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Christopher H. Schroeder Headshot

Why the Justice Department May Be Right

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Critics of the Justice Department's subpoena of AP telephone records have shamelessly mischaracterized the Department's actions and the purposes for them. Any interference with the free press merits close scrutiny, but that scrutiny needs to consider just what the Department actually has done and why.

First, we know from statements Department officials have made, as well as from a letter sent by the Deputy Attorney General to the AP, that the Department has obtained a listing of the telephone numbers of calls received and made from a number of AP telephones during specific dates in April and May of 2012. That's serious business, to be sure, but it is nowhere near "spying" on the AP in a "big, widespread and open way," as Rachel Maddow has asserted.

Why did the Justice Department need even these limited records? One prevalent suggestion is that the government can only have had one purpose in mind: to intimidate government employees who want to reveal malfeasance in government operations.

I am fairly confident that the desire to prevent such whistleblowers is a woefully inaccurate description of what animates DOJ's current investigation. About a year ago, someone within the government who had access to highly classified information about an intelligence operation in Yemen involving a double agent saw fit to talk about it with the Associated Press. When senior government officials learned that the Associated Press had this story and intended to publish it, those officials realized that the agent's cover had been blown. Anxious for his safety, the officials prevailed on the AP to delay publication so that first the agent's family and then the agent himself could be extracted to safety. The AP then published its story, which focused on thwarting a plot to use a new and improved underwear bomb to blow up an airplane bound for the United States.

What went completely without mention in the initial coverage was the fact that thwarting this plot was not the objective of the ongoing undercover operation. Its true objective was to gain enough intelligence to locate and neutralize the master bomb builder, Ibrahim Hassan al-Ashiri, who works with an Al-Qaeda affiliate, Al-Qaeda in the Arabian Peninsula (AQAP). Penetrating AQAP is incredibly difficult. This double agent provided a rare opportunity to gain critical, life-saving information. Whoever disclosed the information obtained by the AP had not only put the agent's life and his family's life in danger. He also killed a golden opportunity to save untold more lives that now remain at risk due to al-Ashiri remaining at large.

This explains why the Attorney General recently called the unauthorized disclosure a "very grave leak," as well as why the FBI Director used only slightly less ominous language to describe it nearly a year ago. It also explains why the Justice Department is taking this investigation so seriously. What we have here is not a whistleblower exposing cost overruns at the Defense Department or harsh treatment of detainees or politically motivated IRS practices or conversations taking place in Libya the night of the Benghazi attack. Far from doing anything wrong, or neglectful of the public interest in any way, our country's intelligence entities were doing everything right and were potentially on the verge of a major counter-intelligence success in neutralizing a key AQAP mastermind who is actively plotting to kill innocent civilians. Then some person inside the government decided to destroy the entire operation and to endanger human lives. It is no wonder this is against the law.

In short, this disclosure was a big deal, and a criminal investigation into it was well warranted. From all outward appearances, the Justice Department has been hard at it for a year. The FBI has conducted 550 interviews, presumably including all the people with knowledge of the operation, and has undoubtedly taken numerous other investigatory steps as well. While the Department was exhausting these steps, it apparently left the AP's phone records alone, despite the obvious fact that at some point the source of this information must have been in contact with one of the five AP reporters who cover national security and perhaps their editor, and these records might provide a way to identify the wrongdoer. The dates for which toll records finally were subpoenaed probably correlate to dates in the chronology during which there is reason to believe that such contact was made.

At the point of issuing the subpoena, there may have been no reasonable basis for distinguishing the likelihood of involvement of any of the six individuals at the AP, which would explain why the date-targeted toll records of each of them were sought. The generic AP phones at the different AP bureaus might also have been used for some of the communications to or from the wrongdoer, but toll records do not distinguish between different individuals who are using the phone; they only record the phone number of a call made to or received from it. The resulting "sweep" or "dragnet" of records may seem ominous from the AP's perspective, but from an investigatory perspective the scope of the toll record subpoena may have been narrowed as much as possible, which is what the Department's own regulations require. The delayed notice of the subpoena is very likely justified by a concern that someone at the AP might tip off the wrongdoer, enabling that person to destroy records or other critical evidence before the FBI could serve and execute a search warrant.

On the Huffington Post, Geof Stone has provided a valuable explication of the constitutional and statutory rules applicable here, concluding "that nothing the Department of Justice did in this investigation violated the Constitution ... [or] any federal law." Geoff also reviews the DOJ regulations that are designed to be more protective of the free press than the outer limits of the law and the Constitution. Like him, I have no way of knowing whether these regulations were completely satisfied, a judgment that requires knowing more details about the investigation than we now have. We know enough now, however, to say that the leak was truly a serious one, that it is in no way comparable to whistleblowing, and that the Department has exercised considerable restraint in its investigation. While further disclosures about the investigation - perhaps once a case is made and charges brought -- might reveal missteps on the government's part, the deafening drum beat of overblown charges about the Department's actions seems quite unwarranted.

Christopher H. Schroeder is professor of law and public policy studies at Duke University. From April 2010 through 2012 he was Assistant Attorney General for the Office of Legal Policy, United States Department of Justice. He has no non-public knowledge of the criminal investigation.