First, the operation that led to the discovery of the Undie Bomber II threat was not initially a U.S. or CIA operation. It was a an operation by the Saudis, with assistance from Britain’s MI6. The operation involved a Yemeni native who had become radicalized in Great Britain and was then turned by the Saudis. He agreed to infiltrate AQAP in Yemen and allow himself to be recruited as a suicide bomber. He reported to the Saudis, and the Saudis shared his information with the CIA. It was his information that led to the U.S. drone strike in Yemen on Sunday May 6 that missed bombmaker al-Asiri but took out AQAP’s Fahd al-Quso, who was much wanted by the U.S. It was this informant who tricked AQAP into believing he was a willing suicide bomber, and who got AQAP to let him have the new device (which he was supposed to detonate on an airplane.) The informant did not give the bomb to the CIA or the U.S. He gave it to the Saudis who gave it to the U.S.

Almost all the articles report the same thing. To repeat: It was a Saudi undercover operation, in which they turned an operative with the assistance of MI6. The Saudis sent him to infiltrate al Qaeda in Yemen. He got AQAP to trust him and give him the device, which he in turn gave to the Saudis, who gave it to the CIA. The Saudis got him safely out of Yemen, but his cover was blown. The leak of the information about his role (even though his identity wasn’t disclosed) forced the shutdown of the operation and ended the usefulness of this informant. One British paper reported:

Without the excited U.S. news coverage, the agent, who reportedly did escape safely once word was flashed about the impending AP leak story, could have still been providing further intelligence on the location of al Qaeda leaders in Yemen, which resulted in only one successful drone strike before word got out, resulting in the explosive demise of senior leader Fahd al-Quso.

.... "Mike Scheur, the former head of the CIA's Bin Laden unit, said the leaking about the nuts and bolts of British involvement was despicable and would make a repeat of the operation difficult. 'MI6 should be as angry as hell. This is something that the prime minister should raise with the president.'"

Other papers, writing after the AP leak, described the informant’s history.

The agent, thought to be a jobless Arab in his 20s, was radicalised in Britain and at least one other European country. While visiting relatives in Saudi Arabia he was recruited by intelligence officers.

Although he has Saudi roots, the fact he had been given a British passport made him an attractive prospect for al-Qa'ida in the Arabian Peninsula as it planned its latest attack on the US. The agent convinced the group he was ready to die for the cause by carrying out a suicide bombing mission on a transatlantic passenger jet. His weapon was to be a sophisticated bomb, hidden in his underwear. It was designed by AQAP's master bomb-maker, Ibrahim Hassan al-Asiri, who sent his brother to his death with explosives hidden in his body. The undercover agent escaped Yemen with the bomb and a wealth of intelligence material.

Here’s more on the informant, from a news article quoting someone named Mustafa Alani, director of the Gulf Research Centre and an associate fellow at the Royal United Services Institute:

The new "recruit" was a double agent. He made a convincing would-be suicide bomber. Although born in the Middle East, he spent several years in London and was thought to have dropped out of a British university, Alani said. ``He was involved in (extremist) activities in the UK,'' said Alani, who says he has close security contacts in Saudi Arabia. "But he later changed his mind."

It was during his visits to Saudi Arabia that his potential as an intelligence asset was recognised. About a year ago he moved to Yemen and enrolled at an Islamic or Arabic language school in Sanaa, the capital, in the hope of being “talent-spotted” by AQAP. He was accompanied by a handler at the school, who briefed Saudi intelligence on a daily basis.

Within three months, Alani said, the organisation had taken the bait. “He received instruction on how to avoid detection at the airport, how to behave,” Alani said. “He was able to convince al-Qa'ida he was genuinely ready to carry out the mission.''

The agent was entrusted with the bomb and told by AQAP to reserve a seat on a transatlantic flight. The booking was never made. Instead, he and his handler were whisked out of Yemen and the device was handed over to the CIA about April 20.

