The Department Of Justice, National Security And Freedom Of The Press

MS. DIANE REHM

10:06:56
Thanks for joining us. I'm Diane Rehm. Atty. Gen. Eric Holder defended the Justice Department seizure of Associated Press phone records. But journalists and First Amendment groups remain outraged. They deemed it an unprecedented use of the Justice Department's investigative power. Joining me in the studio to talk about the Justice Department's actions and whether they were justified to protect national security, attorney and former federal prosecutors Scott Fredericksen and Gabe Rottman of the ACLU.

MS. DIANE REHM

10:07:41
Joining us from a studio in New York City, David Folkenflik of NPR. You're invited as always to be part of the conversation. Give us a call, 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or Twitter. Good morning to all of you.

MR. SCOTT FREDERICKSEN

10:08:11
Good morning.

MR. GABE ROTTMAN

10:08:12
Good morning, Diane.

MR. DAVID FOLKENFLIK

10:08:12
Good morning.

REHM

10:08:13
And, David Folkenflik, before we get into the Justice Department story, fill us in briefly on the latest on the IRS controversy.

FOLKENFLIK

10:08:31
Well, obviously, the IRS has been a source of much concern. Not just Republicans, but many people have been very upset with recent disclosures that focused in in its specialized office. And the Cincinnati branch of the IRS had been looking over not-for-profits that had setup under provision of the IRS code that allowed it to engage in certain kinds of social activity to determine whether or not it was actually more of a political organization.

FOLKENFLIK

10:08:58
They were taking advantage of this code, many of them, to try to avoid having to disclose who their donors were. But the disclosure showed that, of course, as we now know, it appears that some personnel were looking specifically for Tea Party or other certain kinds of perhaps Republican-leaning groups. It very much smacked of a notion that a Democratic administration, somehow a branch of it, was seeking to get involved in a partisan way in assessing what should be a very non-partisan exercise.

FOLKENFLIK

10:09:29
Obviously, the acting IRS commissioner has stepped down under a pressure from Treasury Secretary Lew. There's going to be a whole welter of hearings of the Hill. The House Republicans are demanding to speak to at least five personnel about whether or not they were lied to and misled when question arose earlier about this, particularly during the 2012 election season.

REHM

10:09:48
But apparently, Republicans are not satisfied yet. They feel as though at least one of them said someone ought to go to jail.

FOLKENFLIK

10:10:02
Well, you know, I think House Speaker John Boehner very much said -- in the last 24 hours, he spoke to the notion that, you know, it's not a question of who's going to resign. And I'm slightly paraphrasing, but it's close to it. It's a question, he said, of who's going to go to jail. And certainly, you saw the president in that very brief terse.

FOLKENFLIK

10:10:18
It wasn't really a news conference. It was a statement to the nation although he'll take questions later on today. You know, he made clear that he wanted to be seen addressing this by the public on television and in person. But these questions aren't going to go away simply by virtue of an acting IRS commissioner being dispatched.

REHM

10:10:37
And now explain what led up to the seizure of the AP's phone records.

FOLKENFLIK

10:10:46
Well, it's kind of amazing. It actually stretches back to a story almost exactly a year ago. In the first week of May of last year, the AP reported on something that, you know, you would think is a plus for the administration, you would think is a good news for the nation. An outfit in Yemen, sort of loosely affiliated with al-Qaida, had been plotting to try to blow up a U.S. airliner with an upgraded and a much more refined version of the underwear bomb that was unsuccessful several years ago, and the U.S. foiled this plot.

FOLKENFLIK

10:11:20
And the Associated Press originally held off for a few days while they consulted with administration officials. And when they were told, according to the AP, that there was no imminent national security threat, they decided to publish it. The White House or -- excuse me -- folks in the intelligence and folks in the administration asked the AP to hold off for an extra day to all the administration to announce it.

REHM

10:11:41
Right, right.

FOLKENFLIK

10:11:44
They reported it. And it now appears, almost a year later, on May 10 of this year, they received, at the Associated Press, a letter from the Justice Department, short and sweet, saying essentially, by the way, just so you know, we've asked for all kinds of phone records to figure about how you got the information, how this was forwarded.

REHM

10:12:03
And to you, Gabe Rottman, you believe the Justice Department overreached?

ROTTMAN

10:12:11
Absolutely. And it's important to realize here that the First Amendment and the freedom of the press that it protects is not protecting the press. It's protecting the public. It's protecting our ability and our right to know what the government is doing in our name. And that's all the more important when it comes to national security cases like this where the government has vast authority to make secret its activities.

ROTTMAN

10:12:34
And this particular subpoena is so chilling because of two reasons. First, it's extremely broad. It covered 20 phone lines in offices where more than 100 reporters work. And then in addition to that and perhaps more troubling, the Department of Justice elected to delay notifying the Associated Press that it had issued the subpoena for these telephone records. What that means is the Associated Press was robbed of the ability to go to court to challenge the subpoena.

