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Yet Another Example of How Government Uses ‘Legal Process’ to Coerce Reporters to Reveal Sources

Deputy Attorney General Jim Cole claims it’s not the policy of President Barack Obama’s administration to jail reporters.

In 2011, a reporter for Fox News named Mike Levine was issued a grand jury subpoena as part of a Justice Department leak investigation. The subpoena demanded Levine reveal the names of “law enforcement” sources, who confirmed details for a story he wrote on Somali-Americans being indicted on terrorism charges in Minneapolis, Minnesota. Levine fought the subpoena and lost in July. Despite the fact that the government had defeated , the government withdrew the subpoena in April 2012.

That Levine had been subpoenaed had been publicly known since May of this year, however, court records in the case remained secret until yesterday. And they provide a clear example of how the government is willing to use the legal process against journalists to essentially intimidate and pressure them into revealing their confidential sources.

Levine, according to his court declaration [PDF], investigated reports of “Somali-American youth from the Minneapolis area being radicalized and recruited to fight overseas for al-Shabaab.” He interviewed Omar Jamal, a Minneapolis-area Somali community activist, and another member of the community. They provided him with the name of Abidifatah Isse and informed him that he had been “arrested and indicted as part of the ongoing federal investigation into Somali-American youth from the Minneapolis area being radicalized and recruited to fight overseas.”

Isse was indicted on February 19, 2009, for “material support to terrorists and conspiracy to kill, kidnap maim and injure.” The charges stemmed from his efforts to travel to Somalia and fight with al Shabaab.

An affidavit by Special Agent Kevin Shirley in the Justice Department’s Office of the Inspector General in Chicago explains:

…Isse [was] a resident of the State of Washington who spent several weeks traveling to and approximately one week actually constructing on Al Shabaab training camp in Southern Somalia before departing the country was arrested in Seattle on February 24, 2009, and transported to Minneapolis, where he was detained. At the time of his arrest, Isse was preparing to fly to Tanzania. Isse entered a guilty plea on March 4, 2009, and began cooperating with law enforcement. Isse’s removal hearing from Seattle, arraignment in Minneapolis and guilty plea were all held in closed courtrooms by permission of the Deputy Attorney General and order of the court in order to maximize Isse’s utility as a covert operative, as well as to protect his safety and that of his family. During his detention Isse gathered evidence at the direction of law enforcement through recorded phone calls and the use of internet-based communication services.

No other individuals who had been indicted or who happened to be covert operatives were named in Levine’s story, which was published on July 2, 2009. However, he did mention that at least three individuals had been indicted by a grand jury and that detail was sourced to someone in “law enforcement.”

On July 7, 2009, Judge James Rosenbaum, who had been handling the indictments in Minneapolis, wrote a letter to Attorney General Eric Holder requesting that this leak be investigated:

As you know, this case involves questions of international terrorism. From the time it was assigned, my staff and I have been under extraordinary secrecy restraints in its handling. We have also been given to understand additional related matters may be forthcoming. These security interests have led to FBI background checks on my staff, preliminary to obtaining certain classified materials and to extraordinary protections for document and electronic materials.

With these concerns as a backdrop, you can imagine my dismay when I learned, on Thursday, July 2, of Fox News’s internet channel story outlining the content of the case assigned to me, as well as information concerning a Grand Jury investigation and forthcoming related indictments. The Fox News story claimed unidentified law enforcement officials as the information source.

I am concerned about potential deleterious effects on the matter pending before me, as well as any cases which may arise in the future. There are other issues and potential grave dangers, I need not outline, which may arise in the local community affected by these stories.

Holder assigned the Criminal Division’s Public Integrity Section to conduct an investigation into the leak.

Shirley’s affidavit describes the two other Somali-Americans, who had been indicted: Kamal Said Hassan and Salah Osman Ahmed.

