Did the Government “Know Who Journalists Are Talking To” in the Kiriakou Investigation?

As I laid out in this post, the complaint in the Jon Kiriakou case shows that the Patrick Fitzgerald-led investigative team could have found Kiriakou as the ultimate source for some Gitmo detainee lawyers’ information on two people associated with the torture program without accessing journalists’ communications directly (though the FBI has the contents two of Kiriakou’s email accounts, which likely contain a great deal of communication with journalists).

The sole possible exceptions are two emails between Journalist A and the Gitmo detainee lawyers’ investigator:

At 11:31 a.m. on August 19, 2008, approximately two hours after KIRIAKOU disclosed Covert Officer A’s last name to Journalist A, Journalist A sent an email to the defense investigator referenced above that contained Covert Officer
A’s full name in the subject line. The email further stated: “His name is [first and last name of Covert Officer A].” At 1:35 p.m., Journalist A sent a final email to the defense investigator in which he stated: “my guy came through with his memory.” Neither Journalist A nor any other journalist to my knowledge has published the name of Covert Officer A.

[snip]

For example, in an email dated April 10, 2008, Journalist A provided the defense investigator with Officer B’s home phone number.

The implication in the complaint is that the FBI got these emails from the investigator. But unlike Kiriakou’s emails, which it explains were, “recovered from search warrants served on two email accounts associated” with Kiriakou, the complaint doesn’t explain how and from whom the FBI obtained the emails between Journalist A and the defense team investigator.

Nevertheless, the complaint provides fairly innocuous possible explanations for how the FBI got a whole lot of emails involving journalists for this investigation. So maybe we have nothing to worry about.

Or maybe we do. It is also possible the government collected all communications within two degrees of separation from the defense investigator–thereby exposing a wide range of journalists’ sources–and we’d never know it.

That’s true for two reasons.

First, because this investigation is the first known leak investigation that has extended into the period–post October 15, 2011–during which the new Domestic Investigation and Operations Guide was in effect. The new DIOG made it a lot easier to use National Security Letters to get the contact information of journalists in investigations, like this one, with a national security nexus.

[T]he new DIOG seems to make it a lot easier to get news media contact records in national security investigations. A heavily-redacted section (PDF 166) suggests that in investigations with a national security nexus (so international terrorism or espionage, as many leak cases have been treated) DOJ need not comply with existing restrictionsrequiring Attorney General approval before getting the phone records of a journalist. The reason? Because NSLs aren’t subpoenas, and that restriction only applies to subpoenas.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

So DOJ can use NSLs–with no court oversight–to get journalists’ call (and email) records rather than actually getting a subpoena.

The section includes four different approval requirement scenarios for issuing such NSLs, almost all of which are redacted. Though one only partly redacted passage makes it clear there are some circumstances where the approval process is the same as for anyone else DOJ wants to get an NSL on:

If the NSL is seeking telephone toll records of an individual who is a member of the news media or news organization [2 lines redacted] there are no additional approval requirements other than those set out in DIOG Section 18.6.6.1.3 [half line redacted]

The authority to get NSLs is troubling for a number of reasons. DOJ Inspector General Glen Fine caught FBI using NSLs to get at least two journalists’ contacts in the past (as well as another journalists’ contacts via subpoena; that journalist has never been informed). As James Risen noted in his Jeffrey Sterling subpoena affidavit, there is reason to believe the government, at some point, got Risen’s contacts.

Around the same time that the Government was making public statements about potentially prosecuting journalists, Brian Ross and Richard Esposito of ABC News reported on May 15, 2006, that senior federal law enforcement officials had informed them that the government was tracking the phone numbers of journalists without the journalists’ knowledge as part of an effort to root out the journalists’ confidential sources. According to the article, the journalists’ phones were not being “tapped,” but the government was tracking the incoming and outgoing numbers called and received on the journalists’ phones. The story stated that the government was examining the phone calls and contacts of journalists from ABC News, The New York Times, and the Washington Post as part of a “widespread CIA leak investigation.” I was mentioned by name as one of the reporters whose work the government was looking into.

[snip]

I have reason to believe that the story by Brian Ross and Richard Esposito is true. Since that story was published, I have learned from an individual who testified before a grand jury in this District that was examining my reporting about the domestic wiretapping program that the Government had shown this individual copies of telephone records relating to calls made to and from me.

Also note: Ross and Esposito are, themselves, very possible candidates to be Journalist A in the Kiriakou complaint, given that Kiriakou had a contract with ABC during the period he is alleged to have leaked to Journalist A.

There is plenty of reason to believe the government has collected key national security reporters’ contacts in the past; the new DIOG allows them to do so much more freely.

