A bit more on Brian Ross's reporting on the government snooping through reporters' phone records as part of their leak investigation. TPM Reader ME, in an email this evening, cut to the heart of the matter. In a criminal investigation, which a leak investigation can be, investigators can look into all sorts of private information -- phone records, financial records, travel records. They can subpoena you before a grand jury and on and on. We have only to consider the on-going Fitzgerald investigation or, even more to the point, Fitzgerald's earlier but less well known investigation into suspect Muslim charities.
If this is all we're talking about, it's not news. Indeed, the Justice Dept. has fairly detailed guidelines for federal prosecutors when they must subpoena and otherwise investigate members of the press (See 28 CFR 50:10 "Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll records of members of the news media, and the interrogation, indictment, or arrest of, members of the news media.").
But in his report Ross doesn't seem to be talking about subpoenas in the course of a conventional criminal investigation. He appears to be referring to something more on-going. And the investigators also seem to be using legal methods at least nominally intended for use in counter-espionage or counter-terrorism. In this case, so-called National Security Letters, the use of which was dramatically expanded by the Patriot Act and has grown by more than 100 fold since 9/11. (This November 2005 article in the Post describes how FBI field supervisors can issue NSLs on virtually anyone, often for the most seemingly trivial contacts with persons of interest.)
Given the Bush administration's self-servingly indulgent definition of the War on Terror, I don't doubt that they would define finding leakers as a subdivision of fighting terrorism, or for that matter scrutinizing political opponents.
We need to know more about what Ross is talking about.
It seems of a piece with the administration's record of abuses of power. But what we know is too vague.
Late Update: According to this AP story, the FBI says that it routinely scrutinizes the phone records of government workers in leak investigations. That doesn't seem too surprising.
The FBI spokesman interviewed by the AP said Ross's report was 'misleading' (AP's word, not his) about scrutiny of journalists. But he doesn't seem to say precisely how. Then this ...
"Where the records of a private person are sought, they may only be obtained through established legal process," [FBI spokesman] Carter said.
The FBI can seek warrants and subpoenas from judges and grand juries, either through traditional courts or a secret court established for espionage and terrorism investigations. The bureau also has the power to seek subscribers' telephone and Internet records without approval of a judge or grand jury in espionage and terrorism cases by issuing a National Security Letter.
The FBI sought information last year on 3,501 U.S. citizens and legal residents through those letters, the Justice Department said last month.
Again, this is the rub. Ross's report said they were using NSL's. Are they?
The FBI spokesman doesn't seem to deny it.