Donald Sachtleben pled guilty to leaking information on a “disrupted suicide bomb attack on a US-bound airliner by the Yemen-based terrorist organization Al Qaeda in the Arabian Peninsula (“AQAP”) and the recovery by the United States of a bomb in connection with that plot in April 2012.” Sachtleben was also subject to a parallel investigation for child pornography and pled guilty to charges stemming from that investigation.
Sachtleben previously worked as a Special Agent Bomb Technician and had apparently worked major cases involving terrorist attacks. While an FBI employee, he had a Top Secret security clearance, which granted him regular access to classified information on the FBI’s activities and other activities of the intelligence community.
He could serve forty-three months in prison for the leak if a federal judge accepts the plea. According to the New York Times, that term would be the longest ever served in a federal civilian court case.
The guilty plea is notable because it stems from the leak investigation that touched off allegations of scandal when it became public that the Justice Department had seized phone records from “more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012.” There is no way of knowing the “exact number of journalists,” who used the phone lines during this period, however, “100 journalists work in the offices whose phone records were targeted on a wide array of stories about government and other matters.” Home phone and cell phone records of individual journalists were collected as well.
Officials chose not to notify AP before collecting information and claim they did not have to provide notice, citing an exemption in federal regulations. AP only found out that records had been secretly obtained through a letter from US attorney, Ronald Machen, which the AP’s general counsel, Laura Malone, received on the afternoon of May 10.
AP executive editor, Kathleen Carroll, said on MSNBC’s “Morning Joe,” it was “distressing that the Justice Department felt the need to seize our records and not tell us about it.” It is “distressing to think that, without our knowledge, someone is looking at phone calls that we make in the course of daily business.”
When asked about the chilling effect this could have on sources, outspoken government employees or whistleblowers, she stated, “I’ve been in this business more than thirty years, and our First Amendment lawyers and our lawyers inside the AP—and our CEO is also a well-known First Amendment lawyer—none of us have ever seen anything like this.”
CEO Gary B. Pruitt wrote in a letter to the Justice Department, “These records potentially reveal communications with confidential sources across all of the news gathering activities undertaken by the AP during a two-month period, provide a road map to AP’s news gathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.
Now, the Justice Department would have the public believe that the broad seizure of records was necessary to secure a guilty plea from Sachtleben. The press release from the Department states:
Sachtleben was identified as a suspect in the case of this unauthorized disclosure only after toll records for phone numbers related to the reporter were obtained through a subpoena and compared to other evidence collected during the leak investigation. This allowed investigators to obtain a search warrant authorizing a more exhaustive search of Sachtleben’s cell phone, computer, and other electronic media, which were in the possession of federal investigators due to the child pornography investigation. [emphasis added]
An unnamed federal law enforcement official told POLITICO, ”The phone records were necessary to identifying [Sachtleben] as the suspect. Yet, this same official also acknowledged, according to the report by Josh Gerstein, that the FBI already had in its possession evidence linking him to the leak. Investigators in the separate child porn probe had his computer, which contained classified information. But they didn’t search it for national security secrets because that wasn’t relevant to that inquiry, the official said.”
There are text messages in the criminal complaint between Sachtleben and an AP reporter (“Reporter A”). These were apparently obtained after the FBI was able to secure a search warrant.
All of the above would appear to justify the broad seizure except there are a few issues.
First, as suggested over at Emptwheel.net by BMaz, who briefly described the implications of the collection of records on AP’s “top reporters.”
…[T]he phone and email collection was not just metadata, but as the above described paragraphs make clear, full content too. Since these subpoenas were after the fact, that means the vaunted NSA storage database was likely used. How many “hops” were made off of the AP lines? (Remember, 3 hops off of one person making 40 calls can be 2.5 million people).
Frankly one hop off the lot of the AP phones could yield a massive number of targets, and the most precious ones to First Amendment journalism…
The seizure of records was not targeted to only sweep up the communications that would have been relevant to the investigation.
The criminal complaint for “trading images of child pornography online in September 2010″ was filed in May 2012. The charges in the complaint were a result of an “extensive investigation” into Sachtleben that included a forensic search of his “computer equipment and email accounts,” according to the Justice Department.
Agents would have been combing through Sachtleben’s equipment and email before the seizure of AP’s records. Did agents really not come across any evidence while conducting a search of his computer that suggested he not only was trading child pornography but also had leaked classified information? Did his name really only appear after they seized records?
The news of Sachtleben’s plea would appear to vindicate the Justice Department, particularly Deputy Attorney General James Cole, who took a lot of heat for signing off on the decision. This development, along with the revised guidelines for news media policies, would make it seem like reporters and press freedom groups have no reasonable basis for concern. However, the Reporters Committee for Freedom of the Press’ (RCFP) letter to the Justice Department sent on May 14, 2013, still highlights issues that do not go away because of this guilty plea.
The subpoena for information was not narrow in scope. The Justice Department had an obligation to inform and negotiate with AP unless they believed that would “pose a substantial threat to the integrity of the investigation.” The Justice Department did not balance interests—the interests of law enforcement and the interests of freedom of the press central to news gathering.
Though the Justice Department issued new guidelines for news media addressing these issues, RCFP has pointed out that the Justice Department is still able to seize any “relevant” records, not only records “essential” to the investigation. That gives the government broad authority to collect records of journalists.
While the Justice Department may have needed some of the phone records, it remains unclear what effort the Justice Department undertook to obtain the information from alternative sources before seizing the broad array of journalists’ records.
This is why there needs to be a federal media shield law, one that establishes a process that forces the government to argue in court that it should be authorized to seek records for any leak or other criminal investigation it believes it needs to successfully prosecute offenses.
Additional Thoughts on Sachtleben’s Case
Sachtleben pled guilty to violating the Espionage Act and, like Pvt. Chelsea Manning, the government will secure a conviction by simply pointing out that he violated non-disclosure agreements and the information was classified and its release could have been potentially damaging to the United States. It does not mean there was any damage. In fact, although the case involved the exposing of a double agent that may have put intelligence operations at risk, it does not seem that Sachtleben leaked information that exposed that double agent’s identity. Someone else not charged and prosecuted was responsible for disclosing that sensitive information.
The eight previous leakers who were charged with violating the Espionage Act under Obama are: former NSA contractor Edward Snowden, former NSA employee Thomas Drake, former FBI linguist Shamai Leibowitz, Private Chelsea Manning, former State Department employee Stephen Kim, former CIA officer Jeffrey Sterling, former CIA officer John Kiriakou and former government contractor James Hitselberger. [Hitselberger's leak was not a leak to media but a leak to a library or archive. Oftentimes, he is excluded in media coverage of Obama's prosecutions of leakers.]
The Espionage Act is a World War I-era law that was never intended to be used as a law to prosecute leaks. Yet, in Sachtleben’s case and previous cases, the Justice Department has transformed it into a de facto Official Secrets Act, a law against leaks which the Congress has never passed.
Currently, there is no process for a leaker to argue that he or she had “good faith” or good intentions when providing information to a media organization. That creates pressure for defendants to plead guilty to Espionage Act charges and not fight them by going to trial.