Government's own regs were violated by AP records subpoena

[Yo_Mama]

Last edited Tue May 14, 2013, 02:59 PM - Edit history (1)

Update: Okay, this is my worst effing nightmare, because now Holder is saying he recused himself from the investigation and at least implying that he had nothing to do with it.
http://www.bloomberg.com/news/2013-05-14/holder-said-to-recuse-himself-from-journalist-phone-records-case.html
But if that is true, then the DOJ reg published below has indeed been violated:
End update.

This is the link to the reg:
http://cfr.vlex.com/vid/regard-toll-interrogation-indictment-19679461
It dates back to 1980, btw.

Notice is required first unless the investigation is threatened. Negotiations are to be engaged in first, unless the negotiation is determined to be a threat to the integrity of the investigation. It is hard to support that in this case. The AG has to approve the subpoena. When notice is not given first, it must be given within 45 days, unless the AG personally authorizes another 45 days. The subpoena has to be limited.

The AP records grab appears to be a violation of longstanding internal government regs intended to protect freedom of the press.

The text:

50.10 - Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll records of members of the news media, and the interrogation, indictment, or arrest of, members of the news media.

Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues. This policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function. In balancing the concern that the Department of Justice has for the work of the news media and the Department's obligation to the fair administration of justice, the following guidelines shall be adhered to by all members of the Department in all cases:

(a) In determining whether to request issuance of a subpoena to a member of the news media, or for telephone toll records of any member of the news media, the approach in every case must be to strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice.

(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.

(c) Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated. These negotiations should attempt to accommodate the interests of the trial or grand jury with the interests of the media. Where the nature of the investigation permits, the government should make clear what its needs are in a particular case as well as its willingness to respond to particular problems of the 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.

(e) No subpoena may be issued to any member of the news media or for the telephone toll records of any member of the news media without the express authorization of the Attorney General: Provided, That, if a member of the news media with whom negotiations are conducted under paragraph (c) of this section expressly agrees to provide the material sought, and if that material has already been published or broadcast, the United States Attorney or the responsible Assistant Attorney General, after having been personally satisfied that the requirements of this section have been met, may authorize issuance of the subpoena and shall thereafter submit to the Office of Public Affairs a report detailing the circumstances surrounding the issuance of the subpoena.

(f) In requesting the Attorney General's authorization for a subpoena to a member of the news media, the following principles will apply:

(1) In criminal cases, there should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation?particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.

(2) In civil cases there should be reasonable grounds, based on nonmedia sources, to believe that the information sought is essential to the successful completion of the litigation in a case of substantial importance. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.

(3) The government should have unsuccessfully attempted to obtain the information from alternative nonmedia sources.

(4) The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.

(5) Even subpoena authorization requests for publicly disclosed information should be treated with care to avoid claims of harassment.

(6) Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents.

(g) In requesting the Attorney General's authorization for a subpoena for the telephone toll records of members of the news media, the following principles will apply:

(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. In addition, prior to seeking the Attorney General's authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.

(2) When there have been negotiations with a member of the news media whose telephone toll records are to be subpoenaed, the member shall be given reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it.

(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.

(4) Any information obtained as a result of a subpoena issued for telephone toll records shall be closely held so as to prevent disclosure of the information to unauthorized persons or for improper purposes.

(h) No member of the Department shall subject a member of the news media to questioning as to any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media, without the express authority of the Attorney General: Provided, however, That where exigent circumstances preclude prior approval, the requirements of paragraph (l) of this section shall be observed.

(i) A member of the Department shall secure the express authority of the Attorney General before a warrant for an arrest is sought, and whenever possible before an arrest not requiring a warrant, of a member of the news media for any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media.

(j) No member of the Department shall present information to a grand jury seeking a bill of indictment, or file an information, against a member of the news media for any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media, without the express authority of the Attorney General.

(k) In requesting the Attorney General's authorization to question, to arrest or to seek an arrest warrant for, or to present information to a grand jury seeking a bill of indictment or to file an information against, a member of the news media for an offense which he is suspected of having committed during the course of, or arising out of, the coverage or investigation of a news story, or committed while engaged in the performance of his official duties as a member of the news media, a member of the Department shall state all facts necessary for determination of the issues by the Attorney General. A copy of the request shall be sent to the Director of Public Affairs.

