Across the table at one of Washington’s classic power restaurants, my source sat smiling. We hadn’t seen each other for more than six years. After the usual opening small talk and pleasantries, I had just posed the question I had come to dinner to ask.
“I’m curious. Why did you go cold on me all these years?” I inquired.
“You were too hot,” the source shot back wryly, playing off my own words. “Honestly, we were concerned that after your phone records and mail was seized that you were still being monitored.”
The source paused.
“It’s too bad. There were a lot of great stories I wanted to give you.”
That conversation from late 2007 still resonates in my memory, a vivid reminder of what can happen when the government exercises its awesome powers to try to secretly unmask reporters’ confidential sources.
More than a decade before the Justice Department secretly collected the phone records of four of my former colleagues at The Associated Press, I was one of the first reporters to have both his home phone records and personal mail gathered by the Justice Department and FBI. It was a futile effort to find the sources of stories I had written.
In the summer of 2001, the Bush Justice Department authorized a subpoena for my home phone records in an effort to locate confidential sources who had helped me put together a series of stories about what prosecutors knew about possible wrongdoing between then-Sen. Robert Torricelli and a major political donor before the case was dismissed.
At the time, I was the AP’s lead investigative reporter and an assistant chief of bureau in its Washington bureau. The U.S. attorney manual’s rules required the Justice Department to notify AP in advance of taking a reporter’s phone records and to negotiate a possible solution.
That did not happen. The Justice Department decided instead to subpoena and review my records and then notify me afterwards. I got the notification in the mail in late August 2001, months after prosecutors already had gone through my home phone records.
The news media was outraged by the intrusion and for days after the revelation, there was a campaign by the media to demand answers and an end to such tactics, which fly in the face of the press freedoms enshrined in the First Amendment.
But the story quickly faded on Sept. 11, 2001, when the country’s attention was riveted to the arrival of large-scale international terrorism on U.S. shores. Gone was the momentum to pressure the government to answer some important questions about its assault on the First Amendment.
I went back to reporting immediately, trying to tell the stories of what the government knew about threats of possible terror attacks in the days and weeks before 9/11. I managed to break some big stories, the infamous Phoenix memo warning of Arab pilots training at U.S. flight schools among them.
But I noticed a marked difference in the way my long-time sources treated me. Most refused to talk on the phone for any length of time, and they almost never emailed me anymore.
Anything sensitive had to be done by meeting in person. One source went as far as to require me to sit on a bench in a city park, where I could retrieve leaked documents hidden inside a folded newspaper. It was painfully obvious that the government’s intrusion had affected my ability to report hidden truths to the American people.
Then, the second blow arrived.
During the height of the Sept. 11 crisis, a colleague of mine at the AP in the Philippines had sent me a copy of an old 1990-era FBI lab report from an earlier terrorism case involving al-Qaida. It was sent by Federal Express – but never arrived. When I inquired of FedEx what had happened to the package, the carrier told me it has “fallen off a horse cart in Manila and must have gotten lost.”
I knew from the official’s tone on the phone that something fishy had occurred. I began digging, and months afterwards got official confirmation that the U.S. Customs Service had used an arcane, century-old legal authority known as border search authority to open my mailed package and seize the report. The Service then gave the mail to the FBI, which kept it for months without notifying me or obtaining the required warrant or subpoena.
When word of the seizure surfaced in 2002, my sources dried up almost entirely, especially in the national security world. I was working on a major story about terrorism, and couldn’t get a single call returned, not even from press officials. I was infuriated, stopped cold from unearthing a story that the country deserved to know – indeed, stopped from breaking many stories.
AP news executives, lawyers and I discussed whether we should file a lawsuit accusing the government of twice infringing my First Amendment rights. That meant waging a long, costly legal battle. I feared such an action would only prolong the freeze-out I was suddenly experiencing as a reporter. An investigative reporter with scared sources is no reporter at all, I argued.
I decided to reach out to the FBI myself and try to work out a deal. The FBI agreed, eventually returning my mail, with an apology, and agreeing to create new internal review rules to prevent such illegal seizures from occurring in the future. When word of the FBI’s apology and new rules surfaced, some – but not all – of my sources began returning calls.
Some I never heard from again; others waited until years later to reconnect with me. I managed to continue to report on important stories – helping to expose the recent Fast & Furious and the Benghazi scandals, among others – but I’ve never felt the same level of comfort among my sources, who have frequently told me they passed me over on certain scoops or were afraid to reach out because of the uncertainty of whether the government was continuing to monitor my reporting.
Congress will tell you that it is suddenly outraged by the latest subpoenas for AP phone records. But its track record of action will tell you otherwise. With the exception of Sen. Charles Grassley, R-Iowa, no lawmaker provided the AP much help in its fight a decade ago.
And no action was ever taken against the government officials who approved taking my phone and email records. In fact, Mary Jo White, the U.S. attorney who sought my phone records back in 2001, recently sailed through her Senate confirmation as the new Securities and Exchange Commission chairwoman without a single question from lawmakers that I could find about my First Amendment case.
Likewise, the government will tell the American people – as it just has, after seizing new phone records from AP reporters and editors – that it has no choice but to gather phone records, emails and mail in leak cases. It will claim national security was at risk, that sources and methods needed to be preserved or that the integrity of grand jury proceedings needed to be safeguarded against leaks.
But that was not my experience. None of the information the government went rummaging for in my phone records or mail would have put anyone at risk. The Torricelli grand jury was long since closed and most all the information I had gathered was already shared with defense lawyers during the probe, meaning it was essentially in the public domain. And the 1990s-era FBI lab report had been put in the public record at trials well before Sept. 11.
The only reason my lawyers could conceive for the intrusions on my privacy and the First Amendment was because the government wanted to stop the flow of information that might inform the public and embarrass people in power.
On that front, the government scored an unmitigated victory. My reporting was, and probably continues to be, chilled by the government’s intrusion a decade later. And as the source at the 2007 dinner reminded me, I won’t ever know how many stories I could have gotten from sources or whistleblowers who decided it wasn’t worth the risk to talk to me or another reporter. And that may be the greatest public consequence of all, the chilling and silencing of the flow of information that would hold government accountable.