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Fox Reporter Investigated Under Espionage Act

Obama Has a Secret

After many attempts to manufacture grand scandals out of very little, Republicans may finally have a legitimate outrage on their hands. But have they cried “Wolf!” too many times for it to matter?

As Anne Marimow reported yesterday for the Washington Post, under the strangely low key headline ”A rare peek into a Justice Department leak probe,”  Fox News chief Washington correspondent Jamie Rosen has been investigated under the Espionage Act for the crime of investigative journalism.

When the Justice Department began investigating possible leaks of classified information about North Korea in 2009, investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails.

The case of Stephen Jin-Woo Kim, the government adviser, and James Rosen, the chief Washington correspondent for Fox News, bears striking similarities to a sweeping leaks investigation disclosed last week in which federal investigators obtained records over two months of more than 20 telephone lines assigned to the Associated Press.

[...]

Court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist — and raise the question of how often journalists have been investigated as closely as Rosen was in 2010. The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.

“Search warrants like these have a severe chilling effect on the free flow of important information to the public,” said First Amendment lawyer Charles Tobin, who has represented the Associated Press, but not in the current case. “That’s a very dangerous road to go down.”

While I find the AP case troubling, it at least comes with the argument that it was a legitimate attempt to track down a federal agent who violated his oath and put the lives of US intelligence sources in harm’s way. While mass subpoenas of privileged communications of a major news outlet has profound First Amendment implications, the AP was a mere conduit for information, not a target of the investigation.

Here, though, as Steven Aftergood (“Reporter Deemed “Co-Conspirator” in Leak Case“) explains, we’ve got a real chilling effect and, at very least, a very heavy-handed use of power.

In a startling expansion of the Obama Administration’s war on leaks, a federal agent sought and received a warrant in 2010 to search the email account of Fox News correspondent James Rosen on grounds that there was probable cause the reporter had violated the Espionage Act by soliciting classified information from a State Department official.

[...]

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.  (There is no allegation that Mr. Rosen bribed, threatened or coerced anyone to gain the disclosure of restricted information.)

[...]

What makes this alarming is that “soliciting” and “encouraging” the disclosure of classified information are routine, daily activities in national security reporting.  The use of pseudonyms and discreet forms of communication are also commonplace.

But for today’s FBI, these everyday reporting techniques are taken as evidence of criminal activity and grounds for search and seizure of confidential email.

“Based on the foregoing, there is probable cause to believe that the Reporter has committed a violation of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), at the very least, either as an insider, abettor and/or co-conspirator of Mr. Kim,” Mr. Reyes wrote.

The affidavit says that the FBI had exhausted all alternatives to a search warrant for collecting the desired evidence, except for asking Mr. Rosen to voluntarily produce his own email.

“Because of the Reporter’s own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by the warrant.”

The warrant application was approved and signed by U.S. Magistrate Judge Alan Kay on May 28, 2010.  It was sealed until November 7, 2011 but went unnoticed until the Washington Post reported on it late yesterday.

Glenn Greenwald, who made his name railing against the liberties the Bush administration took with our liberties in the name of national security, has been remarkably consistent on this theme now that a Democratic administration is doing the same thing.

It is now well known that the Obama justice department has prosecuted more government leakers under the 1917 Espionage Act than all prior administrations combined - in fact, double the number of all such prior prosecutions. But as last week’s controversy over the DOJ’s pursuit of the phone records of AP reporters illustrated, this obsessive fixation in defense of secrecy also targets, and severely damages, journalists specifically and the newsgathering process in general.

