Yammering on the internet is not hard work, in fact it is blindingly (and sometimes maddeningly when it is pointed in your direction) easy. Getting heard, and functionally interacting in a fashion that can contribute to the real focus and discussion, however, is hard. For my part, I often carp enough about the failings of big media that it is only right to give praise where due.
Today credit is due to CNN’s Jake Tapper. Because he cares.
Two nights ago, rightly or wrongly …. but I think rightly … I laid into CNN for their overbearing focus on repetitive, and somewhat mindless, continuing drivel on celebrity. That was, of course, in relation to Robin Williams’ death. A noteworthy, sad, and tragic event for sure, but there was only so much news, the rest was pure Entertainment Tonight like pathetic drivel.
So I went after CNN, and I tacked Jake Tapper’s twitter handle on the end. I did so not because I thought he was the prime offender producing the overall CNN news product, but because I knew, from prior interaction, that Jake actually gives a damn and and is a contact point at CNN who would care. And maybe…maybe…be a change point. That was both fair, and unfair to him personally, at the same time.
I am pretty sure both CNN and Jake were bombarded by by an untold number of missives of the same variety. I don’t how how other inflection points at CNN dealt with what was surely a lot of feedback, but the fact Mr. Tapper took the time to take umbrage, and discuss…and think…seems significant and admirable to me. And I admire that.
I thought about writing this post long before I saw the following, but I was off with clients and court appearances, and could have easily shined it on, as I do with so many posts I want to write but don’t get to.
Until I saw something from Mr. Jake Tapper today that was just awesome.
But then, not long later, came this:
Well, to be sure, this is the stuff even a critic of journalism can love and applaud. You know why? Because not only is solidarity with journalists under grand jury and governmental oppression admirable (I have some experience in GJ targeting), it is the only, and only proper, thing that can be done.
There are not many out there to be so applauded. Maybe tomorrow there will be an issue, and moment of difference, on a different case. So it goes, and so be it.
But, now, James Risen stands exposed and on his own. As a man, and as a journalist, Tapper stood up and gave public square to his voice. Good on him.
Tonight, I am glad Jake Tapper is out there and is willing to engage. Tonight he did one hell of a report from Ferguson Missouri. Even if a big part was consumed by press conference feed. But, before and after, he made his voice clear. That is not exactly a common thing. It is to be commended.
Give the man credit, he was there, and he cares. And I will buy him a drink.
Today’s Inspector General Report on FBI’s use of National Security Letters has set off a bunch of alarm bells in my head.
At issue are two unexplained problems.
First, the Inspector General identified a huge drop in NSL use for the years covering this report: FBI obtained 49,425 NSLs in 2006, the year before this report. It obtained 54,935 afterwards. The years in-between — the 3 years covered by this report — NSLs dropped off a relative cliff, with 20% fewer in 2007 and even fewer in 2009.
The IG wasn’t able to offer any explanation for this, besides the possibility that increased scrutiny on NSL use led people to use other methods to get this information.
However, two supervisors and a division counsel told us that they believe agents use NSLs less often now than they did five years ago. These individuals told us that because of increased scrutiny on NSL use agents employ alternative investigative tools when possible.
In testimony last year, Jim Comey said FBI agents would just use grand jury subpoenas rather than NSLs if the NSLs became too onerous, so that may be where the activity disappeared to.
Hey, if 20% of FBI NSLs could be grand jury subpoenas without any problem, let’s make them do that!
It’s FBI’s other counting problems — and its non-answers — that have me even worried.
According to the IG, the FBI is not reporting as much as 7.3% of its NSL use to Congress. For example, when the IG tried to pull NSLs by NSL type (that is, toll billing, financial records, electronic transaction records), it found a significant discrepancy between what had been reported to Congress and what FBI’s internal spreadsheets showed.
[T]he NSL data in the itemized spreadsheets does not exactly match the NSL data reported to Congress in 2008 and 2009. The total number of requests reported for each year [by transaction type] is more than the total number of NSL requests reported to Congress by 2,894 and 2,231 requests, respectively. (63)
So for 2009, where FBI requested just 30,442 NSLs, FBI did not report 7.3% of the NSLs it requested.
(I can’t double check my math here because FBI redacted some of these tables, but I guess that’s one of the hazards of overclassifying things.)
