'Post' Did Not Feel It Had to Return Classified Document

By: Joe Strupp Although The Washington Post agreed to return to the FBI a classified government document obtained in 2004 by one of its reporters researching federal investigations into potential terrorists, the newspaper actually maintained that it had the right to keep the letter and report on its contents if it chose, E&P has learned.

According to a copy of a Post letter to FBI officials on Dec. 2, 2004, obtained by E&P, the newspaper informed investigators that it was willing to return the document following an FBI request two days earlier. But it also pointed out that "we do not agree that we are under any legal obligation to return the document in question or to refrain from reporting on the contents. However, we have decided to return all three copies of the document in our possession."

The Post letter also asks investigators "to preserve this letter and its enclosures should there arise any need in the future to confirm what was one in our possession and later returned at your request."

In today's climate of increased government and investigative demands for reporter sources and related documents, which had already begun in late 2004--and has prompted news organizations to fight requests for such information--questions will no doubt emerge about why the Post would agree to return documents it believed it had the right to keep.

The Dec. 2 letter, written by Post attorney Eric Lieberman, was in response to a Nov. 30, 2004 letter from FBI special agent Beverly Fetty to reporter David Ottaway. Fetty's letter cited Ottaway's possession of "a classified and privileged U.S. government document that was inadvertently disseminated without authorization.

"In the course of our investigation, we determined that a copy of the classified document was provided to you. We also determined that you are not authorized to possess the classified document or have access to the classified information contained in the document," Fetty's letter continued. "Accordingly, we request that you provide all copies of any documents or communications you may have prepared using classified information taken from the classified document."

The letter went on to warn that the Post "should note that any further review, disclosure, discussion, retention and/or dissemination of the classified document or the classified information contained in the document may be a federal crime."

The Post reported in a story today that the document was related to the National Security Agency investigation of potential terrorist groups, particularly the al-Haramain Islamic Foundation. Al-Haramain filed suit this week against the Bush Administration, claiming it was the target of secret domestic eavesdropping, the Post reported.

While the Post did not disclose the specific contents of the classified document, it revealed that Ottaway received it from an al-Haramain attorney in 2004, and later that year received the FBI letter demanding it be returned.

The Post story today reported that the paper agreed to return the document because it "did not directly aid Ottaway's reporting." Executive Editor Leonard Downie Jr. stated in the same story that the document came to the paper's attention before recent disclosures of the government's secret domestic eavesdropping program. "Without that knowledge," he was quoted as saying, "the document provided no useful information."

But the Post story did not indicate the paper's position, in that Dec. 2, 2004 letter, that it had the right to keep the document and report on it if it chose. Neither the story nor the Post's response to the FBI explained why the paper was willing to return the document when it believed it was not legally required.

Downie could not be reached for comment because he is out of town, while Lieberman declined comment. Calls to Managing Editor Philip Bennett were not returned. Ottaway declined to comment, but issued a statement that said he returned the document "after consulting with Washington Post editors and lawyers, and concluding that it was not relevant to what I was working on at the time."