New revelations emerged yesterday in the Washington Post that are perhaps the most extreme yet when it comes to the DOJ’s attacks on press freedoms. It involves the prosecution of State Department adviser Stephen Kim, a naturalized citizen from South Korea who was indicted in 2009 for allegedly telling Fox News’ chief Washington correspondent, James Rosen, that US intelligence believed North Korea would respond to additional UN sanctions with more nuclear tests – something Rosen then reported. Kim did not obtain unauthorized access to classified information, nor steal documents, nor sell secrets, nor pass them to an enemy of the US. Instead, the DOJ alleges that he merely communicated this innocuous information to a journalist – something done every day in Washington – and, for that, this arms expert and long-time government employee faces more than a decade in prison for “espionage”.

The focus of the Post’s report yesterday is that the DOJ’s surveillance of Rosen, the reporter, extended far beyond even what they did to AP reporters. The FBI tracked Rosen’s movements in and out of the State Department, traced the timing of his calls, and – most amazingly – obtained a search warrant to read two days worth of his emails, as well as all of his emails with Kim. In this case, said the Post, “investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.” It added that “court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist”.

But what makes this revelation particularly disturbing is that the DOJ, in order to get this search warrant, insisted that not only Kim, but also Rosen – the journalist – committed serious crimes.

[...]

Under US law, it is not illegal to publish classified information. That fact, along with the First Amendment’s guarantee of press freedoms, is what has prevented the US government from ever prosecuting journalists for reporting on what the US government does in secret. This newfound theory of the Obama DOJ – that a journalist can be guilty of crimes for “soliciting” the disclosure of classified information – is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself. These latest revelations show that this is not just a theory but one put into practice, as the Obama DOJ submitted court documents accusing a journalist of committing crimes by doing this.

Now, I’m not the absolutist on leak investigations that Greenwald is. While he and I agree that our government vastly overclassifies information and not always for good reasons, I’m perfectly happy for the Bradley Mannings of the world to rot in jail. (I hasten to add, pursuant to due process and under humane conditions, both of which have been outrageously absent.) Those who take an oath to keep our nation’s secrets secret have a duty to do so and should face justice when they don’t.

Offhand, Kim doesn’t seem to have divulged anything that wasn’t obvious. But I haven’t read enough about the case and don’t have access to the classified information, so I’m inclined to give the administration benefit of the doubt that he should be investigated and even prosecuted.

For that matter, I can envision circumstances where a journalist could be charged under the Espionage Act. Had Rosen published troop movements or the identities of American intelligence assets, for example, investigation would be legitimate both legally and morally. But Rosen here was engaged in nothing more subversive than old fashioned national security reporting.

Unless there’s some pretty damning evidence that President Obama was trying to coerce Rosen, this isn’t an impeachable offense. Indeed, the fact that a magistrate approved this warrant would seem to take it out of the realm of criminal conduct. But it’s damned worrisome.

UPDATE: Below are some of the pieces I wrote on the general topic of the Espionage Act, leaks, and journalists when the previous Republican administration was in office. Like Greenwald, I’ve been pretty consistent over the years.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. It will be indeed unfortunate if Republicans cried wolf too many times, because in this case, there is a legitimate wolf. What will be more depressing is that liberals will dismiss this as “oh, lol Fox”. They’re wrong. It doesn’t matter what colour jersey the guy’s wearing.

    Like or Dislike: Thumb up 7 Thumb down 1

  2. michael reynolds says:

    It’s like the AP story in that it may be legal but it’s wrong. At very least we have an arrogant overreach and a contempt for the free press. Of course Fox isn’t exactly the poster child for a free press since they’re really just a partisan house organ, a Pravda for Republicans. But if we pretend that Fox is a news organization that hires reporters then it’s an overreach.

    Like or Dislike: Thumb up 10 Thumb down 7

  3. They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails.

    So, monitoring who comes into a secure government building, as well as monitoring government call logs, which anyone using the phone system knows is monitored, is some kind of big scandal now?

    And then obtaining a search warrant, through a neutral and detached magistrate or judge, is the end of the Republic?