REHM

10:13:03
So to you, Scott Fredericksen, has the Justice Department specified why it actually targeted the AP's records?

FREDERICKSEN

10:13:17
Well, we don't know yet. There's a lot we don't know yet about this. We do, I think, understand this relates to accusations that there were deliberate leaks for political gain by the administration and -- having to do with the foiling of the plot in Yemen to bomb an airline. The administration appointed a -- went out of its way to appoint the U.S. attorney in -- here in Washington to conduct its investigation. Obviously, it's always a concern when the press information is sought from the press.

FREDERICKSEN

10:13:58
It's a difficult balance. Here we have the balance between, on one hand, the attorney general, the CIA director, the national security advisor, the FBI director. All are adamant in telling us that these were the most serious leaks that put our country and Americans at risk. And also, our allies apparently were furious. We don't know. There's a lot to be determined yet, but that's what led to this now.

REHM

10:14:28
So Atty. Gen. Eric Holder was questioned about this Associated Press case. He said he has recused himself, and that's because he was questioned by the FBI on this. It becomes a very convoluted sort of situation, Gabe.

ROTTMAN

10:14:58
Absolutely. The recusal, I think, is understandable. The plot and the CIA operation would have been highly compartmentalized, so there would have been a small group of people who knew about it. One of whom would have been the attorney general. So the recusal makes sense. What's interesting about the recusal is that the -- that it wasn't in writing, that it was apparently an oral recusal. And if I were the deputy attorney general and I were to launch an investigation of this scope, I would want something more than, you know, just a wink.

REHM

10:15:37
David Folkenflik, Eric Holder said he himself had not actually been the one to order that these phone records be investigated. Who did it?

FOLKENFLIK

10:15:54
It was Deputy Atty. Gen. Cole who did that in his stead. It's pretty interesting. You know, there are two quick things to say, one on each side. You know, for the Justice Department, you know, they're saying the reason this is -- they don't want to say this on the record, but the reason, by all accounts, this is such an important thing is that it exposed a plan that involved a double agent. One of the key players in this bombing plot was a double agent for the West reporting to Western including American intelligence officials.

FOLKENFLIK

10:16:25
And as a result, they were intending to put him back in into Yemen and to keep him exposing folks there. And so they said, look, by virtue of the AP exposing this, it prevents us from doing that. They have to rush him out. They have to rush his family out so they don't get killed. This is a very severe compromise. From the Associated Press point of view, you know, I talked to a lot of media lawyers, including folks from the AP, and they say, look, we are responsive to national security concerns, but they have to come to us and they have to tailor their request.

FOLKENFLIK

10:16:52
And the reason they're supposed to come to us is so we can give stuff voluntarily and to challenge things in court, as Gabe has said. And the second thing is that these -- there were 20 phone lines that were targeted over a period of some weeks. It's a little clear whether it was a full two-month period or not. But part of the amazing element of this is it's not just 20 phone lines.

FOLKENFLIK

10:17:11
Some of those phone lines were the main switchboards for the Washington, D.C. bureau, for the New York City bureau of the Associated Press, even for the corporate switchboard in New York. If you think of how many thousands of phone calls course through those lines, they're picking up all kinds of information that have nothing to do with this concern. And the AP reasonably asks, how does this fit with the department's own guidelines?

FOLKENFLIK

10:17:32
The deputy attorney general had said, look, we're conforming with our own principles. We've conducted many months of investigations on this. Some of which were urged by Republicans at the time. We've interviewed many people. But in this case, it seems like an exceptionally broad net being cast in a way in which the AP couldn't even know to challenge it.

REHM

10:17:52
Gabe.

ROTTMAN

10:17:53
Oh, that's absolutely right. And what's strange about this is the guidelines that govern the issuance of these types of subpoenas. They only allow notice to be delayed when it would seriously impinge upon the investigation. But here, the investigation was public. And in addition to that, there was no -- there's no reason to suspect that any of this evidence would go away. It was in the hands of the telephone companies. So it's unusual, and I think we need to find out exactly why the notice was delayed.

REHM

10:18:27
Gabe Rottman, he's legislative counsel, policy adviser for the Washington Legislative Office of the ACLU. Short break here. We'll be right back.

REHM

10:20:04
And in this hour, we're talking about the Justice Department's disclosure that it seized phone records of the Associated Press without first informing the news agency, which is standard operating procedure. Now, news of this has really garnered attention from First Amendment groups like the ACLU, which feel that the Department of Justice has overstepped its balance.

REHM

10:20:46
Here is an email from Jonathan, who says, "Eric Holder says AP's leak was one of the first worst he's seen, but it's unclear how and why it was so damaging. Similar to WikiLeaks, there's a lot of whining about how leaks threaten national security. But when we see what's actually classified, I'm not sure why most of it was secret." Scott Fredericksen.