Hassan was charged with “material support” for terrorism offenses and arrested in Yemen after he returned from Somalia “following recruitment and multi-month military training by al Shabaab.” He agreed to help law enforcement as a covert operative to “identify and gather evidence against individuals in the Somali community who were recruiting Somali youth to fight for Al Shabaab.” Ahmed also traveled to Somalia and helped construct a training camp, but when he returned to the US, he was not arrested immediately. He was indicted under seal and was not arrested until later on July 11.

Although Hassan and Ahmed were not named in the news report, officials still sought to hold “law enforcement” sources responsible for revealing information on them. They also cited these two individuals in their effort to force Levine to reveal his confidential sources.

According to Shirley, officials investigating soon realized that the “leaked information” would likely have been “disseminated throughout vast intelligence networks via frequent intelligence briefings and email blasts.” The “universe of individuals” who knew the information was “enormous.” They could have been law enforcement special agents in the Green Arrow and Rhino task forces involved in undercover operations in Minneapolis.

Officials reviewed over 1000 emails from unclassified and classified email accounts were reviewed, but they were unable to uncover any leads. They “identified approximately 243 phone calls between FBI land lines/cellular telephone numbers and phone numbers associated with Levine” and an individual, whose name is redacted in the affidavit. But this didn’t produce anything helpful to the investigation because the person worked in a “press capacity,” and contact with a report was not surprising or prohibited.

Witness interviews produced no leads, and, ultimately, the Justice Department had to contact Levine for a meeting. The meeting did not yield the desired information. Levine claimed not to be able to remember what information came from what individual. He did not know who exactly were his sources for the July 2, 2009, story. He had written a series of articles on Somali-Americans being recruited for terrorism and maintained it was hard to know what sources had confirmed certain specific details for the story.

On December 15, 2010, Holder issued the grand jury subpoena. The government sought information “regarding the identities of his law enforcement sources and the nature of their communications regarding the July 1, 2009, story.” It specifically demanded “any and all notes, in any form,” which had been drafted while reporting this story.

Levine moved to quash the subpoena [PDF] and argued it violated his “federal common law reporter’s privilege.” He also argued the subpoena was “oppressive and unreasonable” under a federal rule for criminal procedure and that the subpoena was “an unconstitutional violation of the First Amendment guarantee of freedom of the press.”

Jay Darden, counsel for Levine, stated in an attorney proffer on March 8, 2011:

…[t]he universe of the people that Levine was in contact with about the Somali topic numbered in the dozens; however, the group from which he could have gathered the information contained in the article was between five and twelve people. Levine possessed some noted that pertained to the series of the Somali stories, but not specifically about the July 1, 2009, article. According to Darden, there was no way to refresh Levine’s memory of what sources were used for the story. Darden also stated that there were no confidentiality forms or agreements between Levine and the sources Levine used for the story. Levine could provide the government with the names of the people he talked to for the article, but could not confirm “who said what to him.”

The government maintained that the leak had damaging effects. As Shirley described in his affidavit, “An investigative team [had] planned to record a meeting between Hassan and a possible recruiter in the Somali community. However, the team was forced to reevaluate its planned operation because the leaked information—specifically the revelation that at least three individuals had been charged—posed a risk to Hassan’s safety.”

Yet, Shirley admitted in the affidavit that the meeting took place and the only harm seemed to be that agents became convinced the reason they were not getting their “possible recruiter” to talk more was because of Levine’s story.

Ahmed, who had not been arrested yet, was also placed under 24-hour surveillance because agents were afraid he would flee. But there is no evidence in the affidavit suggesting he knew the story from Levine revealed he was facing some threat from law enforcement.

Levine actually chose to be rather candid about how he would get his “law enforcement” sources to speak to him without putting them at too great of a risk:

…As I reflect back on the July 2 news report today, I believe the words in the news report referencing the law enforcement sources – such as “told” and “said” – suggest a more direct form of communication than occurred during my conversations with them. I believe that my sources likely ended their conversations with me believing that they had not revealed to me anything they were not authorized to reveal, even though I ended my conversations with them having gotten the confirmation I needed for the July 2 news report…

Levine explained how it was important as a reporter for him to no disclose name or information that had been provided to him “in confidence.” He mentioned if he did it might prevent him from “forming relationships with new sources.”

