White House spokesman, on Tuesday reiterated that the White House had no involvement in the subpoena and portrayed Mr. Obama as “a strong defender of the First Amendment and a firm believer in the need for the press to be unfettered in its ability to conduct investigative reporting and facilitate a free flow of information.”
Justice Department regulations do not cover information about journalists’ e-mails. But the A.P. employee said the company operates its own internal e-mail server and had determined that the e-mails were not subpoenaed and no one at the A.P. had supplied information about them to the government.
One unanswered question is why investigators seized phone logs for the A.P.’s bureau in Hartford in addition to its New York and Washington offices. One of the reporters who worked on the bomb plot article, Matt Apuzzo, formerly worked in Hartford but moved to another bureau in 2005.
The leak investigation involving the A.P. is being run by Ronald C. Machen Jr., the United States attorney for the District of Columbia. In June, amid a Congressional uproar over disclosures in the news media of national security information, Mr. Holder assigned Mr. Machen and his counterpart in Maryland to lead two leak investigations.
The other investigation is believed to be focusing on disclosures made by David E. Sanger, a New York Times journalist, in a book and in articles in The Times about a joint American-Israeli effort to sabotage Iranian nuclear centrifuges with computer viruses. The Justice Department has declined to say whether it has issued a similar subpoena in that case, and Mr. Holder would not say on Tuesday if he is also recused from that investigation.
The May 2012 A.P. article disclosed that the Central Intelligence Agency had foiled a plot by the Qaeda branch in Yemen to destroy an airliner using an underwear bomb the government by then had in its possession. The next day, The Los Angeles Times and several other news organizations, including The New York Times, reported that the intended attacker had been a double agent.
By then, officials said, the double agent, who had reported to British, Saudi and American intelligence, had left Yemen and was not in danger. But both American and foreign intelligence officials were furious at the disclosures, which they said alerted terrorists prematurely that the plot was compromised and might discourage potential agents from working against Al Qaeda.

Christine Haughney contributed reporting from New York.