FREDERICKSEN

10:21:22
So a few points to the email and I think when we left our discussion. First of all, it appears that the story did compromise the ability of this agent to continue efforts both on behalf of the U.S. and the British and others to find this bomber and to prevent future airlines from being bombed. It did compromise that from everything we're told right now. Second, the AP and the reporters are not the targets here. It's the leakers who leaked this information for...

REHM

10:21:51
The leakers being...

FREDERICKSEN

10:21:52
In the government.

REHM

10:21:53
...in the government at some high level.

FREDERICKSEN

10:21:56
Some high level, which is...

REHM

10:21:57
We don't know where.

FREDERICKSEN

10:21:59
...which is -- and that's -- and an investigation starts by identifying who has the information...

REHM

10:22:03
Right.

FREDERICKSEN

10:22:04
...and going to question them. The DOJ did over 550 interviews. And by the way, this is not a public investigation. This is a criminal grand jury investigation, and that's why DOJ can't tell us more about that. Next, DOJ conducts over 550 investigations, tens of thousands of documents. Then they get the phone numbers. Now, they need to get -- figure out who's calling the reporters.

FREDERICKSEN

10:22:30
And so keep in mind when DOJ subpoenas these records and gets these records, they're not -- they don't get content. This is not a wiretap. They're not looking at emails. They're looking at phone numbers and trying to match that up with the individuals they have identified in the administration with this information. And that's all that's going on right here.

FREDERICKSEN

10:22:48
So was it over-brought? We really won't know. But I can tell you that if you're going to prosecute these leakers who compromise our defense and the safety of our citizens, you've got to a complete job and get all those records for the relevant time period. Or when you prosecute them, the case will be criticized and be subject in a trial to the allegation that they didn't do a thorough job at investigation.

REHM

10:23:14
Gabe Rottman.

ROTTMAN

10:23:16
Well, the facts need to come out. And -- but what has been reported today is that the Associated Press, the -- in terms of compromising the informant -- the Associated Press didn't mention the informant in the initial story. What happened was the Department of Homeland Security, prior to the story coming out, had put out a -- are really saying there were no threats on the anniversary of the Osama bin Laden operation.

ROTTMAN

10:23:42
And after this story came out, it was clearly inconsistent with that announcement. John Brennan, who at the time was the counterterrorism czar, was on a phone call with his predecessors in that position, and he said that the reason why there were no threats is because we had insider control of this threat. And that's what led -- or at least the news reports that are coming out today -- that's what led to the outing of this informant.

ROTTMAN

10:24:10
And the second point is just in terms of the scope of this and the information that you receive. The outgoing phone numbers from 20 phone lines, including the congressional press gallery, disclosed an enormous amount of information, an enormous amount of information that has nothing to do with this investigation. And it's not the -- you can take a very clear and detailed picture of the AP's news gathering activities simply by getting those outgoing phone records.

REHM

10:24:42
Here's another email from Marianne McClean (sp?) in Louisville, Ky. This is for you, David Folkenflik. She says, "Journalists seem to think they act with impunity. They put people's lives at risk and expect not to have to answer for that. Also, think about the Valerie Plame leak that put operations and people at risk as well. Journalists also have to be more responsible." How do you respond, David?

FOLKENFLIK

10:25:23
Well, and I remember you and I talked a fair amount during those Valerie Plame days.

REHM

10:25:25
Indeed.

FOLKENFLIK

10:25:27
You know, there were a lot of lesson out of the -- what's called the Valerie Plame leak case. But, you know, we think of, you know, Judy Miller, the former New York Times reporter, being in a sense in the dock, being challenged not as a target but because she had information that the prosecutors wanted.

FOLKENFLIK

10:25:44
One of the things we learned is that the federal -- the machinery of federal government in the form of the Justice Department tends to get what it wants from the press if it really pushes. But it was frustrated in another case involving Judith Miller, then of The Times, and of Phillip Shannon, involving an outfit in Chicago.

FOLKENFLIK

10:26:01
They wanted information and sources. And the Justice Department, you know, essentially did what it's supposed to do by the guidelines. It told The New York Times that it wanted that information. And that gave The Times chance to hustle into court and to challenge that, and it tied up the Justice Department for months, I believe, over a year in terms of getting access to the information it wanted.

FOLKENFLIK

10:26:20
There is belief among media reporters -- excuse me -- media lawyers that the Justice Department took that as a lesson and said, you know, in certain kinds of cases, we're just not going to ask for permission or give notification, give people the chance. There is a very nebulous provision that allows the Justice Department to decide that it doesn't have the ability to wait and to just go and get it rather than informing and giving people a chance to negotiate or to challenge.