He further stated:

…I also believe that it would be particularly damaging to reveal the names of a list of five possible law enforcement sources in order to provide information the government asserts would assist its investigation of a smaller number of those sources. As an initial matter, disclosing the names of those five sources would destroy my relationships with those sources, and in particular would destroy my relationships with those who are not under investigation by the government. There is no justification for my revealing their names, and having betrayed their trust, I would not be able to regain it and use them again as confidential sources. The damage, however, would not be limited only to those five sources whose names I would have disclosed. The disclosure would jeopardize my relationships with other current sources as well as future sources, including sources from the Department of Justice and the Department of Homeland Security. Based on my experience as an investigative reporter who uses government sources, a government source would be less likely to provide me with information if he or she believed that their identity might be revealed because I was ordered to turn over a larger universe of sources in connection with a grand jury investigation, especially when that source is not a target of the investigation…

Additionally, Levine pointed to other news stories published before his story to show that there had been reporting on grand jury investigations into Somali-Americans. His story was not the first to alert the community to possible federal agents or government informants, who were investigating and targeting people suspected of having an intent to engage in terrorist activity.

In fact, The New York Times published a story, “A Call to Jihad, Answered in America,” which had a graphic accompanying it that listed a “number of Somali-Americans from the Minneapolis area who had traveled overseas to enlist in al-Shabaab, and who had then decided to return home to America. One of the men listed on the graphic was Salah Osman Ahmed.”

“We do not know if, like Mr. Levine, The New York Times or its reporter received a subpoena in this matter,” Levine’s defense stated.

Judge Royce Lamberth of the DC Circuit Court ruled [PDF] on July 25, 2011, that the subpoena was not “unreasonable or oppressive” and that the “government’s interest in enforcement of the subpoena is far from modest.”

“Given that Levine can narrow the field of potential leakers down to five individuals, there is no doubt that the information sought is critical to the grand jury’s investigation,” Lamberth added. “The fact that no subjects sought to evade law enforcement, while fortuitous, does not negate the fact that the government had to alter its conduct.”

Lamberth also refused to issue a ruling that would “encourage journalists seeking to avoid compliance with grand jury subpoena to make the same claim—that is, that they simply cannot recall the sources they used for a given story.”

“The court will not go down the road, particularly where legitimate grand jury investigations are at stake.”

Despite how legitimate the court found the government’s subpoena against Levine to be, the Justice Department still withdrew the subpoena.

If it was so legitimate to attempt to force a reporter to reveal his confidential sources, why didn’t the Justice Department keep fighting Levine? (After all, it has continued to wage a war against New York Times reporter James Risen for his confidential sources.)

Earlier this year, Deputy Attorney General Jim Cole claimed it was not the policy of President Barack Obama’s administration to jail reporters. Levine, who is now with ABC News, followed up, “So then why issue subpoenas to reporters? What’s the point of it if there’s no intent to follow through to the end?”

Cole answered, “Just because you issue a subpoena doesn’t mean you’re jailing anybody. Sometimes people provide information, so it’s the legal process and we go through the legal process.”

The “legal process” is used to make reporters feel like Levine did, like they want to throw up and like their careers are going to be over for good. It is used to coerce reporters by making them suffer for fighting the government in its effort to pursue information in leak investigations, even when leaks have not had serious impacts and the government may decided to abandon an investigation entirely.

Cases like Levine’s show that any reporter may be able to survive a subpoena and convince the government to back off. However, whether they survive depends on what they are willing to endure and sacrifice.

Levine had his professional career as a journalist disrupted for nearly three years. Risen has suffered for over six years now. There are probably other journalists, who have been pressured in secret and have yet to become known.

All Levine or Risen ever did was dig into what government was really doing when engaged in efforts to protect so-called national security. For that, they became targets.

Photo by the U. S. Dept of Justice

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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