The 2011 DIOG Permits Using NSLs to Get Journalist Contacts

In what may be one of those stories telegraphing investigative details between people being investigated, the WaPo updates the StuxNet investigation.

Prosecutors are pursuing “everybody — at pretty high levels, too,” said one person familiar with the investigation. “There are many people who’ve been contacted from different agencies.”

The FBI and prosecutors have interviewed several current and former senior government officials in connection with the disclosures, sometimes confronting them with evidence of contact with journalists, according to people familiar with the probe.

Here’s the detail everyone is focusing on (and I’ve seen similar claims on reporting of other leak investigations).

Investigators, they said, have conducted extensive analysis of the e-mail accounts and phone records of current and former government officials in a search for links to journalists.

[snip]

Former prosecutors said these investigations typically begin by compiling a list of people with access to the classified information. When government officials attend classified briefings or examine classified documents in secure facilities, they must sign a log, and these records can provide an initial road map for investigators.

Former prosecutors said investigators run sophisticated software to identify names, key words and phrases embedded in e-mails and other communications, including text messages, which could lead them to suspects.

The FBI also looks at officials’ phone records — who called whom, when, for how long. Once they have evidence of contact between officials and a particular journalist, investigators can seek a warrant to examine private e-mail accounts and phone records, including text messages, former prosecutors said.

Prosecutors and the FBI can examine government e-mail accounts and government-issued devices, including cellphones, without a warrant. They can also look at private e-mail accounts without a warrant if those accounts were accessed on government computers. [my emphasis]

This description may well be how the government is conducting the StuxNet (and the UndieBomb 2.0 investigation, which the article also describes).

But if WaPo is relying solely on former prosecutors, this description may be totally outdated.

After all–as I’ve reported repeatedly in the past–the 2011 update of FBI’s Domestic Investigations and Operations Guide permits using National Security Letters to get journalists’ contacts in National Security investigations (as all of these would be).

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 restrictions requiring 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]

And the section on NSL use (see PDF 100) makes it clear that a long list of people can approve such NSLs:

  • Deputy Director
  • Executive Assistant Director
  • Associate EAD for the National Security Branch
  • Assistant Directors and all DADs for CT/CD/Cyber
  • General Counsel
  • Deputy General Counsel for the National Security Law Branch
  • Assistant Directors in Charge in NY, Washington Field Office, and LA
  • All Special Agents in Charge

In other words, while DOJ does seem to offer members of the news media–which is itself a somewhat limited group–some protection from subpoena, it also seems to include loopholes for precisely the kinds of cases, like leaks, where source protection is so important.

In other words, this story about starting with the sign-in logs of people who’ve been briefed on a particular topic, then gather call records of those officials?

That may be what happened.

Or it may work the other way, with the government identifying a story it doesn’t like and then using call records to trace back from there to the potential sources of the story.

This curious phrasing would support the latter scenario.

[DC US Attorney Ronald] Machen is examining a leak to the Associated Press that a double agent inside al-Qaeda’s affiliate in Yemen allowed the United States and Saudi Arabia to disrupt the plot to bomb an airliner using explosives and a detonation system that could evade airport security checks.

The AP, after all, didn’t report that UndieBomb 2.0 was actually a sting set up by a Saudi-run infiltrator (and their reporting, at least, suggested they didn’t know UndieBomber 2.0 was an informant). John Brennan and Richard Clarke told that story. And yet WaPo describes the investigation as focusing on the AP part of the story, not the more damning part about an infiltrator.

If and when John Brennan goes unpunished for revealing the most damning part of this story, it’ll become increasingly clear: not only is the government starting with the journalists’ phone and email contacts, but it is doing so with journalists it might otherwise want to silence.

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.

10 replies
  1. P J Evans says:

    The list of who can approve NSLs looks like just about anyone at the DOJ or FBI who’s above peon level and feels like harassing a journalist or two.

  2. emptywheel says:

    Btw, if you look at the WaPo story, Peter Finn gets the only byline. But there’s a comma there, as if there were other people named. Julie Tate is listed as contributing–at the end, where they usually relegate here.

    But were there other WaPo journos involved? I can think of several who would have received both of these leaks.

  3. Rayne says:

    So just how many of the “terrorism stings” we’ve seen to date aren’t really efforts to draw out terrorists, but to hound and silence journalists?

  4. gregorylent says:

    keeping secret exactly that which should be revealed lets me know the american government is on a suicide path, choking on its own fear, stumbling in its blindness, desperate to maintain an old paradigm that history has already passed by.

  5. bittersweet says:

    So how are the journalists supposed to know which stuff the the government wants them to leak and which stuff will land them in jail? How are future VP’s gonna get them to leak future Valerie Plames’ if they fear to print anything they are told?
    Geeze, does the FBI have to plant fake journalists just to leak stuff on political opponents?

  6. emptywheel says:

    @Rayne: I think that misreads UndieBomb 2.0. The Admin very clearly did intend to have a dog & pony show abt the “disrupted” plot, as they did with the toner cartridge plot. Plus, UndieBomb 2.0 appears to have been designed to justify signature strikes (AKA Saudi-directed counter-insurgency strikes) in Yemen.

    I just think after the GOP started going nuts about it, taking out Apuzzo and Goldman became a bonus.

  7. orionATL says:

    this is good news, excellent news in fact.

    the deadly national security state a politically cowardly congress has built since late 2011 will only be dismantled when it begins to eat its users and benefactors, as appears to be beginning with this investigation.

  8. lefty665 says:

    @orionATL: “If and when John Brennan goes unpunished for revealing the most damning part of this story, it’ll become increasingly clear: not only is the government starting with the journalists’ phone and email contacts, but it is doing so with journalists it might otherwise want to silence.”

    Good news? Really? More like one more way to persecute to suppress information.

  9. Bill Michtom says:

    @bittersweet: That seems like an easy question to answer: what will show the regime in the best light–powerful all-knowing daddy-figures looking out for the “safety” of the American public. Bob Woodward, for instance.

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