FOLKENFLIK

10:26:45
But, you know, the real role of the press is to challenge authority, is to challenge government, is -- on behalf of their audiences -- to ask the government what it's doing in their name. And if you're unable to do that and to be checked, if you're unable to challenge the decisions of the government to essentially intrude or invade upon the journalistic process, you know, who gets to watch the government?

REHM

10:27:09
But...

FOLKENFLIK

10:27:09
What form does a watchdog take?

REHM

10:27:11
...on the other hand, if by bringing in lawyers, you delay the process, doesn't that also affect national security? Scott.

FREDERICKSEN

10:27:24
Well, I think you're right, Diane. I think David's right. I think DOJ absolutely learned from their prior lesson, and I think the reason they didn't the tell AP ahead of time is they realized they wouldn't get these records. I'm guessing a year would be optimistic. The AP, rightly so, would fight this as it, and their job is to protect the freedom of the press, and they do a great job of it. But they would've tied this up.

FREDERICKSEN

10:27:45
I would say this would go to the Supreme Court. I think it'd be two years. By that time, all the potential leakers would've certainly know -- known what's going on. It would've, in the DOJ's view, compromised the integrity in an investigation. Look, I defend individuals all the time and companies. The fact is the federal government has a grand jury, and the prosecutors can use subpoenas and search warrants. And there's very little we can do, except after the fact, to challenge those things. It's just -- it is a fact of life. But here, that is why DOJ did not tell AP ahead of time.

REHM

10:28:25
Gabe Rottman.

ROTTMAN

10:28:26
Well, this was a public investigation. And it was a public investigation of an alleged wrong that had already happened. So justice isn't supposed to be efficient. Justice is supposed to be deliberative and just. And in order for that to happen, sometimes it takes time. Here, if, in fact, the Department of Justice short circuited the -- its own guidelines, which were put in place to protect the freedom of the press, simply for expediency sake, that's a great concern.

FREDERICKSEN

10:29:01
Well, they didn't short circuit. They didn't go around. There' a specific provision in 50 -- in 20 CFR 5010 that says that they must notify the media in advance of getting the records, unless doing so would pose a substantial threat to the integrity of the investigation. You and I don't know exactly why they did that. But clearly, they did that pursuant to that. If they did that for the wrong reasons, then I suspect and I hope there will be a lot to pay. But for now, we know that's why they did that.

REHM

10:29:32
Is The New York Times also under investigation?

FREDERICKSEN

10:29:38
It is. And this is the other fascinating thing because this was a -- David Sanger of The New York Times wrote this great article, a great book about Stuxnet, the American-Israeli attempt to sabotage the Iranian, you know, nuclear facilities with a computer virus. Well, at the same time that the president appointed Ron Machen, the U.S. attorney here in the District, to investigate this matter, he appointed Ron's counterpart in Maryland to investigate that leak about the Stuxnet virus. So that's still to come.

REHM

10:30:10
OK. And, Gabe, before we open the phones, talk about the shield law.

ROTTMAN

10:30:18
And that's -- absolutely. This case is the prime example of why we need a reporter's shield law, federal reporter's shield law. Already, 40 states have some form of shield law that protects reporters from having to disclose their sources. The president, to his credit, asked Congress to introduce and pass a shield law yesterday. Unfortunately, the version that's going through right now I don't think would have done anything to prevent what happened here with the Associated Press and, in many ways, actually could make the problem worse. So Congress will...

REHM

10:30:52
How so?

ROTTMAN

10:30:53
So, for instance, it actually would provide for the same delay of notice, but actually would allow for indefinite notice under the version that was marked out of committee back in 2009, which my understanding is what's on the table now. So Congress needs to get legislation, comprehensive shield legislation that would prevent what happened here from happening again.

REHM

10:31:19
All right. I'm going to open the phones now, 800-433-8850, first to Port Orange, Fla. Good morning, Lance. You're on the air.

LANCE

10:31:33
Good morning, Diane. You know, first, let me say I'm a huge fan of your show.

REHM

10:31:37
Thank you.

LANCE

10:31:37
I love how you challenge different things and how you bring them to light with the public. So thank you very much for that.

REHM

10:31:43
Thank you. Thank you.

LANCE

10:31:44
So I have a couple of comments that I'd like to say, and then I'll take, you know, the answers off the air. You know, the first thing is I'm -- I have no doubt that, you know, what everybody here wants is, you know, public security, national security. And, you know, it seems to me that there is a fine line of me knowing everything that everybody's doing in every situation and the ability that these agencies have to actually provide the level of security that we need to protect this country in the way we need to, especially in these times.

LANCE

10:32:28
So, you know, I kind of feel like, you know, everybody wants to be involved and be part of the, you know, scrutinizing, you know, different actions that people are taking. I'm wondering, on one aspect, how much of that is politically agenda-driven, you know, and how much of that is truly looking to, you know, make sure that the process is serving the ultimate goal.

REHM

10:32:55
Thanks, Lance. Scott.