That’s troubling enough, as is FBI’s lackadaisical attitude towards correcting the disparity.
After reviewing the draft of this report, the FBI told the OIG that while 100 percent accuracy can be a helpful goal, attempting to obtain 100 percent accuracy in the NSL subsystem would create an undue burden without providing corresponding benefits. The FBI also stated that it has taken steps to minimize error to the greatest extent possible.
Ho hum, we’re just the FBI, why expect us to be able to police ourselves?
But it gets weirder.
First, the one theory the IG came up with to explain the discrepancy is that FBI is not counting all the manual NSLs that bypass their automatic counting system implemented in response to the first IG Reports on NSLs.
In fact, they’re not: FBI’s Inspection Division found they’re not counting some significant (not single digit) percentage number of their manual NSLs (they redact how much they’re not counting on page 39).
But the IG seems to suspect there may be even more manual requests that are not being counted at all.
[T]he total number of manually generated NSLs that the FBI inspectors identified is relatively small compared to the total number of 30,442 NSL requests issued by the FBI that year. What remains unknown, however is, whether the FBI inspectors identified all the manually identified generally NSLs issued by the FBI or whether a significant number remains unaccounted for and unreported.(58)
If you guessed that FBI redacted under what circumstances FBI permits agents to bypass this automatic counting system, you’d be right. That discussion is in footnote 35 on page 17, and again on pages 113-115.
But I worry, given one observation from the IG, that they’re bypassing the automatic system in cases of “sensitive” investigations. Some apparent moron tried to explain why the IG found higher numbers for NSLs than Congress because the NSLs related to sensitive investigations were being reported to Congress but not the IG.
After reviewing the draft of this report, the FBI told the OIG for the first time that the NSL data provided to Congress would almost never match the NSL data provided to the OIG because the NSL data provided to Congress includes NSLs issued from case files marked “sensitive,” whereas the NSL data provided to the OIG does not. According to the FBI, the unit that provided NSL data to the OIG does not have access to the case files marked “sensitive” and was therefore unable to provide complete NSL data to the OIG. The assertion that the FBI provided more NSL data to Congress than to the OIG does not explain the disparities we found in this review, however, because the disparities we found reflected that the FBI reported fewer NSL requests to Congress than the aggregate totals. (58)
Aside from the revelation that FBI doesn’t understand how numbers work — that if Congressional reporting reflected a larger universe of NSLs than what the IG got to see, Congressional numbers should be higher, now lower — this also seems to mean that the IG is not being permitted to review the NSLs relating to sensitive investigations.
Now, it’s not entirely clear what FBI means by “sensitive” in this circumstance. But generally, “sensitive” investigations at FBI are those that investigate reporters, faith leaders, and politicians.
So it seems possible the FBI is not permitting the IG to review precisely the practices he should review.
Which brings me to another matter that is almost entirely redacted.
As I’ve reported repeatedly, one thing the last IG report on Exigent Letters showed is that a number of journalists have had their phone records collected by FBI. In addition, the 2011 DIOG made it acceptable to use NSLs to do so. Here’s the section of the executive summary of this report that describes whether FBI has resolved this issue.
From which I can only assume that FBI is continuing to use NSLs to collect journalist records (if FBI would like to declassify this language to prove me wrong, I welcome their transparency!).
So to sum up:
All that could be badly wrong — much of this information is redacted from both me, and in some cases, from Congress.
But doesn’t it raise some awfully big questions?
On Monday in Salon, I said (in part),
[T]he recent history of America’s torture also damns the conventions of journalism that strive so hard for some kind of fake balance that still prefers a term that obscures the truth over one that accurately describes it.
Don’t get me wrong: We owe our knowledge of torture to some of the best journalists in the business, people like Jane Mayer and Dana Priest and Adam Goldman.
But as soon as coverage moved beyond that superb investigative work to coverage of the politics of torture — to the journalists who should hold those who implemented torture accountable — we remain mired in obscurantist language.
Which brings us to the torture report result the press might take most seriously.
According to McClatchy, in addition to misleading Congress, DOJ and the White House, the torture report concludes that the CIA also fed misleading information to the press: “[T]he news media were manipulated with leaks that tended to blunt criticism of the agency.”