Then there’s the other detail I noted yesterday. The Air Force Office of Special Investigations played some “significant” role in this investigation.

Mr. Fitzgerald announced the charges with James W. McJunkin, Assistant Director in Charge of the Washington Field Office of the FBI, and they thanked the CIA for its very substantial assistance in the investigation, as well as the Air Force Office of Special Investigations for its significant assistance. [my emphasis]

While AFOSI’s involvement might be that, simply, of a counterintelligence function tied to a Special Access Program–the torture program–they also have the cyber capabilities to track communications in ways that may exist entirely outside of quaint guidelines like phone toll records and NSLs.

Last summer, not long after James Risen successfully limited the subpoena in the Jeffrey Sterling case, Lucy Dalglish described an Aspen Institute meeting between national security reporters, lawyers, congressional staffers, and national security officials. As Dalglish describes, a national security representative at the meeting boasted that the government no longer needs subpoenas.

After reading Mayer’s article, I was not surprised when one national security representative at Wye River told us (rather gloatingly) on our last day: “We’re not going to subpoena reporters in the future. We don’t need to. We know who you’re talking to.”

Some national security rep bragged, last summer, that the government already knew who national security journalists were talking to. Since then, the FBI has gotten more formal authority to find out, without telling journalists.

Did the government use the CIA’s attempt to intimidate now-exonerated detainee lawyers as an excuse to find out who national security reporters are talking to?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

17 replies
  1. klynn says:

    Like I wrote a few posts back, this is amazing material for a book.

    Disturbing material as well.

    Government does something wrong, it retro-classifies it to cover their wrongdoing and then goes after investigative journalists without a subpoena.

  2. emptywheel says:

    @William Ockham: No. Not at all. But the people between him and the starting point of the investigation–the KSM team–all are. And I suspect that there are a lot more really really important national security journalists who spoke to KSM’s team.

  3. Jim White says:

    One thing I keep going back to in the whole Kiriakou saga is that when he first popped up and started mouthing off in the press, my immediate impression was that he wasn’t “former” CIA, but that he had been sent out on a disinformation mission to seriously muddy the water on who did what to whom and when. That has remained a pretty strongly held belief for me, so I’m really struggling to get my mind around the government now going after him.

    On a separate issue, I see what you are saying about how the government is going about rooting through journalists’ communications, but this case also seems to touch on communications among prisoners’ counsel and the counsel’s investigators. I keep wondering on that point if Gitmo itself is considered foreign for purposes of FISA and monitoring communications back to the mainland.

  4. emptywheel says:

    @Jim White: Gitmo lawyers overseas (in England) have long been wiretapped. And remember the whole issue behind Al-Haramain was about US based lawyers talking to their client overseas.

  5. William Ockham says:

    @emptywheel: The reason I asked is that for part of the time period under investigation he had a contract with ABC. I wouldn’t consider a hired analyst like that a journalist, but I was wondering if the DOJ made a distinction.

  6. hcgorman says:

    I don’t think it is just the overseas gitmo lawyers that believed they were being wiretapped. Although I was living overseas for a year and a half while representing my clients…but still I believe that many of us believed and still believe that we have been and continue to be wiretapped… here in the states…and that the “excuse” is that we had ties to “terrorism”…ie our clients. We filed suit to try to “officially” find out but of course it was thrown out.

  7. emptywheel says:

    @hcgorman: Yeah, I assume that about you lawyers too (then again, I assume it about me!). I think the govt is more embarrassed about admitting that stateside attorneys might be wiretapped though.

    Once upon a time, attorney-client privilege meant something.

  8. klynn says:

    Once upon a time, attorney-client privilege meant something.

    Once upon a time.

    EW, this news story is not getting the attention it deserves. Oh how the list of broken justice grows.

  9. JTMinIA says:

    “Hey, Leon. Check this out. It’s on that lefty muck-raker site that spun off FDL.”

    @Jim White: “One thing I keep going back to in the whole Kiriakou saga is that when he first popped up and started mouthing off in the press, my immediate impression was that he wasn’t “former” CIA, but that he had been sent out on a disinformation mission to seriously muddy the water on who did what to whom and when. That has remained a pretty strongly held belief for me, so I’m really struggling to get my mind around the government now going after him.”

    “See? I told you this would work. We got Jim White wondering. Time to indict him. That’ll ice it.”

  10. Gitcheegumee says:

    A provocative article from Germany:

    Fierce criticism of state spying on leftist politicians

    GlobalPost‎ – 3 hours ago

    (Carsten Koall/Getty Images) BERLIN — With their political roots going back to the former East German communists, Germany’s Left Party members always knew …

    Fierce criticism of state spying on leftist politician

    Justice minister calls extent of observation ‘unacceptable.’
    Siobhan DowlingJanuary 24, 2012 15:17

    BERLIN — With their political roots going back to the former East German communists, Germany’s Left Party members always knew that the intelligence agencies were keeping an eye on them, but they had no idea how closely they were being watched.