FREDERICKSEN

10:32:57
Lance, you're absolutely right. It's always been a tremendous -- tremendously difficult job to balance freedom of the press and national security here, and it always will be. It's the nature of our system. Freedom of the press is a cherished place. We have the most freedom of the press of any place on this planet right now. But we've never had such a challenge to our national security as we have now, and that's why you see even more of the conflict between the two going on right now.

REHM

10:33:23
And you're listening to "The Diane Rehm Show." David Folkenflik, how much of what you have seen and reported on seems to be politically motivated?

FOLKENFLIK

10:33:38
In this instance?

REHM

10:33:39
In this instance.

FOLKENFLIK

10:33:41
I mean, I think there are some deeply held beliefs on both sides, from the reporting that I've done, from the reporting our colleague, Dina Temple-Raston, has done. You know, part of the deal was not just to make sure that double agent wasn't killed. You know, the feds were very concerned because they didn't plan to re-insert him to get this, you know, epically famous or infamous bomb-maker, Ibrahim Asiri.

FOLKENFLIK

10:34:03
And there was -- you know, this was essentially a fairly significant effort of theirs that was disrupted. That said, you know, political pressures come to bear. Republicans have argued for a long time that leaks that the administration want out there are not investigated, and leaks that the administration doesn't want out there are and that there seems to be some sort of funny calibration.

FOLKENFLIK

10:34:26
I think it's exactly right that, you know, national security and First Amendment or press mandates are -- somehow have to be balanced. But in reality, there's a tension. There's an enduring tension between the two of them, and that's not easily resolvable.

FOLKENFLIK

10:34:43
When you add a political element or when you add the sort of motivation of often people trying to spare themselves from embarrassment, people trying to send a message to others in the administration that leaking is not a form of checks and balances that they'll support, particularly in the post-9/11 world, I think you're sending some very strong messages about the flow of information at a time when government is trying to often constrict that despite -- and I think this has to be stressed -- an administration led by a former constitutional law professor, a liberal who, while campaigning for office, stressed the need for transparency. And so I think there are a lot of sort of threads pulling in different directions that we're seeing play out here.

REHM

10:35:22
But at the same time, he has been aggressive in going after leaks.

FREDERICKSEN

10:35:28
Well, he has. He...

FOLKENFLIK

10:35:29
Exceptionally, exceptionally.

FREDERICKSEN

10:35:30
He has. David's right. And he's done -- his administration has instituted more prosecutions and investigations than I think all the presidents combined before him. And so there's a terrific irony that someone like President Obama, liberal, a constitutional law professor, would be -- have this record. But there's a good reason for it, I think, here. For instance, this situation, the administration was being accused of deliberately leaking this for political gain, to make them look tougher on terrorism and such.

FREDERICKSEN

10:36:04
And so I think he did the right thing. He not only started an investigation. He appointed a U.S. attorney to make it even more independent. Now, it's come back and hurt him politically, but the fact is the president has nothing to do with this investigation. The White House can't influence criminal investigation. That'd be a criminal violation.

REHM

10:36:26
Gabe.

ROTTMAN

10:36:27
So two points--the first one is that I agree completely that selective leaking, leaking for political gain, is the worst of all possible worlds. And...

REHM

10:36:38
And that's what the president has been trying to shut down.

ROTTMAN

10:36:43
Well, that is -- it looks like why this is such an aggressive investigation. However, perhaps the worst of all worlds is when you don't actually engage in a targeted and narrowly focused investigation to get at the actual high-level leaker, you go after the press because it's easy. And that's the fundamental problem here because you know that the press has actually disclosed this information, so you know exactly the records to go to. But you need to engage in this dragnet approach in order to sweep them all in. That's the problem. It's not narrowly focused.

REHM

10:37:21
Gabe Rottman of the ACLU. David Folkenflik, he's on the line with us from New York. He's media correspondent for NPR. Scott Fredericksen, former federal prosecutor and independent counsel. We'll take a short break. When we come back, your calls, your comments.

REHM

10:40:04
And before we go back to the phones, Scott, I want to ask you. Has the leaker been found?

FREDERICKSEN

10:40:15
Well, Diane, not yet, to our knowledge, but I think they're probably getting close. So let's talk about how they do this investigation. They determine who -- what's the universe of the individuals who had this knowledge. They gather those documents, their records, their emails. They go interview them. And, by the way, anyone who joins an administration has to sign an agreement that they agree to be interviewed and waived their right not to be interviewed four days in advance. And if they don't, they can be terminated.

FREDERICKSEN

10:40:46
And so if you don't agree to be interviewed, you can get terminated. That tells them a lot. And then they ask the questions and they get your phone's numbers. And, by the way, if that person lies, that's a five-year felony and that's a false statement, and that's oftentimes the heart of what the prosecutions you end up having there. Now they have the phone records. They'll match up the numbers of individuals with the numbers of called in with the reporters, and they'll get very close now to the leakers.

