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The Anonymous DOJ Handmaiden of Political Whim

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Adam Liptak has an odd story on the increasing use of technology to pursue leaks.

I find it odd for two reasons. In spite of the fact that he nods to technology and has Lucy Dalglish relate the same story I described here, in which a national security representative told her “they know” who journalists are talking to:

“I was told in a rather cocky manner” by a national security representative, Ms. Dalglish recalled, that “the Risen subpoena is one of the last you’ll see.”

She continued, paraphrasing the official: “We don’t need to ask who you’re talking to. We know.”

He doesn’t talk about the means to get that information–neither the internet based collection methods nor the FBI’s new Domestic Investigation and Operations Guide rules which allow the government to get journalist call records without a subpoena in some cases. It seems important to explain that the new circumstances involve not just technology, but also a unilateral change in legal policy with regards to the communications of  journalists (albeit one that mirrors a similar change for all other Americans).

The government can prosecute more leaks now because the technology has enabled them to change the rules on journalists without, thus far, any significant outcry.

The other funny part of the Liptak story is this anonymous lie from a DOJ official explaining DOJ’s selective enforcement of leaks.

“The Justice Department has always taken seriously cases in which government employees and contractors entrusted with classified information are suspected of willfully disclosing such classified information to those not entitled to it,” a department official explained. “As a general matter, prosecutions of those who leaked classified information to reporters have been rare, due, in part, to the inherent challenges involved in identifying the person responsible for the illegal disclosure and in compiling the evidence necessary to prove it beyond a reasonable doubt.”

This statement is, of course, utter horseshit. Take the Nicholas Schmidle story revealing key, top secret details of the Osama bin Laden raid, or the example of John Brennan speaking on the record about a topic that the government has told courts is a state secret. Those sources are pretty easy to find. The sources involved are pretty clearly John Brennan, James Cartwright, Ben Rhodes, Marshall Webb and … John Brennan again. All those men have Top Secret clearances which would make it easy for the government to get their call records. From there, the government would have the same kind of evidence they’ve got tying Jeffrey Sterling to James Risen.

Only, the government is not going to prosecute those violations of secrecy. Not because they don’t have the evidence or couldn’t prove their case. But because these leaks serve a political purpose that people high up enough in the Administration has apparently deemed more valuable than all the claims they make–occasionally with good reason–about the importance of keeping national security information secret.

And that, I suspect, is why this DOJ official has said this anonymously. Because it’s the other part of the equation, the one that undermines DOJ’s claim to be enforcing rule of law, that gets really embarrassing. DOJ won’t or can’t describe its full approach to leaks–which is to pursue those it can that are deemed embarrassing by the political powers that be, but to ignore those that are deemed useful.

DOJ needs to keep this a secret, because admitting it would be to admit they are now the handmaiden of not the law, but political whim.

Political whim, backed by intrusive new technologies and unilateral rule changes about the deference shown to journalists.

Did the Government “Know Who Journalists Are Talking To” in the Kiriakou Investigation?

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As I laid out in this post, the complaint in the Jon Kiriakou case shows that the Patrick Fitzgerald-led investigative team could have found Kiriakou as the ultimate source for some Gitmo detainee lawyers’ information on two people associated with the torture program without accessing journalists’ communications directly (though the FBI has the contents two of Kiriakou’s email accounts, which likely contain a great deal of communication with journalists).

The sole possible exceptions are two emails between Journalist A and the Gitmo detainee lawyers’ investigator:

At 11:31 a.m. on August 19, 2008, approximately two hours after KIRIAKOU disclosed Covert Officer A’s last name to Journalist A, Journalist A sent an email to the defense investigator referenced above that contained Covert Officer
A’s full name in the subject line. The email further stated: “His name is [first and last name of Covert Officer A].” At 1:35 p.m., Journalist A sent a final email to the defense investigator in which he stated: “my guy came through with his memory.” Neither Journalist A nor any other journalist to my knowledge has published the name of Covert Officer A.

[snip]

For example, in an email dated April 10, 2008, Journalist A provided the defense investigator with Officer B’s home phone number.

The implication in the complaint is that the FBI got these emails from the investigator. But unlike Kiriakou’s emails, which it explains were, “recovered from search warrants served on two email accounts associated” with Kiriakou, the complaint doesn’t explain how and from whom the FBI obtained the emails between Journalist A and the defense team investigator.

Nevertheless, the complaint provides fairly innocuous possible explanations for how the FBI got a whole lot of emails involving journalists for this investigation. So maybe we have nothing to worry about.

Or maybe we do. It is also possible the government collected all communications within two degrees of separation from the defense investigator–thereby exposing a wide range of journalists’ sources–and we’d never know it.

That’s true for two reasons.

First, because this investigation is the first known leak investigation that has extended into the period–post October 15, 2011–during which the new Domestic Investigation and Operations Guide was in effect. The new DIOG made it a lot easier to use National Security Letters to get the contact information of journalists in investigations, like this one, with a national security nexus.

[T]he new DIOG seems to make it a lot easier to get news media contact records in national security investigations. A heavily-redacted section (PDF 166) suggests that in investigations with a national security nexus (so international terrorism or espionage, as many leak cases have been treated) DOJ need not comply with existing restrictionsrequiring Attorney General approval before getting the phone records of a journalist. The reason? Because NSLs aren’t subpoenas, and that restriction only applies to subpoenas.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

So DOJ can use NSLs–with no court oversight–to get journalists’ call (and email) records rather than actually getting a subpoena.

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