Part of this manipulation (one the White House participated in) involved convincing the press to call torture something else, something it’s not. Enhanced interrogation. Harsh treatment.
Anything but torture.
For 10 years, journalists have willingly perpetuated this linguistic absurdity, even as more evidence came out proving the CIA used torture and not some fluffed up interrogation process, even as more and more neutral arbiters judged our torture torture.
The Senate Intelligence Committee has spent five years trying to understand and come to grips with the torture done in our name. Isn’t it time for journalists to do the same?
While I don’t flatter myself that my column was needed at this point — or even would have been influential –the NYT did just announce that it would henceforth call torture, including US torture, torture.
Over the past few months, reporters and editors of The Times have debated a subject that has come up regularly ever since the world learned of the C.I.A.’s brutal questioning of terrorism suspects: whether to call the practices torture.
Given [changes that have taken place in recent years, including with the legal status of torture], reporters urged that The Times recalibrate its language. I agreed. So from now on, The Times will use the word “torture” to describe incidents in which we know for sure that interrogators inflicted pain on a prisoner in an effort to get information.
I may have more to say about the substance of the statement down the road. But for now two things are important: The most prestigious newspaper in the country has formally given up Bush’s euphemism. And this change came from the reporters.
May other outlets follow the Gray Lady’s lead.
The Intercept had a story on the content of the government’s terrorist watchlist yesterday — I’ll have more to say about the content later. But the government — largely National Counterterrorism Center — response to it shows the government getting increasingly unhinged about the Intercept and other journalistic models based on leaked documents.
First, in an apparent effort to shift the focus away from the 200,000 people on the terrorist watchlist with no tie to a known terrorist organization and to the fact that the watchlist has ballooned in response to the UndieBomb attempt in December 2009, NCTC gave the scoop to AP’s Eileen Sullivan.
The Associated Press dropped a significant scoop on Tuesday afternoon, reporting that in the last several years the U.S. government’s terrorism watch list has doubled.
NCTC even admitted they spoiled the scoop after the Intercept’s John Cook called them on it.
After the AP story ran, The Intercept requested a conference call with the National Counterterrorism Center. A source with knowledge of the call said that the government agency admitted having fed the story to the AP, but didn’t think the reporter would publish before The Intercept did. “That was our bad,” the official said.
Asked by The Intercept editor John Cook if it was the government’s policy to feed one outlet’s scoop to a friendlier outlet, a silence ensued, followed by the explanation: “We had invested some quality time with Eileen,” referring to AP reporter Eileen Sullivan, who the official added had been out to visit the NCTC.
“After seeing you had the docs, and the fact we had been working with Eileen, we did feel compelled to give her a heads up,” the official said, according to the source. “We thought she would publish after you.”
This is bone-headed on several levels. In the future, all government agencies will get less time to comment on the Intercept’s upcoming stories, which — given how much classified information they’re sitting on — could really hurt their interests.
And NCTC burned Sullivan badly; she’s a decent reporter, but NCTC has made it clear they consider her their reporter. (NSA has done this similarly but less obviously with some superb beat reporters, leaking them partial stories then exploiting those partial stories to undercut real attention on the documents.)
Then, the government gave CNN’s Evan Perez an “Exclusive” to trumpet their determination that there’s probably someone else leaking documents to the Intercept.
The federal government has concluded there’s a new leaker exposing national security documents in the aftermath of surveillance disclosures by former NSA contractor Edward Snowden, U.S. officials tell CNN.
Proof of the newest leak comes from national security documents that formed the basis of a news story published Tuesday by the Intercept, the news site launched by Glenn Greenwald, who also published Snowden’s leaks.
The Intercept article focuses on the growth in U.S. government databases of known or suspected terrorist names during the Obama administration.
The article cites documents prepared by the National Counterterrorism Center dated August 2013, which is after Snowden left the United States to avoid criminal charges.
Greenwald has suggested there was another leaker. In July, he said on Twitter “it seems clear at this point” that there was another.
Government officials have been investigating to find out that identity.
Note, there’s almost certainly an error here, presumably on the part of the government. There appears to be a second NSA leaker, leaking to Jacob Appelbaum. But there’s also the person who gave the Intercept the NCTC documents, which is almost certainly an entirely different person.
