(NYTIMES) 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.
“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.”
In a statement in response, The A.P.’s president and chief executive, Gary Pruitt, disputed that the publication of the article endangered security.
“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.
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.
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.”
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.
“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.
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