REHM

10:41:16
And just before the break, Gabe Rottman, you said that if you can't find the leak, it's easy to go after the press. How easy is that?

ROTTMAN

10:41:31
It's easy in the sense of you know exactly the questions that you need to ask. Whether you should ask those questions, though, is a question of constitutional scope. The press needs the most expansive amount -- the press needs a great amount of room to do its job because without it, we wouldn't know what the government is doing, especially in these areas. So it's, again, in a -- when I say that it's easy, it's easy because you know exactly where to go. But we were just talking earlier it's hard politically, as this has shown...

REHM

10:42:04
Indeed.

ROTTMAN

10:42:05
...and that's probably a good thing.

REHM

10:42:07
All right. Here's an email saying, "Please remember how aggressively Republicans were in blaming leaks on President Obama himself. A DOJ investigation could not find the leaker after hundreds of interviews so they got more aggressive. If the DOJ did not find an answer, they'd be criticized for not doing enough to source the leaks." Scott.

FREDERICKSEN

10:42:42
Well, that's right. You know, I can tell you as a former prosecutor, when you get on one of these cases, it's -- in many ways, as interesting as it is, it's a lose-lose situation. When you touch the third rail of the press and it just, you know, logs, everyone knows that is immensely unpopular and going to be attacked. If you don't do this right, you're going to be attacked for fumbling the investigation. So it's always a difficult thing to do. And it's harder work because what they had to do here is they have to prove.

FREDERICKSEN

10:43:15
One of the things they have to prove under the regulations internally is that they've exhausted every possible means to get this information in the last means. And the only way to do it is by sending a subpoena. In a standard grandeur investigation, if this is a private company phone record, the prosecutor would send a subpoena out there right away, not a problem. So there are immense difficulties and hurdles and lots of career consequences for these kinds of concentrations for prosecutions.

REHM

10:43:42
All right. Let's take a call from Brunswick, Ga. Good morning, Tim.

TIM

10:43:49
Good morning, Diane. Good morning, David. I had a miscellaneous question I've been thinking about for days now, and it's a kind of a side issue. And it's related to the Boston Marathon bombings because I can recall at least five occasions in the course of the investigation on that bombing when it was early on where I read that this information came from reliable sources with inside information speaking on the basis of anonymity.

TIM

10:44:16
And what immediately bothered me about that was the police sometimes release only partial information in order to help their investigation. And from what I understand, the Boston Police Department and the FBI worked incredibly well with great coordination. And I don't know if any of the information that was released created a problem for the Boston Police Department or the FBI in the course of that investigation, maybe something they didn't want to have released.

TIM

10:44:48
But my question is, now that the dust has settled on the Boston Marathon bombings, does anyone do any kind of a follow-up or review of what happened and, you know, is there a possibility that they may go after somebody who leaked the information that actually impeded a police investigation?

REHM

10:45:08
David Folkenflik.

FOLKENFLIK

10:45:11
To my knowledge, they haven't launched that kind of formal federal inquiry in the kind that we're describing today. Certainly there was, you know, one can think of a number of occasions where major news outlets and local outlets in Boston reported things that turned out just not to be true. They cited what they believed to be reliable or authoritative federal law enforcement and local law enforcement officials. As you say, they were working well together.

FOLKENFLIK

10:45:35
It was also just an incredibly chaotic moment and scene, and it's very difficult in -- as we've learned time and again, in the first minutes and hours, even a couple of days after an event that is as traumatic and as disruptive and horrible as that was -- for us to expect that all people were -- are going to be able to convey perfectly and accurate information. And then the onus is on the press to sift through that pretty darn carefully. I think a lot of times the press failed to do that.

REHM

10:46:01
Here's a tweet, "Should there be any disciplinary actions at Justice or maybe a resignation?" In my opinion -- the tweet says, "In my opinion, this is worse than the IRS scandal." Do you expect resignations, Gabe?

ROTTMAN

10:46:25
I think all of the facts have yet to come out, and so we should reserve judgment until the facts do come out. I will say that this is the most expansive subpoena that I'm aware of in history.

REHM

10:46:41
Scott.

FREDERICKSEN

10:46:42
Well, she's just flat wrong. There's nothing to indicate anyone did anything wrong, just the contrary. They went by the book. They went by the regulations, and that was going on if, after the fact, it shows that there was a fishing expedition. And I don't think that there is. These prosecutors are professionals. They know when they touch this, it's a third rail. It's electrocution to a career, so, no.

FREDERICKSEN

10:47:06
Absolutely, there should be no resignation. The attorney general recused himself. He did that correctly. He transferred authority to the deputy. That's fine. The administration had nothing to do with this once it appointed a U.S. attorney, which is even beyond the call of duty here. So as far as we know, everything has been done by the book here.