The agent has been moved to a country outside the Middle East. He may be entitled to a massive payout for helping track down Quso, who bombed a US warship off the coast of Yemen in 2000. Quso had a $US 5 million ($4.9m) bounty on his head, and under the US's Rewards for Justice program an individual can receive up to $US25m for information preventing a terrorist attack such as the planned aircraft bombing.

The problem with the leak was multifold. In addition to compromising the Saudi investigation from which the U.S. had received valuable intelligence leading to its obtaining the device and carrying out a drone strike that killed a person on its most wanted list, the message the leak sent to the Saudis and UK was that the U.S. can’t keep a secret. From another news article:

The next time MI5 approaches an agent, how is he or she to be convinced that their actions will not wind up in the pages of The New York Times? How will a Saudi Arabian intelligence official persuade a young Arab recruit that their information isn't going straight to Langley, Virginia? These are not abstract hypotheticals, but urgent problems. Intelligence sharing is absolutely pivotal to modern counterterrorism.

On May 10, 2012, Leon Pannetta said at a DOD news briefing:

PANETTA: Our whole effort is to try to be able to get individuals that can provide intelligence and that can work with us. And to be able to do that and do that effectively, you have to protect these people and you have to protect the confidence that -- and the classification and the covert nature of this kind of work. And when these leaks take place, I can't tell you how much they damage our ability to be able to pursue our intelligence efforts. And so I am fully in favor of a full and thorough investigation of this matter. And I understand that the director, the DNI will do that.

In other words, it seems the details of the new explosive were intricately tied to the drone attack and both were made possible because of this informant who worked for the Saudis with the help of Britain’s MI6. The CIA was not running him. The AP disclosed the details about the explosive device on Monday, May 7, just hours after Sunday’s drone strike in Yemen that the U.S. hoped would take out bomb-maker al Asiri. While the strike missed al-Asiri, it got AQAP leader Fahd al-Quso. Once the drone strike was over, the AP decided to publish the report on the device.

The AP learned about the thwarted plot last week but agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way. Once officials said those concerns were allayed, the AP decided to disclose the plot Monday despite requests from the Obama administration to wait for an official announcement Tuesday. The FBI and Department of Homeland Security acknowledged the existence of the bomb late Monday,

The Director of National Intelligence announced in May, 2012 that an investigation would be conducted across 16 intelligence agencies to find out who leaked details of the Saudi operation to the AP. At the time, both Democrats and Republicans praised the leak investigation:

"I don't think those leaks should have happened. There was an operation in progress and I think the leak is regarded as very serious," Dianne Feinstein, chair of the Senate Intelligence Committee, told reporters Tuesday. The Democrat promised a congressional investigation of the episode, a view shared by her Republican counterparts.

"If something bad happens because it was leaked too early, that's a catastrophe and it's also a crime," Republican Mike Rogers, chairman of the House Intelligence Committee, told CNN.

There is no legal requirement that DOJ tell the media in advance of its intent to subpoena telephone toll records. The regulations say it can delay notice for 45 days and then, with appropriate approval, extend the delayed notification for another 45 days. Here are DOJ's guidelines for obtaining records from reporters.

The policies, procedures and standards governing the issuance of subpoenas to members of the news media, subpoenas for the telephone toll records of members of the news media, and the interrogation, indictment, or arrest of members of the news media are set forth in 28 C.F.R. § 50.10.

(g) In requesting the Attorney General’s authorization for a subpoena for the telephone toll records of members of the news media, the following principles will apply:

(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period. In addition, prior to seeking the Attorney General’s authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.

(2) When there have been negotiations with a member of the news media whose telephone toll records are to be subpoenaed, the member shall be given reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it.

(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days. (my emphasis)

In May, 2012, FBI Chief Robert Mueller told the Senate Judiciary Committee the FBI was investigating the leaks about the Undie II plot to blow up a U.S. airliner because the leaks put the lives of sources at risk, which makes it much more difficult to recruit sources, and damages our relationships with our foreign partners. He said the FBI would be working with the U.S. Transportation Security Administration.