(l) When an arrest or questioning of a member of the news media is necessary before prior authorization of the Attorney General can be obtained, notification of the arrest or questioning, the circumstances demonstrating that an exception to the requirement of prior authorization existed, and a statement containing the information that would have been given in requesting prior authorization, shall be communicated immediately to the Attorney General and to the Director of Public Affairs.

(m) In light of the intent of this section to protect freedom of the press, news gathering functions, and news media sources, this policy statement does not apply to demands for purely commercial or financial information unrelated to the news gathering function.

(n) Failure to obtain the prior approval of the Attorney General may constitute grounds for an administrative reprimand or other appropriate disciplinary action. The principles set forth in this section are not intended to create or recognize any legally enforceable right in any person.

[Order No. 916-80, 45 FR 76436, Nov. 19, 1980]

[wercal]

1. Question - Was there a subpoeana?

[Yo_Mama]

2. AP was told there was in the letter

But they were just notified.

The subpoena was not to AP, but to the phone cos.

[bigtree]

4. have you seen the actual subpoena?

. . . has AP released it? If not, why not?

[Yo_Mama]

7. AP didn't get the subpoena

AP only just got a letter saying that the subpoena had been issued, apparently a while ago.

[cali]

24. You don't understand how FISA works. that is clear.

they don't get a subpoena. sheesh.

[wercal]

38. FISA

Why on earth would FISA have anything to do with this. The 'F' stands for Foreign....this was domestic wire tapping of domestic phone calls, subject to the 4th Ammendment.

[Yo_Mama]

6. Also a judge does not grant the subpoena

The AG (Holder, right now) does.

If he didn't, there's a huge explosion pending.

However the reg allows the DOJ to authorize the subpoena and send it out demanding the info, but it's not supposed to be done broadly, secretly, etc. Almost always the DOJ regs require negotiation first and notice first. If notice is not given first (allowed only when the integrity of the investigation would be threatened), it has to be given within 45 days, unless the AG approves another 45 day stay.

Since the subpoena was for prior records, it is just about impossible to support the claim that the integrity of the investigation would have been violated. Unless the subpoena was issued during the period in question, in which case the timely subsequent notice was violated.

The prior notice allows the news organization to hire a lawyer and seek judicial review, which is an inherent protection against misuse.

[Tommy_Carcetti]

18. Subpoena? Subpoena? Fucking amateurs.

Bush administration would have just hacked into the phone company directly without telling anyone, no subpoena, no warrant.

[Yo_Mama]

20. In 2007 that went back to FISA court review

Due to the outcry, btw.
http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy
However even in that case, it wasn't done for domestic phone calls. They were tapping directly from the international gateways. This is worse than what the Bush administration ever openly did, as far as I can tell.

However DOJ regs do allow DOJ to issue a subpoena for these records, but not the way it was done.

And Holder just denied that he was involved, which means that these regs were violated.

[AngryAmish]

3. If this regulation is violated, is it a crime?

??

[Yo_Mama]

17. The regulation doesn't grant legal rights - that's right at the end

But the regulation was written so as not to offend against constitutional rights.

I don't know any case where a judge has ever allowed a broad subpoena like this to be issued against a news organization, because of the pesky little clause about "freedom of the press" in the First Amendment. One strongly suspects that notice was not given because that would have allowed AP to take it to court and get the subpoena quashed.

I think the regulation itself is very reasonable and very protective against potential abuses, but I don't see any way in which it could have been followed in this case. Therefore, there may be a potential violation of the Constitution involved here. Which is a crime.

It's not been litigated, because it's never been openly done.

Note that people who strongly support Obama should strongly support an investigation here. This is not going to go away. I can't imagine that AP will not sue. This is one of those things that crosses all party boundaries, and is a threat to the workings of our entire system.

[CJCRANE]

5. "Notice is required first unless the investigation is threatened".

I'm no lawyer but that exception seems pretty clear.

[Yo_Mama]

9. Yeah, but is that supportable?

If the subpoena was for records already created, it is not, because no information would be changed by giving notice of the subpoena.

