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DOJ’s News Media Policies Reserved the Authority to Force James Risen to Testify

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James Risen’s lawyer, Joel Kurtzberg, argues that the News Media Policies released by DOJ last week mean his client should not have to testify in the Jeffrey Sterling case. (As I understand it, Michael Isikoff made a similar argument while moderating a panel including Eastern District of VA US Attorney Neil MacBride today too, though MacBride reportedly dodged any answer.) In a letter to the Fourth Circuit (which has been sitting on this decision for well over a year), he cites two paragraphs from the Policies — one affirming DOJ’s promise to access “member of the news media” materials only as a last resort, and another one calling for the “appropriate balance” between two competing interests of “protecting the American people” and “free press” — and then claims,

the standard that the DOJ now articulates in the report is the very same standard that the government argues should not be applied to Mr. Risen by the court in this case. The DOJ’s recent change in position is nothing less than an admission that the legal standard it asks this court to apply provides wholly inadequate protection for the interests at stake in this case.

Unfortunately, I think Kurtzberg misreads the way DOJ has specifically left Risen unprotected.

The first paragraph Kurtzberg cites ends,

The Department’s policy is to utilize such tools only as a last resort after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.

DOJ’s rules used to be interpreted to say sources would have to testify only if their testimony (or records) was necessary to identify their source or the content of the leak. This is the standard Leonie Brinkema used when she ruled Risen didn’t have to testimony because the government had already identified his source.

But with the language reserving the right to access journalist records or testimony if it is “essential to a successful prosecution,” DOJ has specifically reserved the right to do what they are doing in the Sterling case.

Indeed, their appeal of Brinkema’s decision argues that Risen must testify because it is crucial to the prosecution.

Risen is the only eyewitness to the crime and, as the recipient of the classified information at issue, he is inextricably linked to the criminal conduct. Risen’s testimony is the only direct evidence of Sterling’s guilt; no circumstantial evidence, or combination thereof, is as probative as Risen’s testimony or as certain to foreclose the possibility of reasonable doubt The information Risen can provide is therefore relevant and unavailable from other sources, and the government has demonstrated a compelling need for Risen’s testimony.

That is, even though DOJ has a slew of other evidence they say will prove Jeffrey Sterling was Risen’s source about a botched effort to deal Iran bad nuclear blueprints, they maintain Risen’s testimony is still irreplaceable for the trial.

They argue his testimony is “essential to a successful prosecution,” precisely one of the reservations DOJ included in their policies.

I’m not saying this is what the policy should be or that Risen’s testimony really is essential. I am saying DOJ seems to have included language that, according to them, at least, excludes Risen from protection.

I also am saying that journalists who celebrated these policies for their improvements in some areas have overestimated the degree to which DOJ really wants to change its approach to journalists involved in leak investigations.

Dear Eric Holder: You’re Doing Recusal Wrong

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Let me start this post by saying I think it is absolutely appropriate for Eric Holder to have recused himself from the UndieBomb 2.0 investigation, in part because — as someone read into the UndieBomb 2.0 operation, he was interviewed by the FBI (though so was James Cole, who is now in charge of the investigation), and he turned over his own phone contacts to the FBI — but also because top Administration officials like John Brennan at least should be under close scrutiny in this investigation.

Nor do I think, in his recusal, Eric Holder did anything in bad faith. I have zero reason to believe Holder is tampering with this investigation, in any way shape or form.

But Jeebus, Holder is doing this entire recusal thing wrong.

That’s true, first of all, because with a rabid Congress (at the time he recused from the investigation and now) accusing him of wrongly delegating this investigation to Ronald Machen in an investigation that could net incredibly powerful people as suspects, Holder did not write his recusal — or a delegation of authority of Attorney General powers — to James Cole, who is overseeing the investigation.

Now, Holder claims not to remember whether he memorialized his recusal in past cases, including the John Edwards investigation — the most high profile case in which he has recused. And though George Holding, who conducted that investigation and now represents the Raleigh, NC, area in Congress, was in the room, I’m not sure they clarified whether he had written anything down there, either. Holder was, however, very clear about what authorities he delegated to Patrick Fitzgerald when he investigated the John Adams Society, which led to the prosecution of John Kiriakou, having sent 3 letters (1, 2, 3) memorializing the limits of Fitz’ authority.

I think part of the problem is that Holder didn’t really appoint special counsels to investigate this matter, even while he made a big deal of appointing the people who — US Attorney for DC Ronald Machen’s appointment rather then US Attorney for Eastern District of VA Neil MacBride aside — would have been investigating it anyway. Dumb. Congress was screaming for some kind of formality, and Holder didn’t establish that formality.