REHM

10:47:26
All right. To Cleveland, Ohio. Good morning, Rick.

RICK

10:47:31
I just want to make a comment that -- the insinuation that lines were tapped. Somebody keeps on saying lines and lines, insinuating that lines were tapped when, in fact, as a gentleman said, it was phone records that were -- that was subpoenaed. Also, the media shield law, I believe that law was filibustered by the Republicans, if I'm not correct. Is that correct?

ROTTMAN

10:47:59
So the shield law was ultimately blocked by Republicans. That's right. The -- there was a comprehensive bill that had momentum in late 2009, and the administration initially supported it and then switched its position and requested a broad national security exception as well as something that would require a judge to give deference to the government when it came seeking these records.

REHM

10:48:29
And a number of people are asking about WikiLeaks. Here's an email, "Weren't Republicans pushing for less protection for journalists after the WikiLeaks case? Doesn't the WikiLeaks case demonstrate the complexity of media shield laws when paired with the current AP case?" David.

FOLKENFLIK

10:48:57
I would say complexity is a kind word for it, particularly when tripled with the overlay of the exceptionally divisive partisan political world that we're in. You have Republicans who had initially been adamant for the need of clamping down the, you know, asserting the notion that journalists should have no additional rights of any other American. And, you know, there is a constitutional case to be made for that.

FOLKENFLIK

10:49:21
But also, you know, now saying, you know, why is it that the press' freedom is being impinged upon and earlier, as we teased out, the irony of a liberal constitutional, law professor president urging transparency on the campaign trail and cracking down to an unprecedented level here? I think that you're seeing that this is not a purely ideological position. The other day, I guess yesterday, Media Matters, which is a very liberal media watchdog group, does a lot of intensive research.

FOLKENFLIK

10:49:52
But they -- a sort of sister site of theirs created talking points to defend the Department of Justice and saying, you know, well, we have to be very mindful of national security concerns, which actually we all do have to be mindful of. But it was interesting to see a group that during the Bush years was, you know, adamant about the need for openness and transparency, come up with talking points that were essentially of a partisan nature when the Democrats were the ones who were initiating these things.

REHM

10:50:18
What do you make of that, Gabe?

ROTTMAN

10:50:22
I'm not sure. The -- I think that this case -- there's a lot more to be said about this case, and we're going to find that...

REHM

10:50:32
A lot more to come yet.

ROTTMAN

10:50:34
A lot more to come, yeah. And, you know, as the revelations come, we'll be able to form a more concrete and, you know, and accurate view of the propriety or impropriety of what happened here. Again, though, the breadth of the subpoena and the fact that notice was delayed remain of great concern.

FREDERICKSEN

10:50:55
Well, you know, I would just add that, unfortunately, the administration -- good or bad, I guess according to your political beliefs -- has hit the trifecta here. But, you know, as far as this thing goes, if this is a scandal, it's the smallest scandal. I don't think it's a scandal at all. And I think we'll see it's not, especially when the prosecutions, which I think we'll be coming, start. And I think we all need to take a deep breath.

FREDERICKSEN

10:51:20
You know, people are out there are talking about wiretapping or search -- none of that happened here. You've got people who are accusing the administration of deliberately leaking, and so now they're pretending to have the uppermost, the deep most concern over the First Amendment. And I think there's a lot of -- how can I say -- tongue-in-cheek here going on. Washington has a scandal as a cottage industry, and I think we need to take that at account.

REHM

10:51:50
David...

FOLKENFLIK

10:51:50
Diane, if I might -- I'm sorry. Go ahead.

REHM

10:51:50
Sure.

FOLKENFLIK

10:51:52
Well, I was just going to say it seems to me that there are very valid reasons why people on each side are coming up with the positions that they are as far as we currently know. But we don't know much because the administration, the Department of Justice has kept things inside a black box. But from a journalistic standpoint, you know, you can't be blasé when such a broad request has come in.

FOLKENFLIK

10:52:15
You know, let's say, for argument's sake, there is the question of who leaks something from the Homeland Security or from a national intelligence source and you want to identify who the call went through from. If you do such a broad search, you're also going to get the guy who said, well, and this is -- I'm making this up, this scenario. But what if somebody came up and showed that the deputy director of the CIA have been spending hundreds of thousands of dollars on renaissance antiques in taxpayer money?

FOLKENFLIK

10:52:38
Perhaps that some source -- or excuse me -- perhaps the number for that other source of that other leak would also turn up in that endeavor. It's hard to imagine that, you know, law enforcement authorities would not somehow notice when other kinds of leaks turn up, other kinds of journalistic exchanges happen that might not imperil national security but certainly might not be appropriate from an administration standpoint.

REHM

10:53:00
And you're listening to "The Diane Rehm Show." Scott, you wanted to add something?