    It turns out that the country’s domestic intelligence agency, the Federal Office for the Protection of the Constitution (BfV), has been observing over a third of its parliamentary group, including the vice-president of the Bundestag, the Der Spiegel newsweekly is reporting.

    The agency, which is supposed to monitor anyone who could pose a danger to German democracy, has been keeping tabs on 27 of the 76 Left Party members of parliament, as well as 11 other politicians in regional parliaments. The revelations have elicited not just the expected consternation from within the party itself but also fierce criticism from across the political spectrum.

    The news has shocked the political establishment in Berlin. Green party whip Volker Beck questioned the agency’s sense of proportion, while Justice Minister Sabine Leutheusser-Schnarrenberger, a member of the pro-business Free Democrats, who have traditionally been fierce defenders of privacy, was stinging in her criticism. “If this is really true, then it would be unacceptable,” she told the Süddeutsche Zeitung. “The work of freely elected parliamentary representatives but not be allowed to be hindered by the BfV.”

  11. Twilight of the Bombs says:

    Arrest of Ex-CIA Official John Kiriakou for Leaks About Detainee Torture Criticized

    Human rights and open government advocates harshly criticized obama administration over criminal charges brought against an ex-CIA officer for allegedly leaking to reporters names of two agency operatives involved in the brutal interrogation of terrorism detainees.

    Jesselyn Radack, an attorney with Government Accountability Project, which defends whistle-blowers, called Kiriakou’s arrest most recent example of a broader administration crackdown against federal officials who disclose illegal, abusive or wasteful government activity.

    This is being done to send a chilling message to whistle-blowers, journalists and defense lawyers to keep quiet,” Radack said.

    Daniel Ellsberg who leaked the “Pentagon Papers” in 1971 said it was brazenly hypocritical to prosecute Kiriakou for leaking information related to waterboarding while those who performed it were granted immunity.

    You’re criminalizing the revelation of illegality and you’re decriminalizing the illegality – the torture,” Ellsberg said.

    Glenn Carle, a former CIA clandestine operations officer and a top counterterrorism official during the cheney / bush administration, called the espionage charge against Kiarakou “chilling,” and noted that it had previously been restricted almost solely for use against spies in the employ of foreign powers.

    That’s what is really surprising and chilling about all this,” Carle said. “It’s turning to domestic uses a pretty heavy piece of artillery.”

    Scott Horton, a professor at Columbia Law School and a prominent human rights attorney, noted that the names of CIA operatives would be extremely useful to foreign prosecutors pursuing possible war crimes charges against US intelligence agents and officials.

    Such probes, focusing on the use of torture against detainees and the kidnapping of terror suspects, known as “extraordinary rendition,” are under way in Spain, Italy and Germany.

    You have to put this in the context of pending criminal investigations overseas which target these very people,” Horton said. “That is why the CIA is so concerned.”

    http://www.huffingtonpost.com/2012/01/24/john-kiriakou-cia-leak_n_1229526.html?ref=politics

  12. Gitcheegumee says:

    @Twilight of the Bombs:

    Ms. Wheeler hosted (hostessed?) a book salon with Carle last summer,btw.

    The Interrogator – Book Salon Preview, Marcy Hosts | MyFDL

    Jul 9, 2011 … The Interrogator. Come meet with author Glenn L. Carle, Marcy Wheeler hosts. To his friends and neighbors, Glenn L. Carle was a wholesome, …

    my.firedoglake.com/elliott/2011/07/09/the-interrogator/

  13. Bob Schacht says:

    @hcgorman: “…and that the “excuse” is that we had ties to “terrorism”…ie our clients….”

    Seems to me that the laws (and the recent NDAA), as we have them, would *automatically* make you a terrorist. What keeps you from being tagged with that condition?

    Bob in AZ

  14. Bob Schacht says:

    @Twilight of the Bombs:

    …Scott Horton, a professor at Columbia Law School and a prominent human rights attorney, noted that the names of CIA operatives would be extremely useful to foreign prosecutors pursuing possible war crimes charges against US intelligence agents and officials.

    Such probes, focusing on the use of torture against detainees and the kidnapping of terror suspects, known as “extraordinary rendition,” are under way in Spain, Italy and Germany.

    “You have to put this in the context of pending criminal investigations overseas which target these very people,” Horton said. “That is why the CIA is so concerned.”

    Bmaz scoffs at these, as exercises in futility. I’m nuts enough to hope that one of or more of these investigations will bear good fruit.

    Bob in AZ

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