WASHINGTON — Attorney General Eric Holder said on Tuesday he did not make the controversial decision to secretly seize telephone records of The Associated Press but defended his department’s actions in the investigation of what he called a “very, very serious leak.”
The decision to seek phone records of one of the world’s largest news-gathering organizations was made by Deputy Attorney General Jim Cole, Holder said.
Holder, speaking at a press conference, said he recused himself from the matter to avoid a potential conflict of interest because he was interviewed by the FBI as part of the same leak investigation that targeted the AP records.
That seizure, denounced by critics as a gross intrusion into freedom of the press, has created an uproar in Washington and led to questions over how the Obama administration is balancing the need for national security with privacy rights.
Combined with a separate furor over the Internal Revenue Service’s targeting of conservative political groups for extra scrutiny, it also is stoking fears of excessive government intrusion under President Barack Obama.
The White House has said it had no advance knowledge of the IRS or Justice Department actions.
Lawmakers from both parties on Tuesday criticized the Justice Department’s decision to obtain the AP records. Senate Majority Leader Harry Reid called the action “inexcusable.”
But in a letter to AP President Gary Pruitt, Cole on Tuesday defended the department’s unusual action against a member of the media, saying it was a necessary step in the year-old criminal probe of leaks of classified information.
A law enforcement official said the probe is related to information in a May 7, 2012, AP story about an operation, conducted by the CIA and allied intelligence agencies, that stopped a Yemen-based al-Qaida plot to detonate a bomb on an airplane headed for the United States.
Cole declined Pruitt’s request to return the records.
“We strive in every case to strike the proper balance between the public’s interest in the free flow of information and the public’s interest in the protection of national security and effective enforcement of our laws,” he wrote. “We believe we have done so in this matter.”
Pruitt, in a statement responding to Cole’s letter, said “it does not adequately address our concerns,” which include that the subpoena’s scope was “overbroad under the law” and that the AP was not notified in advance.
The AP story at issue, he said, contradicted White House assertions that there was no credible threat to the American people in May 2012 around the first anniversary of the killing of al-Qaida chief Osama bin Laden.
Cole disclosed that investigators conducted more than 550 interviews and reviewed tens of thousands of documents in the probe before seizing the toll records of AP phone calls.
Holder said he did not have specific knowledge about the formulation of the subpoena for the AP records, but does not believe the Justice Department did anything wrong.
“This was … a very, very serious leak,” he said. “I have been a prosecutor since 1976 and I have to say that this is among, if not the most serious, it is within the top two or three most serious leaks that I have ever seen,” Holder said, speaking at an unrelated press conference on Medicare fraud.
“It put the American people at risk, and that is not hyperbole,” he said. “And trying to determine who was responsible for that, I think, required very aggressive action.”
In June 2012, Holder ordered two U.S. attorneys to pursue separate leak investigations, the subject of which he did not identify.
The probes followed calls by Congress to crack down on national security leaks after the Associated Press report on the Yemen plot and a New York Times report on details of the Stuxnet computer virus that sabotaged Iran’s nuclear centrifuges.
The AP said it was informed last Friday that the Justice Department had gathered records for more than 20 phone lines assigned to the news agency and its reporters, covering April and May of last year.
Pruitt, in a letter to Holder on Monday, called the seizure a “massive and unprecedented intrusion” into news-gathering operations.
Five reporters and an editor involved in the AP story about the Yemen plot were among those whose phone records were obtained by the government, the AP said.
Reuters reported that on May 7, 2012, Obama’s top White House counterterrorism adviser John Brennan, who is now CIA director, held a small, private teleconference to brief former counterterrorism advisers who are TV commentators and told them the plot was never a threat to U.S. public safety because Washington had “inside control” over it.
One of the former officials on the call later said on network TV that the U.S. government had indicated implicitly that “they had somebody on the inside who wasn’t going to let it happen.”
U.S. and European authorities later acknowledged the alleged plot had been discovered because an informant had been planted inside the conspiracy by MI5, Britain’s principal counterterrorism agency.
The original AP story made no mention of an undercover informant or “control” over the operation by the United States or its allies.
Brennan acknowledged during his Senate confirmation hearing that he had been interviewed by prosecutors in connection with two leak inquiries, including the Yemen probe. He told Congress that he had not leaked any classified information.
Several prominent Republicans last year called for a crackdown on leaks, with some suggesting the White House was orchestrating them to burnish Obama’s security credentials and chances for re-election in November.
Sen. Orrin Hatch, a Republican on the Judiciary Committee, when asked whether Republicans had the type of action taken against the AP in mind, said: “No, I don’t think anybody wants to take away the freedom of the press. … You can’t be free if you’ve got government monitoring your calls, and your interviews. How is that a free press?”
Reid, the Senate’s top Democrat, told reporters at the Capitol, “I don’t know who did it, why it was done, but it’s inexcusable, and there is no way to justify this.”
The Obama administration has been aggressive in combating national security leaks, conducting at least a half-dozen prosecutions — more than under all other previous presidents combined, according to tallies by multiple news organizations.
Mark Corallo, a Justice Department spokesman between 2002 and 2005, said that during his tenure, the rule was that any request from any part of the Justice Department for the issuing of subpoenas against a news organization had to be submitted to his office for approval.
Corallo said that of “dozens” of requests from prosecutors for subpoenas directed against news organizations, he approved one during his tenure.
White House spokesman Jay Carney said that President Barack Obama “believes that the press as a rule needs to have an unfettered ability to pursue investigative journalism.”
“He is also committed, as president and as a citizen, to the proposition that we cannot allow classified information, that can do harm to our national security interests or do harm to individuals, to be leaked,” Carney said.
“Certainly there have been lots of presidents upset about leaks and there have been a number of chief executives who have gone to rather extraordinary lengths,” said Darrell West, director of Governance Studies at the Brookings Institution think tank.
“But I think people believed that Obama was more committed to civil liberties so it’s actually more shocking that he did it rather that someone like [George W.] Bush and [Richard] Nixon because people had higher expectations of him,” he said.