    Highly-rated. Helpful or Unhelpful: Thumb up 36 Thumb down 6

  4. James Joyner says:

    @michael reynolds: I think it’s both, although enough of the “partisan house organ” that I largely ignore it given the overabundance of quality news outlets available. My impression is that Rosen is one of the good guys–an honest to goodness reporter. Amusingly, he got his start working for Dan Rather.

    Like or Dislike: Thumb up 3 Thumb down 0

  5. fred says:

    Anyone who poses a threat to national security should be investigated. If cleared, OK. It’s better to find out before and not after any crime has been committed.

    Like or Dislike: Thumb up 8 Thumb down 3

  6. Donald Sensing says:

    Rules for presidents

    Like or Dislike: Thumb up 2 Thumb down 2

  7. michael reynolds says:

    @fred:

    I’m sorry, but there needs to be special level of restraint when it comes to investigating reporters. Authorities need to take several deep breaths and ask themselves whether their concern is worth using the power of government to intrude into the workings of a free press. Is there a nuke about to go off in Manhattan? Okay, then investigate a reporter. But some leak investigation? No. We went through this in the Nixon years, and it is just not okay.

    Like or Dislike: Thumb up 11 Thumb down 7

  8. DC Loser says:

    But Mitch McConnell said that going after the AP was great! I’d like to see him do a full 180 now that it’s Fox that’s the one having its records checked.

    Like or Dislike: Thumb up 11 Thumb down 1

  9. michael reynolds says:

    If liberals can’t admit when “our guy” screws up, then we’re in danger of becoming as brain dead as Republicans. Obama is not Jesus Christ, he’s a politician, he’s mortal, he has flaws. If a president Mitt Romney’s administration had done this to a reporter from NPR we’d be screaming bloody murder.

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 0

  10. Moosebreath says:

    @michael reynolds:

    I have no problem saying that Obama is wrong when he is. I just don’t agree that he did anything wrong here.

    I agree with James that “Indeed, the fact that a magistrate approved this warrant would seem to take it out of the realm of criminal conduct. But it’s damned worrisome.” As I said on the AP story, it’s not what’s illegal that’s troubling, it’s what’s legal.

    I would support legislation making it more difficult (though not impossible) to obtain such a warrant. But that’s very different than saying Obama screwed up when he followed the law.

    Like or Dislike: Thumb up 13 Thumb down 4

  11. michael reynolds says:

    @Moosebreath:

    Following the law is not the only criterion for judging an action. You can follow the law and not call 911 when you see a person being mugged, but it’s wrong. It is wrong to cavalierly intrude government into the workings of the free press. This was unnecessary overreach.

    Like or Dislike: Thumb up 9 Thumb down 6

  12. Mikey says:

    @Timothy Watson:

    This may be a series of entirely legal actions, but taken as a whole, it is profoundly troubling, both in what it says about the Obama administration’s thinking re: the First Amendment and in its chilling (some prominent reporters, such as Jane Mayer, say “freezing”) effect on national security reporting.

    Like or Dislike: Thumb up 7 Thumb down 3

  13. Septimius says:

    @Timothy Watson:

    Just because a judge signs off on a search warrant doesn’t automatically make it ok. The prosecutor has an legal and ethical responsibility to be truthful on the application. Alleging “potential criminal liability” on the part of an investigative journalist for committing investigative journalism is really bad news.

    Like or Dislike: Thumb up 12 Thumb down 2

  14. Blue Galangal says:

    @michael reynolds: I think the point is that it was not cavalier intrusion. It was a security leak dealing with a very hostile and nuclear-weapon-possessing North Korea, and it wasn’t done to stop the reporter from working as a reporter, no one was fired, no newspapers were shut down. Just like Tamerlan Tsaernaev – how do you know what the danger is if you don’t investigate? That’s what’s driven the national security justification for the past 12 years*. North Korea. Nuclear. Leaks. The fact that a reporter was involved is secondary to the fact that the employee was leaking info to a reporter at all.