If the subpoena was issued during the period for which the records were requested, then the government has an argument, but then the timely subsequent notice was violated. Also there is a requirement in the regs that FIRST all alternative measures must be exhausted, so it is questionable as to whether the government could have complied with that provision if the subpoena was issued during that period.

Also the subpoena appears overbroad.

Facially, it appears the government decided not to comply with its own regulations as I published above. It looks as if they decided to do this and not give notice because they knew a judge would quash it, and that they issued a CYA letter somewhat later since a grand jury is hearing a case derived from this issue.

It is not unreasonable to expect a full Congressional investigation as to what happened. A law change probably will be necessary to prevent this from happening again.

Most subpoenas come from a court, but this one would not have.

[Luminous Animal]

31. Excellent points.

[MNBrewer]

8. Obama's pres, it's ok

[Yo_Mama]

10. Even if one were to believe that proposition,

Obama will not always be the president. People need to think of the president they have disliked the most in their lifetimes, and then consider that president doing this.

[MNBrewer]

11. I completely agree

I can understand why Republicans thought such concentration of power in the Executive would be good when they were still under the illusion that they would have a "permanent Republican majority". But for the Democrats to fall for the same scam is pretty disappointing.

[randome]

12. So without knowing the details, you're going to assume that none of the exceptions applied.

Why not wait for more information? Time and time again, DU goes through these spasms of worry only to learn that things were not what they seemed at first glance.

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[Yo_Mama]

14. It appears that all of the requirements could NOT have been met

There is no need to wait for more information.

I have already explained why it's unreasonable to presume that the regs were followed. If the subpoena was for past phone records, how could the required notice be omitted on the grounds that it would affect the integrity of the investigation? And if the subpoena was not for past phone records, then it appears that the timely notice was not given.

We will not get more information unless we agitate for an investigation!

[randome]

19. Without knowing the exact details of what the DOJ needed to know, no one can say...

...with any certainty whether the regulations were followed or not. Not at this point.

I can easily imagine a scenario where past records might jeopardize the identity of an infiltrator. Or might, in fact, identify someone who is actively gathering national security secrets.

Without details, I think it's too soon to call for heads to roll.

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[Yo_Mama]

21. Oh yes one can. Holder just denied he authorized it.

The regs were violated.
http://www.bloomberg.com/news/2013-05-14/holder-said-to-recuse-himself-from-journalist-phone-records-case.html

I have posted the reg, and an explanation as to why it appears that the reg could not have been complied with, but now Holder's apparently saying he didn't authorize the subpoena. But under the reg he must authorize it.

There is cause for a full investigation and don't think that I am the only person in the US who reads and comprehends this shit.

It is better for the administration if they launch their own internal investigation.

[MetasticTwine]

23. The Deputy Attorney General was named as Acting Attorney General for this investigation

Holder says so himself.

Whenever the Attorney General recuses himself for an investigation, whomsoever is named Acting Attorney General for the investigation is vested with all the powers and responsibilities of the Attorney General with regards to that investigation.

[hrmjustin]

25. Welcome to DU my friend!

[randome]

28. Yeah, that's what I would have assumed. Geeze, that was easy.

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[Yo_Mama]

30. But the entire point of having the AG sign off on such a subpoena

is so that DOJ can hold itself accountable.

The subpoena review is not related to a particular investigation. It is a generic function.

However, I am sure that this is Holder's position. And even if you grant that logic, we still have the problems of the notice/specificity issues.

[randome]

33. If Holder was out with the flu, the acting Attorney General IS the DOJ.

I'm sure that would apply in this case, too.

The notice and specificity issues are worth looking into but I don't see them as all that egregious, either, especially since there are exceptions that, for all we know, were met.

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[MetasticTwine]

36. But the ACTING Attorney General would have had to sign off on such a subpoena.

By your logic, should an attorney General ever pass away suddenly, or become completely incapacitated, no such subpoenas could ever be issued at the whims of a single US Senator who can indefinitely block the nomination of any Attorney General.

The subpoenas were specific as to timing and and phone numbers (20 specific numbers and a timeframe to match when the leak could have occurred). We certainly know that much at this point.