Discussions are going on with our partners overseas to make certain that whatever impact there is is minimized and precautions are put into place so that, in the future, it does not happen again.''

Sources for the above information (available on Lexis.com):

• Bomb plot press leak halted terror probe by Reuters, Mark Hosenball, The Chronicle (Willimantic, Connecticut) May 19, 2012
• FBI investigating leaks to media from plot in Yemen to blow up U.S. airliner Kuwait News Agency (KUNA) May 17, 2012
• F.B.I. Confirms Inquiry Into Leak Of Details on Bomb Plot by Al Qaeda The New York Times May 17, 2012, Michael S. Schmidt; Scott Shane and Eric Schmitt
• FBI Head Says Intel Leaks Like Al-Qaeda Plot Endanger Lives Radio Free Europe May 16, 2012,
• Spy games fail to foil bomb master, Dipesh Gadher David Leppard, The Australian May 14, 2012
• Dangerous new wrinkle in underwear bombs The Davis Enterprise (California) May 14, 2012 Monday
• London tightlipped on claims bomb plot agent was British Agence France Presse -- English May 11, 2012
• Officials: Britain's MI6 key to al-Qaida agent, Eileen Sullivan and Kimberly Dozier, The Associated Press, May 11, 2012
• The Al-Qaeda underwear bomber and the CIA leaks: loose lips sink spies, Shashank Joshi, The Telegraph, May 11, 2012
• US spy chief orders inquiry into leaks over Qaeda plot Agence France Presse, May 9, 2012
• CIA launches inquiry into media leaks over 'underpants' double agent, Agence France Presse
• AP source: Leaks probed in terrorism case, Pete Yost, AP, May 10, 2012;
• Officials: Al-Qaida bomber was CIA informant, The Herald-Sun (Durham, N.C.) May 9, 2012 , AP, Adam Goldman, Eileen Sullivan and Matt Apuzzo (Associated Press writers Kimberly Dozier, Ted Bridis, Bob Burns, Bradley Klapper and Alan Fram in Washington, Ahmed Al-Haj in Sanaa, Yemen, Verena Dobnik in New York, Paisley Dodds in London, Matthew Lee in New Delhi and Slobodan Lekic in Brussels contributed to this report.)
• Work with Yemen led to bomb discovery, says Obama adviser, AP, Adam Goldman, Matt Apuzzo
• Would-be underwear bomber revealed to be CIA Informant who delivered device to U.S. officials and helped Yemen drone strike, Mail Online May 8, 2012
• CIA thwarts 'undetectable' al-Qaida bomb plot, AP, Adam Goldman, Matt Apuzzo, Associated Press Online May 8, 2012

The Justice Department, in its letter this week to the AP, says the investigation is ongoing. It doesn't seem like they are after the reporters who published the information, but their sources -- the intelligence officials who leaked the details of the Saudi/UK/AQAP operation and disclosed that a Saudi informant from the UK had successfully infiltrated AQAP.

Reuters today has more on the continuing investigation into the leakers.

My thoughts: By now, the AP has to be aware that since the investigation is ongoing, toll records are just the tip of the iceberg. DOJ begins with subpoenas for toll records, which do not require judicial approval. But they don’t stop there. Once they get toll records, they move on to pen registers and trap and trace devices (which require court orders, but not probable cause, and which also allow delayed notification.) After reviewing the phone numbers on the pen registers and trap and trace devices, they move to wiretaps (which do require a probable cause showing but again, delayed notification is allowed.)

In addition to being outraged about the subpoena of toll records of the media, and the overbreadth of these particular requests, I think Americans should be outraged by how easy it is for law enforcement to obtain everyone’s toll records, without a court order and with delayed notice. And by how often they do it. It's not just done in terror investigations, but in every-day, run of the mill drug investigations.