Of course, there’s not just one new leaker. In DC there are new leakers everyday, even people who share classified documents. What Perez’ sources mean is OMIGOD there’s another person giving That Outlet documents.
The government has chosen to make it a Big Story that at least one more person has decided to leak the Intercept documents.
Ultimately, I think the Known and Suspected Terrorist documents the Intercept got are badly overclassified and also should be released in whole to permit debate and oversight. The documents show some good things (and some areas where NCTC has implemented questionable demands from Congress such as that they biometric everything). They also show the system lacks controls. Absent real discussion, it appears NCTC and the rest of this bureaucracy hasn’t gotten the right balance on watchlisting.
But rather than engaging in that debate, the government first tried to pre-empt it, burning Sullivan in the process, and then screaming so loud as to raise the value of such leaks.
I’ve been so buried in Netroots Nation and related issues I’ve only followed the top-line coverage of the MH17 shoot-down. I think the version the Administration released yesterday — that Ukrainian rebels shot down the airliner by mistake — is the most plausible explanation, though I’m aware of questions about that story.
All that said, there’s something about yesterday’s dog-and-pony show offered at the Office of Director of National Intelligence that seriously discredits the US story.
As the WSJ account of it makes clear, the reporters brought in for that dog-and-pony were explicitly told the dog-and-pony was being held to “not let a Russian narrative get out there.”
The Russian government is making a “full-court press” to spread a Russian version of events that try to pin the shoot-down on the Ukrainians, which is “not plausible to us,” one senior intelligence official said.
A key goal of Tuesday’s presentation, said one senior intelligence official was “not letting a Russian narrative get out there,” said one senior U.S. intelligence official.
(Apparently this senior intelligence official is not honest enough to admit both sides are already in a game of full court pressing – and John Kerry has already gotten beyond what the government released yesterday.)
Here’s the thing. While the Russians have not offered as much proprietary intelligence as the US offered yesterday, the presentation this dog-and-pony show is meant to rebut involve their Ministry of Defense providing a televised briefing on their questions about the event.
By contrast, noted liar James Clapper’s office invited hand-picked journalists in, and swore them to silence about who actually gave the briefing, and only afterwards released a transcript and other materials on the briefing. Spencer Ackerman was among the obvious journalists who should have been but was not invited.
Some of the evidence provided by US intelligence – whose fiscal 2013 budget was $68bn – included Facebook posts. “After it became evident that the plane was a civilian airliner, separatists deleted social media posts boasting about shooting down a plane and possessing a Buk (SA-11) surface-to-air missile system,” a senior intelligence official said in the briefing, held on condition of anonymity. The Guardian was not invited to the briefing, a transcription of which was later made available.
Look, if the US government has a case, they can release it publicly. But what they appear to be doing instead is creating their own official press corps and presenting their case there.
That’s especially true given that something else said at the briefing undermines the US case against the rebels.
They noted that it can be difficult to track the transportation of weapons because they are often moved at night, and the Russians have provided the separatists with types of weapons that the Ukrainians also have in order to maintain “plausible deniability.”
If the Russians have gone to some length to hide their role in arming rebels, why would they also give them a weapon that would draw so much attention (the Ukrainian government has them as well, but they haven’t used them)? (Though I actually think the point is they have been fired, but weren’t considered so fancy until they took down a civilian jet.)
I suspect at this point both sides are hiding interesting details they know. But the US has the more plausible case, thus far. So why are they unwilling to present their case publicly?
As many people have reported, SCOTUS today declined to take Jim Risen’s appeal of the Fourth Circuit’s decision requiring him to testify in Jeff Sterling’s trial. As I noted at the time of the decision, this effectively guts any reporter’s privilege in the circuit that matters: the Fourth Circuit governs the CIA and JSOC.
Now, Risen’s team is calling on DOJ to uphold Eric Holder’s promise of last week, that no journalist engaged in journalism will be prosecuted on his watch.
“As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”
As Kevin Gosztola has noted on Twitter, however, there’s a difference between prosecution and jailing under contempt. So that promise is likely meaningless.
And not only does that put Holder where he wants to be: with the courts on his side, exercising the discretion to jail a journalist or not as he can convince the court.
