May 25 (Bloomberg) -- U.S. Attorney General Eric Holder participated in the decision to ask for a search warrant for a Fox News reporter’s e-mails as part of a leak investigation, the Justice Department said.
Holder took part in prosecutors’ deliberations over whether to seek the warrant as part of their probe into a 2009 leak on North Korea’s nuclear program, the department said yesterday in a statement. A federal magistrate judge approved the request.
“After extensive deliberations, and after following all applicable laws, regulations and policies, the department sought an appropriately tailored search warrant under the Privacy Protection Act,” the agency said.
Holder and the department are under fire from lawmakers and media organizations for actions taken in two probes of national-security leaks. Fox News and the Associated Press had records seized during investigations into the sources for stories that dealt with intelligence issues.
The U.S. attorney’s office in Washington informed the Associated Press on May 10 that prosecutors had obtained telephone records without first alerting the news service. Investigators in the case are focused on a leak of details about an intelligence operation in Yemen.
Less than two weeks later, it was disclosed in a court filing that the Justice Department, in a separate leak investigation regarding classified information about North Korea, got a warrant to search Fox News reporter James Rosen’s personal e-mail and obtained his telephone records.
Holder recused himself from the AP probe because he was interviewed by the FBI as part of it. He is conducting a review of the guidelines followed by prosecutors in cases that involve journalists, at the request of President Barack Obama.
“Attorney General Holder understands the concerns that have been raised by the media,” the Justice Department said.
Obama said he is “troubled by the possibility that leak investigations may chill the investigative journalism that holds our government accountable,” in a May 23 speech in which he announced the review.
Holder plans to meet with media organizations as part of the review, according to the Justice Department. Obama and Holder have said they support a bipartisan Senate bill designed to protect media source material from government investigations.
That bill, sponsored by Senator Charles Schumer, a New York Democrat, includes an exception in certain national security cases.
Senior officials at Fox, a unit of News Corp., and AP have pushed back against the scope of the department’s investigations.
Roger Ailes, the chairman and chief executive officer of Fox News, sent a memo to employees that questioned “whether the federal government is meeting its constitutional obligation to preserve and protect a free press in the United States.”
Gary B. Pruitt, AP’s president said the department’s “actions are unconstitutional” in a May 19 appearance on CBS Corp.’s “Face the Nation” television program. The news service is a nonprofit cooperative owned by U.S. newspapers and broadcasters.
“We don’t question their right to conduct these sort of investigations, we just think they went about it the wrong way - - so sweeping, so secretively, so abusively and harassingly and overbroad,” Pruitt said. “It is an unconstitutional act.”
Deputy Attorney General James Cole, who took over supervising the AP probe after Holder recused himself, said in a May 14 letter to the news organization that the department doesn’t “take lightly the decision to issue subpoenas” for media telephone records.
Cole said the investigation into national security leaks included more than 550 interviews and the review of tens of thousands of documents before the department sought AP records.
“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,” Cole wrote.
Former Justice Department officials have come to the defense of the decisions made in the case, citing threats to national security and concerns that leaks would chill relationships with allies.
“They were right to take it to the next stage when they still needed more to make a case against the leaker,” former Attorney General William P. Barr, Jamie Gorelick, a former deputy attorney general, and Kenneth Wainstein, former assistant attorney general for national security, said in a May 20 article published in the New York Times.
“If the Justice Department had not done so, it would have defaulted on its obligation to protect the American people,” the three wrote.
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