And then there’s the journalist-subpoenaing precedent of the Plame investigation where Fitz several times got letters clarifying his authority. The first of those reads,

By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department’s investigation into the alleged unauthorized disclosure of a CIA employee’s identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.

This came in handy later in the investigation when Libby’s lawyers challenged Fitz’ authority.

Then, Holder’s recusal hasn’t been very strict. Most troublingly, Eric Holder reviewed the letter James Cole sent to the AP (though Holder saw a draft which, according to his press conference, included things like details on the specific scope of the subpoena that don’t appear in the final letter). NPR’s Carrie Johnson asked him about this.

Johnson: Is that normal practice when you’re recused from a case?

Holder: No, I just wanted to see the le–I saw I mean I saw saw the draft letter this morning. And I just wanted to have an opportunity to see what it looked like so I’d have at least some sense of the case in case there were things in the letter that I could talk about with the press.

Reviewing this letter — particularly before changes got made to it!! (changes which appear to have deprived the AP of full notice of the call record grab) — simply isn’t appropriate for someone recused from the case!

Again, I’m not suggesting malice here.

But the AP has already — rightly, in my opinion — challenged whether DOJ complied with its own guidelines on media subpoenas. In particular, AP complained that they had not been given notice and an opportunity to cooperate. That’s one of the guidelines that requires AG involvement.

Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

Yet the guy who signed this subpoena and with it signed off on the claim that alerting AP to the subpoena would do grave damage to the investigation  — James Cole — apparently has no piece of paper giving him authority to sign it.

If DOJ ultimately decides to charge the AP’s sources, if that person has the kind of legal representation DC bigwigs often have, I fully expect them to challenge every bit of their prosecution. After all, by subpoenaing the AP, Cole claimed that DOJ could not get the information from any other source. So if AP’s sources are indicted, they can rest assured that their prosecution went through this bottleneck of an Acting AG who had no paperwork to prove he had the authority to sign off on the claims he was making to get information he was certifying was absolutely necessary to find them. And from this subpoena forward, everything else will be fruit of a tainted AG, at least if you’ve got fancy lawyers.

Dumb.

One last thing. Also in today’s hearing, Holder admitted that it probably would have been a good idea to write down this recusal thing in public. Which, if they do ever charge AP’s sources and if said sources have the resources to make this obvious challenge, they’ll cite in court to document that even the guy who delegated this authority thinks it would be smarter if he did so in writing.

Seriously, this entire recusal process has been an own goal. As I said, I don’t think DOJ is pulling anything fishy. But the entire point of recusing is to ensure there’s proof nothing fishy happened. And in this case, DOJ has anything but.

The AP Grab: NSL versus Subpoena

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Update: In his letter responding to AP’s complaints, Deputy Attorney General James Cole says these were subpoenas. Cole tries to argue the scope of the subpoena was fair. But what he doesn’t explain is why the government didn’t give the AP notice or an opportunity to turn over the contacts voluntarily.

I want to return to a question I introduced in my post describing DOJ’s grab of call records from 20 AP phone lines.

The assumption has been that DOJ subpoenaed these call records. While that’s probably right, I still think it’s possible DOJ got them via National Security Letter, which DOJ has permitted using to get journalist contacts in national security investigations since fall 2011. I’ll grant that AP President Gary Pruitt mentions subpoenas twice in his letter, once specifically in connection with DOJ’s grab and once more generally.

That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.

The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with 28 C.F.R. §50.10 and should therefore never have been undertaken in the first place. The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be “as narrowly drawn as possible.’’ This plainly did not happen. [my emphasis]

But the entire point of Pruitt’s letter is to call attention to the way in which DOJ did not honor the spirit of its media guidelines, which are tied to subpoenas, not NSLs. That’s what the Domestic Investigations and Operations Guide says explicitly (PDF 166) when it talks about using NSLs with journalists: when using NSLs, the rules don’t apply.

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]

For a variety of reasons, I think it possible the AP doesn’t actually know how DOJ got its reporters’ contact information. And thus far, the most compelling argument (one Julian Sanchez made) that DOJ used a subpoena is that they did ultimately disclose the grab to the AP; with NSLs they wouldn’t have to do that, at least certainly not in the same time frame.

But Pruitt’s emphasis is sort of why I’m interested in this question: either DOJ used a subpoena and in so doing implicitly claims several things about its investigation, or DOJ used an NSL as a way to bypass all those requirements (and use this as a public test case of broad new self-claimed authorities). Both could accomplish the same objective — getting call records with a gag order — but each would indicate something different about how they’re approaching this investigation.