Furthermore, consider how it creates pressure for Chuck Schumer’s (Administration-backed) badly flawed press shield bill. The bill wouldn’t cover me. It wouldn’t cover Glenn Greenwald. And it would leave James Risen precisely where he is now, subject to a judges ruling on the significance of the information he has.
There was already a lot of support for this bill. But now that the Executive Branch has gained all the leverage where it matters, I imagine there’ll be a greater push to Do Something — even if that just codifies an official press that gets privilege.
On the same day NYT’s Adam Liptak reported this decision, he also did a profile of SCOTUSBlog’s Thomas Goldstein, who — because he doesn’t fit the official model of journalist, in spite of the number of people who rely on his journalism — still can’t get press SCOTUS press credentials. In spite of near universal acknowledgment of the important role SCOTUSBlog plays, the traditional press hasn’t budged, which has helped SCOTUS punt on the issue too.
The closer the press gets to official sanction, the worse the reporting we’ll get.
This is just a quick announcement that I have ended my affiliation with First Look/The Intercept. My departure was voluntary and amicable.
To anticipate questions some may ask, my departure from The Intercept doesn’t relate to anything I wrote or didn’t write about Ukraine. It did not relate to the downtime The Intercept just took (and seems to be coming out of). The reasons for my departure predate both of those things, to January.
I’ll have more to say–not about The Intercept, per se, but about things I’ve learned about my own journalism over the last 7 months, as the Edward Snowden story played out and the Intercept discussed hiring me–at some later point, after some reflection.
Things here will remain the same.
We will, however, be doing a fundraising campaign next week (or you can beat the rush by donating today!). Until such time as a billionaire wants to support the work we do here, we will rely on readers to pay the bills.
Thanks, as always, for making all that possible!
The FAA is cranky that a journalist took footage of the tornado in Arkansas the other day with a drone.
That footage, taken by storm chaser and photographer Brian Emfinger on Sunday, is now being investigated by federal aviation officials, after a local TV news channel used it as part of its disaster coverage. Mr. Emfinger, a Little Rock-based photojournalist, could be fined $10,000 if the government decides to pursue him for illegal drone-flying.
The Federal Aviation Administration (FAA) insists that such “drone journalism” isn’t legal because it breaks rules against commercial use of unmanned aircraft. Nonetheless, some drone experts say the footage of post-tornado Mayflower heralds “the dawn of the drone journalism age” – a potentially vexing frontier that pits curious citizens against a government with qualms about the spying potential of drones.
CSM uses it to lay out the tensions currently surrounding the FAA’s role, as if this is just a question of FAA’s efforts to slowly develop a legal regime for drones.
But it’s not just that. One of the examples CSM cites deals with a dispute with local cops, who thought locally controlled drone photos of an accident site might affect the site.
And while the article treats a commercial missing persons use of drones, it doesn’t consider other uses, like non-commercial monitoring of environmental sites like industrial farm CAFOs (the latter of which finally got Chuck Grassley opposed to drones because it threatens his big Ag constituents). It also doesn’t mention earlier efforts to obtain independent (whether commercial or not) surveillance of big disasters, things like the BP catastrophe.
Some of what we’re seeing is FAA’s efforts to deal with real safety and privacy and overall legal regime concerns.
But it’s also a question of who gets to wield a certain kind of vision, one currently monopolized by the state.
I’m not a fan of the proliferation of drones generally, because I think that kind of vision should be very limited. But there are also many data points out there to suggest that drones will end up being a sharply circumscribed privilege, limited to only those the state thinks should have a certain kind of vision on society.
On Saturday, Hamid Mir, the most popular news anchor on Geo, Pakistan’s largest television news outlet, survived an assassination attempt. He remains hospitalized with at least six bullet wounds. Controversy has swirled since the attack, with Mir’s brother Amir Mir, also a journalist, accusing Pakistan’s ISI of being behind the attack. ISI has responded by approaching the broadcast regulatory authority in Pakistan, demanding that Geo’s license be revoked.
The Committee to Protect Journalists has denounced the move by the ISI:
The Committee to Protect Journalists is greatly concerned by actions brought by Pakistan’s Inter Services Intelligence Directorate (ISI) against Geo Television today. In its complaint to the Pakistan Electronic Media Regulatory Authority, the ISI accused Geo’s parent company, the Independent Media Corporation, of conducting a “false and scandalous campaign undermining the integrity and tarnishing the image of state institution (ISI) and its officers.”
