A month before the terrorist attacks on September 11, 2001 and all of the increased government secrecy that has ensued, the Justice Department secretly seized the home telephone records of respected investigative reporter and deputy bureau chief of the Associated Press in Washington, John Solomon. And earlier this year, the FBI opened and confiscated his mail. Center for Public Integrity executive director Charles Lewis recently interviewed Solomon about it.
Charles Lewis: There were news accounts that in August 2001 your home phone records were subpoenaed secretly by a federal grand jury. Can you give a little context?
John Solomon: Sure. I was working on a series of stories about what the government knew about Senator Robert Torricelli’s ethics misdoings and the body of evidence that was available [going] back to the early 1990s. I found that the U.S. Attorney’s Office in New Jersey had evidence that he had taken, basically, a loan guarantee from a donor (and long-time friend), bought some stocks and made a killing on it—a $144,000 profit. He repaid the loan, including less than $1,000 for the guarantee. Torricelli took this donor on a series of government-sponsored trade missions and hooked him up all across the world with the imprimatur of Congress. The U.S. attorney whose office declined prosecution was nominated by Torricelli to become a federal judge. She became a federal judge. The person he nominated to take her job then came into possession of new information. They intercepted Senator Torricelli on a wiretap talking to some known mob folks just before the 1996 Democratic convention in Chicago, when they were basically talking about fundraising. I obtained excerpts of the wiretap, which would be covered by Grand Jury secrecy, wrote that story, and again the U.S. attorney declined prosecution. Torricelli had recommended that U.S. attorney for his job as well.
CL: Good Lord!
JS: Within five days of the second story running — the wiretap story — the U.S. attorney in New York, Mary Jo White, a leftover appointee of President Clinton, went to the Justice Department and asked for permission to subpoena my home phone records. Attorney General Ashcroft was recused from all matters involving Torricelli because he served with him in the Senate. Deputy Attorney General Larry Thompson had just been confirmed and had not yet started. So current FBI director Bob Mueller, then an assistant attorney general, was the acting attorney general for the matter and signed the warrant. They never informed the news media, even though the Justice Department guidelines require that you inform the media in advance of getting a reporter’s records or notebooks and that you enter into a period of negotiations to try to protect the First Amendment and Fourth Amendment privileges. They simply went and got my home phone records. The law required that they inform me within 30 days. They signed two extensions to 90 days. The second extension brought it just past the point when Mueller’s confirmation as FBI director had been completed and the Senate confirmed him. So the Senate never knew he had signed a warrant for a reporter’s phone records. Then they sent me a belated letter saying they had taken my phone records. The Justice Department has indicated to us that they were trying to identify the source of my stories. They were actually trying to stop the publication of a story [about Senator Torricelli] that I was working on and tried to find out who I was talking to and cut off the flow of information. So it does get into the issue of prior restraint, along with First and Fourth Amendment issues. There was quite a firestorm in town about that time and then September 11th happened. We backed off entirely because we didn’t think it was the right thing at the time to pester the Justice Department. Later we went back after them and began investigating the issues. One of the things we found out was that the Justice Department was preparing a media onslaught to try to counter-attack the Associated Press and the media. We have evidence that they violated the Privacy Act and shared information and my phone records with people who they wanted to go on TV to try to impugn me.
I was also working on a second set of stories more recently concerning what the Bush Administration knew before 9/11. The Associated Press was the first news organization to report the existence of the “Phoenix memo,” the famous FBI memo that said that some Arab pilots are in U.S. flight schools and they all seem to have terrorist connections. That occurred three months before the terror attacks. We also broke the story of Coleen Rowley’s memo about [Zacarias] Moussaoui. This was before 9/11. In that context, we had shipped to us from the Philippines a document that was introduced in court records back in the mid-1990s, a public document. It was an FBI lab report that was issued in connection with one of the terror investigations in the mid-90s, the “Bojinka Plot,” which was a plot to blow up 12 airliners simultaneously out of the Philippines, South East Asia. One of the masterminds of that plot is now a household name, Khalid Shaikh Mohammed, who we know was the mastermind of 9/11. This report was sent to me by the AP bureau in the Philippines. When it arrived in the United States at the FedEx depot in Indianapolis, the U.S. government opened my mail and called the FBI. The FBI took the report and never told anyone. Fortunately we had sent two or three versions of the report, and one of them made it to me through New York. The FBI decided to keep [the other report] without a warrant, as required under the processes of the Justice Department, actually by law, the Fourth Amendment. FedEx originally told us that it must have fallen off a truck. We eventually found that the FBI just decided to put it on a shelf and hopefully we wouldn’t notice and then we wouldn’t report what was in it. The FBI did conduct an “office of professional responsibility investigation” that concluded that several agents acted improperly and most likely violated my First and Fourth Amendment rights. They sent a high-level delegation of FBI officials, four senior FBI officials, to the AP to deliver the report to me 10 months after it was mailed. They’ve said that the agents involved will not be personally disciplined but their poor performance on this matter will be considered as part of their annual appraisals.