Here are DOJ’s own regulations about when and how they can subpoena a journalist or his call records. Some pertinent parts are:

(b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.

(d) Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

(g)(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.

(g)(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days. [my emphasis]

US Attorney Ronald Machen statement about the grab largely echoes those parts of the regulations (though somehow he forgot to mention that “subpoenas should be as narrowly drawn as possible”).

We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations. Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media. We must notify the media organization unless doing so would pose a substantial threat to the integrity of the investigation. Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.

So either DOJ used an NSL, which would give them a longer gag, fewer express limits on the scope of the request, and zero expectation of giving notice beforehand (in addition, obtaining NSLs from journalists in national security cases doesn’t appear to require Attorney General sign-off). In which case Machen is playing the same kind of word games the DIOG plays, acknowledging there are regulations the spirit of which DOJ appears to have violated.

Or Machen maintains the following about the grab:

  • DOJ has already checked the US person call records of the people known to be read into the UndieBomb plot and not found any obviously calls or emails implicating the journalists involved in the story and either hasn’t been able to access or hasn’t found any obvious clues in the potential Saudi, Yemeni, and British people read into the operation (note, some Saudis were on the record on this within days and Yemenis also appear to have leaked it).
  • Notifying the AP that DOJ was going to go get journalist contact information for two months, in an investigation that has been widely publicized for an entire year, would pose some threat to the investigation. Normally, such a claim is usually based on the premise that revealing the investigation at all would alert the targets who would otherwise not know about it, but that’s obviously not what’s going on here, because this has been one of the most public leak investigations in recent years.

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The US Attorney for CIA Scrambles to Cover-Up CIA’s Torture, Again

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Bmaz just wrote a long post talking about the dilemma John Kiriakou faces as the government and his defense lawyers attempt to get him to accept a plea deal rather than go to trial for leaking the names of people–Thomas Donahue Fletcher and Deuce Martinez–associated with the torture program.

I’d like to look at four more aspects of this case:

  • The timing of this plea deal–reflecting a realization on the part of DOJ that their efforts to shield Fletcher would fail
  • CIA’s demand for a head
  • The improper cession of a special counsel investigation to the US Attorney for Eastern Virginia
  • The ongoing efforts to cover-up torture

The timing of the plea deal

Intelligence Identities Protection Act cases will always be risky to bring. By trying someone for leaking a CIA Agent’s identity, you call more attention to that identity. You risk exposing sources and methods in the course of proving the purportedly covert agent was really covert. And–as the case against Scooter Libby proved–IIPA often requires the testimony of spooks who lie to protect their own secrets.

There is a tremendous irony about this case in that John Kiriakou’s testimony in the Libby case would have gone a long way to prove that Libby knew Valerie Plame was covert when he started leaking her name, but now-Assistant Attorney General Lanny Breuer talked Patrick Fitzgerald out of having Kiriakou testify. Small world.

Bmaz notes that the docket suggests the rush to make a plea deal came after Leonie Brinkema ruled, on October 16, that the government didn’t need to prove Kiriakou intended to damage the country by leaking the names of a bunch of torturers. That ruling effectively made it difficult for Kiriakou to prove he was whistleblowing, by helping lawyers defending those who have been tortured figure out who the torturers were.

But the rush for a plea deal also comes after Matthew Cole and Julie Tate filed initial responses to Kiriakou’s subpoena on October 11. And after the government filed a sealed supplement to their CIPA motion that same day.

While both Cole and Tate argued that if they testified they’d have to reveal their confidential sources, Tate also had this to say in her declaration.

In 2008, my colleagues and I were investigating the CIA’s counterterrorism program now known as Rendition, Detention and Interrogation Program” (the “RDI Program”).

[snip]

I understand that defense counsel has subpoenaed me to testify about the methods I may have used to obtain the identity of CIA officers during 2008 while I was researching the RDI program.

Tate doesn’t say it explicitly, but it’s fairly clear she was able to get the identity of CIA officers involved in the torture program. Her use of the plural suggests she may have been able to get the identity of more than just Thomas Fletcher and Deuce Martinez. And she says she would have to reveal the research methods by which she was able to identify CIA officers who were supposedly covert.

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Selective Prosecution from CIA’s US Attorney

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In its response to John Kiriakou’s claim he is being selectively prosecuted, the government cites this passage from US v. Armstrong.