The media regulator has the authority to shut down broadcasters based on such complaints, and has done so under previous administrations of Pakistan.
“We call on the Pakistan Electronic Media Regulatory Authority not to act on this spurious complaint, and we call on Pakistan’s security services to recognize the critical role of the media and exercise tolerance and maturity,” said Bob Dietz, CPJ’s Asia program coordinator. “The ISI is free to rebut allegations in the media but should not try to censor coverage.”
Declan Walsh covered the move by the ISI in the New York Times on Tuesday:
Mr. Mir survived the attack and is being treated for gunshot wounds to the chest and shoulder. But as he was still receiving emergency treatment, Geo prominently broadcast heated accusations from Mr. Mir’s brother, the journalist Amir Mir, who accused the ISI of being responsible for the attack.
During extended commentary, Geo also repeatedly broadcast a photograph of the ISI chief, Lt. Gen. Zahir ul-Islam, while a senior journalist employed by the station called for the general to resign.
Hamid Mir, whose pugnacious style has frequently stirred up controversy, has been a fierce critic of the military, and in February he privately told station managers that he had received a threat from ISI operatives about his work, according to the station. In November 2012, a bomb was found strapped to the underside of his car outside his home in Islamabad.
On Tuesday, evidently, the generals decided they had had enough criticism.
In a four-page letter to the state-run Pakistan Electronic Media Regulatory Authority, the Defense Ministry not only asked for Geo’s broadcasting license to be revoked, but called for the body to initiate criminal proceedings against Geo editors and management.
This had to be a difficult story for Walsh to cover, considering that he was mysteriously kicked out of Pakistan last May, just as elections were taking place. Walsh also this morning tweeted a link to an article in the Guardian that contains an explosive quote from the president of Geo News:
Geo’s president – a former newspaper editor named Imran Aslam – became wistful when defending his channel’s coverage after the assassination attempt on Mir. “There was a time that if they didn’t like what you wrote they censored you. They cut out a word or a line. If they got really angry they got your editor fired. Now they just shoot you.” A bullet in the head is the new form of censorship in Pakistan.
Interestingly, just after the bomb was defused on Mir’s car in November of 2012, coverage suggested that it may have been planted by the TTP, especially since Mir had been covering the TTP’s shooting of Malala Yousafzai. In an AP story carried in the Washington Post, we have this on Mir’s more recent reporting:
In recent weeks, Mir’s show gave prominent coverage to a group campaigning against the disappearances and torture of insurgents and their supporters in southwestern Baluchistan province — allegedly at the hands of ISI.
Geo is reporting that Hamid Mir is expected to make a public statement later today. I will keep an eye out for it.
Update: The Express Tribune just posted on Mir’s statement:
In a statement read out by his brother on Thursday, senior journalist Hamid Mir said that he faced threats from both state and non-state actors, Geo News reported.
On Saturday, April 21, unknown assailants shot at Mir in Karachi, critically injuring him.
Through his first official statement since the attack, Mir claimed that he had recently been approached by intelligence officers who informed him that he was on a hit-list.
He said he is making this statement despite the pressure he is facing from various quarters.
The ISI was upset with me for my coverage of Mama Qadir’s Long March, he added.
I forwarded the numbers from which I received death threats to the police, the statements reads, but the police did not do anything about it.
For years, I have been harping on the language in FBI’s Domestic Investigations and Operations Guide that permits DOJ to get journalists’ contact information using NSLs because — given that they are not warrants — they need no Attorney General review.
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 18.104.22.168.3 [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.
See also this post, where I tried to write it really plainly.
Then, last year, after it got caught obtaining the call records of some Pulitzer Prize winners, DOJ pretended to roll out new protections for journalists.
Charlie Savage reports that DOJ has just rolled out the final version of those great new protections.
Here’s the last paragraph of his report on the “new guidelines.”
The rules cover grand jury subpoenas used in criminal investigations. They exempt wiretap and search warrants obtained under the Foreign Intelligence Surveillance Act and “national security letters,” a kind of administrative subpoena used to obtain records about communications in terrorism and counterespionage investigations.
Which makes these “new guidelines” worth approximately shit in any leak — that is, counterintelligence — investigation.