ABC News claimed yesterday that phone calls made by its reporters and journalists at the New York Times and Washington Post are being traced by the federal government as part of an investigation into leaks of classified information.
In a blog posting, the network said two of its reporters, Richard Esposito and Brian Ross, were told by an unnamed senior federal official that the government had obtained records of calls placed by the two men. The network said the probe may be focused on leaks about a CIA program to detain terrorism suspects at secret locations outside America, but could also involve the network's reports on the spy agency's use of missile-firing Predator drones in Pakistan.
ABC did not assert that its reporters' conversations were being listened in on, but solely that the government had obtained information on whom reporters were calling.
A former counterterrorism chief at the CIA, Vincent Cannistraro, told The New York Sun yesterday that FBI sources have confirmed to him that reporters' calls are being tracked as part of the probe. "The FBI is monitoring calls of a number of news organizations as part of this leak investigation," Mr. Cannistraro, who has worked as a consultant for ABC, said "It is going on. It is widespread and it may entail more than those three media outlets."
Under longstanding Justice Department regulations, prosecutors who subpoena a journalist's phone records are required to notify the reporter involved within 90 days of obtaining the records. The regulations state that, in most cases, subpoenas should not be issued until after an attempt is made to negotiate access with the reporter.
Spokeswomen for ABC and the Times said their organizations had received no official notification of the effort to seek their phone records. The Washington Post did not respond to a call seeking comment for this article.
The executive director of the Reporters' Committee for Freedom of the Press, Lucy Dalglish, said the government's reported acquisition of journalists' calling records was part of a pattern of intrusions on First Amendment rights by the Bush administration. "I'm ready to throw my arms up in the air," she said. "If there was a subpoena, they are supposed to be notified."
Investigators could obtain records of calls from government phones without any subpoenas, Ms. Dalglish observed.
An FBI spokesman, Bill Carter, called the ABC report "misleading," but did not dispute that journalists' phone records have been obtained by his agency. "In any case where the records of a private person are sought, they may only be obtained through established legal process," he said.
One ambiguity the Justice Department may be exploiting is that the regulations, adopted in 1980, refer to trial and grand jury subpoenas. ABC suggested yesterday that its records may have been obtained without going through the courts, but instead by using authority for so-called national security letters contained in an anti-terrorism law passed in 2001, the Patriot Act.
Mr. Carter said the Justice Department guidelines are observed even when seeking national security letters, but he said he was not certain whether the notification provisions were the same in such cases.
The secrecy of the national security letter mechanism could help prosecutors head off court challenges news organizations have brought and sometimes won when prosecutors followed the guidelines.
In 2002, a federal prosecutor, Patrick Fitzgerald, attempted to negotiate with the Times to get copies of its phone records as part of an investigation into a leak that he said resulted in the destruction of evidence by officials at an alleged Islamic charity. The Times refused to cooperate and sued to block disclosure of the records.
A federal judge in Manhattan, Robert Sweet, ruled in favor of the newspaper and blocked any subpoenas. The government's appeal of that decision is pending before the 2nd Circuit.