A selective prosecution claim asks a court to exercise judicial power over a special province of the Executive. The Attorney General and United States Attorneys retain broad discretion to enforce the Nation’s criminal laws . . . . As a result, [t]he presumption of regularity supports their prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. In the ordinary case, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. [my emphasis]

It then describes the standard for presumption of regularity by citing David Passaro’s unsuccessful appeal.

Kiriakou seeks to overturn the presumption of regularity by asserting that the decision to charge him must have arisen from some illegitimate prosecutorial motive, rather than the investigation having followed the facts where they led. However, the defendant fails to offer clear evidence to support his claim, and falls far short of satisfying the high burden required to overcome the presumption of regularity. See United States v. Passero, 577 F.3d 207, 219 (4th Cir. 2009) (“[u]nless a defendant provides ‘clear evidence’ to overcome the presumption that a government prosecutor has acted lawfully and without discrimination-a ‘particularly demanding’ standard-he cannot demonstrate a constitutional violation for selective prosecution.” (citation omitted)). [original spelling error for “Passaro” highlighted]

The entire filing is signed this way:

Compare that signature with this one, from before Kiriakou was indicted.

Or this signature, from the indictment itself.

Monday’s response to Kiriakou’s selective prosecution motion is the first submitted after Patrick Fitzgerald’s last day on Friday. If I’m not mistaken, it is the first filing submitted after the guy selected for his independence from the CIA’s witch hunt on torture departed government. It is, AFAIK, the first public hint at what the new investigative reporting structure and team looks like (which appears to have completely changed, even beyond Fitzgerald’s departure).

And the filing shows that, rather have the prosecution led by a US Attorney assigned as a Special Attorney reporting directly to the Attorney General, the prosecution now includes Neil MacBride, US Attorney for Eastern District of VA. And while the designation of AUSAs Schneider, Lan, and Fayhee as Special Attorneys suggests some kind of special reporting structure (Lan, at least, is in SDNY, not EDVA), the filing shows that the CIA’s US Attorney, the US Attorney’s office for EDVA, now has a role in the prosecution.

Which brings me to the problem with the government’s citations on selective prosecution.

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Why Isn’t Neil MacBride Investigating the Alleged UndieBomb 2.0 Leak?

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I’ll have more general comments about today’s Senate Judiciary Committee oversight scrum and what it says about leak investigations. But I want to note a very small point Eric Holder made.

When trying to explain to the Republicans why it made sense for DC US Attorney Ronald Machen and Maryland US Attorney Rod Rosenstein, he said there parts of the matters under investigation in their districts. In other words, he assigned the US Attorneys according to jurisdiction (or, to be cynical, he just made a big show of having the people who should investigate these matters anyway investigate them).

But consider. The three alleged leaks that might be investigated are:

  • UndieBomb 2.0
  • StuxNet
  • Drone targeting

Now, StuxNet is easy. Rosenstein’s district includes NSA; StuxNet is a NSA project; therefore it’s probably safe to assume he’s investigating that alleged leak.

Then things get confusing. It would make sense to investigate drone targeting in DC, which is where stories portrayed the Terror Tuesday meetings occurring, and therefore to have Machen lead that investigation, and that may well be happening. Though drone targeting is the one alleged leak that public reports haven’t made clear have been included in the scope of the investigations. Let’s just assume that if drone targeting is being investigated, it is being done by Machen.

I’m more confused still about who is investigating the UndieBomb 2.0 alleged leak. There seems to be little doubt that alleged leak is being investigated. But why isn’t being investigated in Eastern District of VA?

CIA thwarted a plot!!! the headlines read, until it became clear that it was really a Saudi investigation and it wasn’t a plot but a sting. Yet the CIA was definitely involved, at least according to all the reporting on the story. And the US Attorney from EDVA–Neil MacBride–would have a jurisdiction over CIA issues that is just as strong as the US Attorney from MD’s jurisdiction over NSA investigations.

These spooky agencies like keeping their investigations close to home.

So why didn’t Holder include MacBride in the dog-and-pony show last week?

There are several possibilities, all curious:

  • FBI has reason to believe the main leak did come from John Brennan’s conference call with Richard Clarke and Fran Fragos Townsend, which he placed from the White House
  • The op wasn’t run out of CIA after all, but was instead liaised with the Saudis through the NSC or State
  • The story never really existed, and the Saudis just fed us the story of an UndieBomb to give an excuse to start bombing insurgents in Yemen

Maybe there’s some entirely different, completely bureaucratically boring explanation. But Holder’s comment about district based selection (he didn’t use the word jurisdiction, though) suggests it should have been logical for MacBride to take the lead on UndieBomb 2.0. But he isn’t.

Why not?