Furthermore, we know for a fact the investigation was over a leak from somewhere inside the government where a CIA asset inside the Yemeni branch of Al Queda gave us information leading to the thwarting of a planned terrorist attack. Why, the GOP in Congress was so up in arms about the leak that they demanded this investigation. It's not difficult to see that 1) the asset's identity would be at risk over the investigation and 2) the leaker could be tipped off as to the investigation had it been through a public notification process. Either would place the investigation in jeopardy.

[Marrah_G]

13. I have a real problem with Gov spying on reporters

It's not right. Not if a Dem admin does it. Not if a Rep admin does it.

It's wrong.

wrong wrong wrong.

[Yo_Mama]

15. It's dangerous, dangerous, dangerous

Which is why DOJ developed these regs in the first place.

[Marrah_G]

16. Yes it is!

[ProSense]

22. That

"Government's own regs were violated by AP records subpoena"

...is not a crime. In fact, this from the OP:

(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. In addition, prior to seeking the Attorney General's authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.

...was stated in the AP report:

The Justice Department lays out strict rules for efforts to get phone records from news organizations. A subpoena can be considered only after "all reasonable attempts" have been made to get the same information from other sources, the rules say. It was unclear what other steps, in total, the Justice Department might have taken to get information in the case.

A subpoena to the media must be "as narrowly drawn as possible" and "should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period," according to the rules.

http://www.npr.org/templates/story/story.php?storyId=183700073

That doesn't tell us much, and this simply states the rules without any insights about the actual subpoena.

As Michael Isikoff stated:

"they're regulations, they're not laws. and this is a criminal investigation and they do have the absolute legal authority to do this any way they want."

http://www.democraticunderground.com/10022840092

[Yo_Mama]

26. It is not a crime but it raises suspicions of constitutional violations which are crimes.

Freedom of the press is one of the components of the First Amendment. The reason why these regs exist in the first place is to draw a bright line so the DOJ can do what it sometimes must without running afoul of constitutional press protections.

I think anyone reading the 1980 reg would agree that it is reasonable. It was not followed in this case, and the information sought was very broad.

Do you believe that a court would have issued that subpoena? Do you believe that a court SHOULD have issued that subpoena?

[ProSense]

29. First of all,

Freedom of the press is one of the components of the First Amendment. The reason why these regs exist in the first place is to draw a bright line so the DOJ can do what it sometimes must without running afoul of constitutional press protections.

I think anyone reading the 1980 reg would agree that it is reasonable. It was not followed in this case, and the information sought was very broad.

Do you believe that a court would have issued that subpoena? Do you believe that a court SHOULD have issued that subpoena?

...you are approaching this as if the press was the target. It was not. Secondly, do you have the subpoena and know all the facts about how it was issued?

There is nothing wrong with issuing a subpoena in an investigation. In fact, it's the correct method for obtaining information.

[Yo_Mama]

34. That's correct - a subpoena is the correct method

And DOJ has regs for itself on such matters, and it appears it has not followed them.

You don't want to hear it, but this will not go away, and the best thing for Dems to do is to move for a quick investigation.

If this sort of thing becomes common, it will have a very chilling effect on journalism, and this must end. I am sure GOP strategists hope that AP is forced to go to court over it so that in the next elections it is still a current issue.

The fact that AP was not directly a target has nothing to do with the type of interference with its press function represented by such a broad subpoena. Whistleblowers without the press have no outlet. By definition reporters will be talking to whistleblowers. When you subpoena call records from 20 lines (business and personal) for two months for a press organization (including the main switchboard), it is very likely that press functions will be impaired.

Confidentiality of press communications is a very material part of freedom of the press.

Do you believe that such a subpoena would have been issued by a court?

[ProSense]

35. Wait,

That's correct - a subpoena is the correct method...And DOJ has regs for itself on such matters, and it appears it has not followed them. Confidentiality of press communications is a very material part of freedom of the press...Do you believe that such a subpoena would have been issued by a court?

...you're talking in circles. Established: A subpoena was issued. The DOJ had the legal authority to do so in a criminal investigation. The AP wasn't the target. You do not have all the facts about the subpoena.

[cali]

27. Thank you, YM, for all the information you're providing.

[Tierra_y_Libertad]

32. But, you must realize that "National Security" trumps the constitution. See Nixon for precedents.

[WillyT]

37. K & R !!! - THANK YOU !!!