Voices
Who’s Tracking Your Calls?
And how far will the Department of Justice go to burn a leaker?
Reporters, like retired cops, always have a few ghosts lurking in their file cabinets, some riddles that, for lack of time or industry, they were never able to solve. I came across one such hobgoblin recently while cleaning out files concerning a story I wrote last summer for The American Lawyer. The article described how a former attorney at the Department of Justice named Jesselyn Radack was locked in a dispute with her new employer for failing to cooperate with a government investigation into e-mails she supposedly leaked to Michael Isikoff, a Newsweek reporter, after she left the department.
Radack had been an ethics specialist at Justice. She advised that FBI agents not interview John Walker Lindh, the “American Taliban,” without his lawyer being present. When her advice was ignored and the e-mails containing her recommendations were removed from Lindh’s file, Radack resigned from the department. A few months later, after some of those same e-mails showed up in an article by Isikoff, Justice launched an investigation into whether Radack was the source. When Radack refused to cooperate with investigators, her new employer, the New York-based law firm Hawkins, Delafield and Wood, fired her.
My article for American Lawyer centered on the dispute between Radack and her firm. But in the course of reporting the story, I obtained a document that raised a separate and creepy issue: Had Justice traced calls from Isikoff to Radack? The document in question was an October 2002 e-mail from Hawkins Delafield’s management committee to Radack’s lawyer, Frederick Robinson. The e-mail cited conflicting statements Radack had given to government investigators about her contacts with Isikoff, as well as a detailed log of their telephone calls. A few things about the phone log immediately caught my eye. First, it included the date and time of two calls Isikoff had made, not to Radack, but to lawyers at the Department of Justice. How would Hawkins Delafield know that? Second, six other phone calls it detailed came from Isikoff to Radack, not the other way around. How had this information been obtained?
As you might expect, the government had little to say to me when I called, only that the investigation was continuing and they wouldn’t be commenting for my story. Hawkins Delafield was similarly mum, citing their dispute with Radack. The firm did make clear, however, that based on what the government told it, the management committee was convinced that Radack was Isikoff’s source; it would not employ a known leaker because the firm did most of its business with government entities. The firm’s sympathies clearly lay with the government; the e-mail made evident that the firm was receiving information from investigators. The question then was: Where was the government getting its information?
Guidelines adopted by the Department of Justice after Watergate establish a clear procedure for subpoenaing a journalist’s phone records. First, the government must take all other reasonable steps to obtain the desired information. Once it has exhausted those options, the department may seek a subpoena of the reporter’s phone records from a court, but must notify the reporter so that he may oppose the request. Under extraordinary circumstances, and with the direct authorization of the attorney general, federal agents may subpoena a reporter’s records from the phone company without the reporter’s knowledge, but are still required to inform the reporter within forty-five days that it has done so. At least that’s the way it’s supposed to work.
When I called Isikoff, however, he had received no such notice and had no idea his calls to Radack had been traced, a prospect that understandably alarmed him. When I pressed the government for an explanation, Paul Martin, a spokesman for the Office of Inspector General, which is handling the Radack inquiry, replied, in part, that agents had “conducted the investigation properly and in close consultation with department attorneys.” Stonewalled and out of time, I let the issue pass with only a brief mention in my piece. But a short time later I talked with Mark Marchand, a spokesman for Verizon, about the company’s policy on tracing calls for the government. He said that he knew nothing about the Radack case, but that Verizon did not disclose customers’ phone records absent a court order or a subpoena, and even then it generally informed the customer. “It’s been a basic tenet for a hundred years that customers have an expectation of security in their calls,” Marchand told me. But just when I thought I might be on the verge of a true Woodward-and-Bernstein moment, Marchand said something that surprised me (though it would be no surprise, I later learned, to aficionados of detective shows): the phone company keeps computer files of all local calls for several months. Local calls? I asked him if that meant someone, say a law firm, could obtain records of all local calls into its office over a given period and then search for specific incoming phone numbers. Marchand confirmed it was possible, though he said going through files would be very labor-intensive and very expensive. “We’d expect to be paid for that,” Marchand told me.
So who traced Isikoff’s calls? In the final analysis it really doesn’t matter whether the Justice Department did, and shared the information with Hawkins Delafield, or whether the firm did, and shared the information with the department. Either way the government got a record of Isikoff’s calls to an important source on an important story, without either party’s knowing about it. It’s a quick lesson on how far an irate government may go to burn your source. So remember, even on a local line, let’s be careful out there.
Enjoy this piece? Consider a CJR trial subscription.