CL: Do you think they found the name of your source when they got your home phone records? Did it worry you?
JS: I’m kind of constrained from talking about what I think they may have found… for many reasons. One is I don’t want to let them know what I might know. There is no doubt that they obtained a substantial block of my phone records. The government, I believe, has acknowledged in conversations with our lawyers that they understood I did a lot of my journalism at home. There is no indication that anyone has ever been punished as a result of the grand jury investigation into the leaks. The only thing that we have been told by the Justice Department is that the long-term practice of the department, which is to subpoena reporters as an absolute last resort, when there’s no other way to do a leaks investigation, is no longer its modus operandi. If you remember when the Ken Starr leaks investigation occurred and Charles Bakaly, a spokesman, was prosecuted and eventually acquitted, Ken Starr put all of his prosecutors on lie detectors and put them under interrogation, took all of their phone records to try to figure out who leaked information rather than invade the privacy of a reporter. The Justice Department now says that that may no longer be convenient; it might be too time consuming to do it that way; and that they might opt, at their pleasure, to just simply go after the reporter’s phone records. [They said it in] a letter from the assistant attorney general to Senator Grassley that was put out about a year ago. I’m not quite sure it’s gotten the public attention it deserves. I don’t think the profession has realized the importance of the change of standard that has occurred as a result of my case.
CL: What about the profession? How good has the profession been about this? I mean, beyond AP itself, did Society of Professional Journalists, Investigative Reporters and Editors, the Reporters Committee—did they come to your aid? JS: It was just a tremendous pleasure to realize that as busy as we all are in the profession and the Web world, where we have all sorts of deadlines all day long, people really cared about this. I got hundreds of emails of support, literally, when we went to the Justice Department, it was not just the AP, but an entire coalition of news media organizations, the largest organizations in the world—the New York Times, Washington Post, Reporters Committee for the Freedom of the Press. People wrote editorials, op-ed pieces, went on TV. And I think that the uproar was really building, and we have reason to believe that the Justice Department was so concerned that this was not going to go away and that it was going to stick to the department as a lasting issue that they were beginning to strategize when the 9/11 attacks occurred. The FBI has really done the right thing, I think, in the second case. They basically didn’t waste much time defending it, basically said this was stupid and it was done at a low level.
CL: On the second case, were they looking for your mail? Or was it just something that was part of …
JS: Their position, and all the evidence that we’ve gathered, is that it was a random search. For almost 200 years now, there was a law called the Border Search Authority; it allows the Customs Service to randomly open packages coming into the United States and search them for anything that might harm the national security. And for years, laundered drug cash has been seized this way. They don’t need a warrant to open it. Once they open it, if they decide it is something of a criminal nature, the law obligates them, before they transport it to custody or stop the package from going to its rightful owner, to obtain a warrant. That’s one of the things they did not do in my case. They simply just took the package and stuck it on a shelf. One of the good things the FBI has promised us they’ll do, and we’ll hold them to it, is that they’re going to send a letter to all their employees saying that anytime they come across an issue that involves the news media, they have to realize it is not just the traditional criminal issues—there’s the First Amendment—and they should take extra caution and consult particularly with superiors about any First Amendment or Fourth Amendment issues. That letter, we believe, will be going to all FBI employees. The other thing is that they’ve agreed to have an open dialogue, bringing all the law enforcement agencies together, FBI, customs, justice, and anyone else we can get involved, to have a dialogue with the news media, to come up with some standards to avoid this in the future. So, on the second package, there’s really been a tremendous amount of success. I think the FBI very quickly understood that this wasn’t what they intended to do.
CL: Did the office of professional responsibility report talk about the people who were inappropriately getting these records and trying to spin things publicly about you?
JS: We don’t have any evidence in the first case that it was ever handled by the office of professional responsibility or the inspector general; it’s only the second one that the FBI did. We have never gotten to the bottom of the information in the first case. We have a person who attended one of these meetings and was approached to go on TV, I’m not at liberty to share her name, but provided significant information as to what was going on and was an eyewitness to some of the things that happened.
Several people were so afraid to meet with me thinking that my phone was still tapped or bugged, although my phone was never tapped or bugged as far as we know. It was literally the sort of fear that people with sensitive jobs that had long talked to me and wanted to provide useful information were chilled at the prospect.