FBI Tracks Press Leaks Via Phone Records: "National Security Letters" and "Letters of Certification" Supplant Warrants

Editor and Publisher tracks ABC News' updated story:

The FBI acknowledged late Monday that it is increasingly seeking reporters’ phone records in leak investigations. “It used to be very hard and complicated to do this, but it no longer is in the Bush administration,” said a senior federal official.

The acknowledgement followed our blotter item that ABC News reporters had been warned by a federal source that the government knew who we were calling.

The official said our blotter item was wrong to suggest that ABC News phone calls were being “tracked.”

“Think of it more as backtracking,” said a senior federal official. 

But FBI officials did not deny that phone records of ABC News, the New York Times and the Washington Post had been sought as part of a investigation of leaks at the CIA.

In a statement, the FBI press office said its leak investigations begin with the examination of government phone records.

“The FBI will take logical investigative steps to determine if a criminal act was committed by a government employee by the unauthorized release of classified information,” the statement said.

Officials say that means that phone records of reporters will be sought if government records are not sufficient.

Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).

The NSLs are a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government.

Meanwhile, AT&T has come up with justification for turning over phone records: a "letter of certification" from the Attorney General.  AT&T's attorney, who happened to have worked for Bush on the USA Patriot Act, claims that the mega-corporation is an "innocent bystander," but will not make the letter available, since its existence is essentially a secret.

Federal law may "authorize and in some cases require telecommunications companies to furnish information" to the executive branch, said Bradford Berenson, who was associate White House counsel when President Bush authorized the NSA surveillance program in late 2001 and is now a partner at the Sidley Austin law firm in Washington, D.C.

Far from being complicit in an illegal spying scheme, Berenson said, "AT&T is essentially an innocent bystander."

AT&T may be referring to an obscure section of federal law, 18 U.S.C. 2511, which permits a telecommunications company to provide "information" and "facilities" to the federal government as long as the attorney general authorizes it. The authorization must come in the form of "certification in writing by...the Attorney General of the United States that no warrant or court order is required by law."

The Capital Times' John Nichols sees the implications for the press:

If the administration has begun reviewing the telephone calls of reporters not to catch lawbreakers but to prevent revelations of its own lawlessness, then this White House has strayed onto dangerous political turf.

To be sure, the Bush-Cheney administration would not be the first to go after journalists in order to protect itself from challenges to its authority. President John Adams actually jailed editorial critics in the early days of the republic, provoking the crisis that would make him the first president to be defeated for re-election. President Richard Nixon produced an "enemies list" that included the names of prominent journalists such as Daniel Schorr.

This could mark a turning point for the usually pliant Washington press corps, however.

White House reporters are by any measure a docile lot, and there is no question that the Bush-Cheney administration has benefited tremendously from the frequently stenographic reporting of even its most outlandish spin by unquestioning national correspondents.  Two words: "Judith Miller."  But it is difficult to imagine, especially with the approval ratings for the president and vice president dipping to depths previously explored only by Richard Nixon and Spiro Agnew in the darkest days of their diminishing power, that Washington reporters will take kindly to being spied on by an administration bent on shutting up confidential sources.

It is, of course, true that members of the White House press corps should not need a threat to their own privacy, not to mention their most vital sources of honest information, to be inspired to practice their craft as the founders intended. But the track record of the past several years indicates that a jolt of some kind was needed.

Let's just hope that the reporters who cover Bush and Cheney will prove to be self-serving enough now to begin taking on an administration that appears to be bent on silencing the whistle-blowers who are so necessary to the telling of the full story of what this White House is doing in our name but without our informed consent.

It's enough to render one speechless, except I've already said it: "No Coup d'etat, My Ass!"

"Letter of Certification:" Reminds me of Dean Wormer's "double secret probation" in Animal House-so secret that no one knows it exists.  Only this is real.