When, in 2006, the website The Smoking Gun released a secret CIA memo documenting prisoner organizing strategies at Guantanamo Bay, the FBI took notice. Now the site has posted details of the ensuing 44-month-long investigation, offering a timely glimpse into the black box of a Department of Justice leak prosecution.
And The Smoking Gun got lucky. Over the course of the FBI's hunt, code-named "Stubborn Ways," 43 different people were interviewed, in locations stretching from New Mexico to Boston to Saudi Arabia. After the investigation narrowed to one person who was then exonerated — a woman from Virginia who requested and passed a polygraph test — the FBI began the process of seeking a subpoena to force the editor of the site to testify before a grand jury that had been empaneled in the case in Alexandria.
But that process stumbled, in part because the FBI didn't appear to be clear on how such a subpoena applied to a website. In one report, an agent describes the lack of clarity about the extent to which The Smoking Gun was covered under media protection laws.
…postings to a website have not yet been deemed to carry the same protections afforded to the media. Postings to a website/blog are considered an open question at DOJ and that he will asking [sic] DOJ's OEO for a determination on this matter so a subpoena can be requested.
"OEO" is the Department of Justice's Office of Enforcement Operations, which "reviews all federal electronic surveillance requests," in the words of its website. Depending on the status of The Smoking Gun as a media entity, the process of getting a subpoena would either be limited by certain restrictions — as it was (relatively) in the Associated Press case — or not.
The question posed by the agent — is a website a media organization? — is still largely an open one, as the Electronic Frontier Foundation points out. In the absence of a federal shield law, individual states offer differing levels of protection to sources used to produce articles for online publication.
There was another option once the case went to the OEO for review: it could decline to authorize a subpoena at all. That's what it did. Without the ability to ask The Smoking Gun under oath about its sources, the FBI closed the case in early 2010. It was opened in late 2006.
In a number of ways, The Smoking Gun's case differs significantly from the Associated Press'. One is the significance of the leak; at the time, it generated some press attention, but not a great deal. Another, as noted, is the type of institution being investigated. A third is that the bulk of the "Stubborn Ways" inquiry occurred during the administration of George Bush, not that of the much-more-investigation-happy Obama Department of Justice.
One thing that we can learn: at some point, perhaps as soon as six years from now, we may know the full details of the investigation into the Associated Press. Or most of it, anyway. Of the more than 1,000 pages of documents in the FBI's case file, over 600 contained retracted information. Over 350 weren't provided after The Smoking Gun's FOIA request at all.
Photo: Guantanamo prisoners hold up a sign asking for freedom. (AP)
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