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.
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.