FREDERICKSEN

10:53:07
I think David is absolutely right, and I had to chuckle because if I may offer a different example, David Petraeus, you know, the information that ended that poor gentleman's career came up in an inadvertent way as well. So -- but, you know, of course, if this is overbroad, it's got to be dealt with. We don't know yet. It was just phone logs, and it wasn't for the full two months. So I think keep that in mind. We shouldn't forget this. Let's look at it as it develops.

REHM

10:53:37
Gabe.

ROTTMAN

10:53:38
So I just want to jump in and make clear that phone logs -- so the -- there was a caller who mentioned that, you know, that there is an insinuation of this wiretap.

REHM

10:53:48
Yeah.

ROTTMAN

10:53:49
It's not. This is a grand jury...

REHM

10:53:49
Right.

ROTTMAN

10:53:50
...subpoena that is issued at the behest of the government alone, seeking the outgoing calls from these 20 phone lines. Now, that's important because it means that every call, not just the calls that are relevant to this particular case, are captured. And then there is no restriction on what the government can do with those -- with that information. It will go into a database. And if it reveals other information that's relevant to the government, they can use that information.

REHM

10:54:17
So, David Folkenflik, will these new revelations about the AP cause you or perhaps any other journalist to change its own practices in any way?

FOLKENFLIK

10:54:34
Well, let me put it this way. I've talked in recent months -- the last year and a half, really -- with reporters in Washington in particular and other investigative reporters, and at a certain point the conversations keep going back to the TV show "The Wire," where they look with some admiration the way in which certain high-level drug dealers had arranged the system by which he use, you know, these burner phones, phones that you can buy at a 7-Eleven or the corner store and then throw out.

FOLKENFLIK

10:54:57
And they say, you know, there are some reporters who have gotten to the point where they take phones like that. They give them to sources. They take a phone for them self. And after a certain amount of time, they throw the phones out. And those phones aren't registered as belonging to them per se. And the hope is you can elude detection. These are reporters who, by the way, don't see them selves doing anything illegal.

FOLKENFLIK

10:55:15
They see themselves as trying to, you know, be a watchdog on government in all its forms, often involved in some pretty sensitive national security matters, while their institutions and the reporters themselves say they are very mindful of genuine and legitimate national security concerns. But to me, to look to a TV show about drug dealers as a way of thinking about how to circumvent subpoenas like this, say, that reporters are taking this with, you know, with a sense of humor but nonetheless pretty seriously.

REHM

10:55:41
That's very interesting. Scott.

FREDERICKSEN

10:55:44
Well, it's fascinating. I mean, I've heard that, too. And if I was counseling media organization reporters, I would counsel them that they need to react to this. And...

REHM

10:55:52
React how?

FREDERICKSEN

10:55:54
Well, I'd say be careful. If you're talking to sources that can be compromise, I wouldn't be on a phone or...

REHM

10:56:00
You would not be on a phone.

FREDERICKSEN

10:56:01
I would not be on a phone. And I wouldn't be using any electronic means of communication. You know, the FBI and the department is going to propose updating some of our electronic privacy laws. One of the provisions is to require providers, like Google or Yahoo or something, to have a provision in there that if a subpoena comes in, they have the ability to record or tap that information. I mean, that is the reality now. Our freedom is as much challenged by the private sector as by the government.

REHM

10:56:35
Gabe, do you think anybody at the Department of Justice should be fired over this incident?

ROTTMAN

10:56:46
Again, we have to wait for all the facts to come out before we address that question. But if I could, let me just pivot and, you know, there is generally a sense that the disclosure of unauthorized -- the unauthorized disclosure of classified information is a bad thing. But it's important to note that without these types of leaks, we wouldn't know about Abu Ghraib, and we wouldn't know about things like the CIA black sites. And that's a crucial point.

REHM

10:57:12
Gabe Rottman of the ACLU, Scott Fredericksen -- he's with the law firm Foley & Lardner. He's a former federal prosecutor, independent counsel -- and David Folkenflik, media correspondent for NPR, I thank you all. We'll keep an eye on this space.

FOLKENFLIK

10:57:38
Thank you, Diane.

ROTTMAN

10:57:39
Thank you.

REHM

10:57:40
And thanks for listening, all. I'm Diane Rehm.
Transcripts of WAMU programs are available for personal use. Transcripts are provided "As Is" without warranties of any kind, either express or implied. WAMU does not warrant that the transcript is error-free. For all WAMU programs, the broadcast audio should be considered the authoritative version. Transcripts are owned by WAMU 88.5 FM American University Radio and are protected by laws in both the United States and international law. You may not sell or modify transcripts or reproduce, display, distribute, or otherwise use the transcript, in whole or in part, in any way for any public or commercial purpose without the express written permission of WAMU. All requests for uses beyond personal and noncommercial use should be referred to (202) 885-1200.

Our address has changed!

The Diane Rehm Show is produced by member-supported WAMU 88.5 in Washington DC.