    *I’m not saying it’s right but this is what post-Patriot America looks like; and, hell, after 9/11, there’s a whole lot of CYA, in the entire executive branch of the government: if the North Koreans drop a missile on Alaska, it’s all gonna be “What did Obama know and when did he know it?!????”

    Hot debate. What do you think? Thumb up 16 Thumb down 4

  15. Mikey says:

    The Washington Post’s Karen Tumulty sums up why this is bad in an incisive Tweet:

    “The alternative to “conspiring” with leakers to get information: Just writing what the government tells you.”

    Like or Dislike: Thumb up 11 Thumb down 0

  16. stonetools says:

    Here’s the problem I have here. Sure, its a matter for concern that the government investigating the press. But is there any evidence that the government is doing anything wrong?
    On one hand, people say , “Sure, the government has an interest in preventing the leaking of sensitive information. That goes without saying.” But when the government does anything to prevent such leaks, the hand wringing starts.
    There is only one way the government can find out who is leaking information and that is to conduct an investigation-including an investigation of the people who received the information. Investigation will mean asking questions, surveillance, going through phone logs, etc. You don’t want the government to have untrammeled power to investigate, so you want the government to go to court and get a warrant to go through records, etc. In this case the government applied for and got a warrant.
    Seems to me the problem here is not with the government. Its complying with the law, its following due process and its pressing its investigation. The problem might be with the judge who is interpreting the law , or with the law itself. Apparently Glenn Greenwald doesn’t like how Judge Keys interpreted the law. Guess what, he’s not a judge. (Neither are any of us). WE might not like the government’s arguments, but Judge Keys did, so due process was observed.
    To prevent leaks the government is going to have to investigate. I’m not going to be worried about that. What would be worrying would be if government broke the law, and DIDN’T seek a warrant where it was appropriate. So far it hasn’t in this case. That said, something like a shield law to give more protection to the press, might be a good idea. Guess which party voted it down the last time it was proposed?

    Like or Dislike: Thumb up 11 Thumb down 1

  17. Mikey says:

    @stonetools:

    Reporters probe, ask questions, try to pull information. The press’ protection under the First Amendment is very broad. The government of a free nation must recognize limits. That’s all gone out the window now.

    Now we have the potential of a reporter going to jail for a very long time for doing his First Amendment-protected job.

    Reporters living in fear of reporting anything besides the Government-approved line is a feature of dictatorships, not of a free country.

    Like or Dislike: Thumb up 5 Thumb down 3

  18. PD Shaw says:

    I wonder if the crime of “soliciting” classified information means that the solicitor is required to know the classified status of the information he solicits? If I ask a man on the street what the weather is today in Pyongyang, can I be arrested on the spot if the man knows the weather through classified channels?

    Like or Dislike: Thumb up 2 Thumb down 0

  19. @Mikey: Because federal law enforcement is under no obligation to ensure that Top Secret/Sensitive Compartmented Information is secure?

    @Septimius:

    Just because a judge signs off on a search warrant doesn’t automatically make it ok. The prosecutor has an legal and ethical responsibility to be truthful on the application. Alleging “potential criminal liability” on the part of an investigative journalist for committing investigative journalism is really bad news.

    Um, what? First, actually, a judge signing off on a warrant, in almost all cases, means that the search will be approved of in any future court proceeding.

    Second, prosecutors aren’t involved with search warrant applications that often. In this case, a special agent with the FBI filed a 41 page affidavit before a magistrate judge to secure a search warrant.

    Third, do know what the “probable cause” requirement means? Probable cause is “[a] reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime” (Black’s Law Dictionary, 3d pocket ed.).

    Further, if someone bothered to actually read the affidavit, you would see how narrowly tailored it was, not exactly an overreaching search request.

    Like or Dislike: Thumb up 6 Thumb down 3

  20. michael reynolds says:

    It is not the business of government to be pushing the law to its limits like Mitt Romney and his tax deductions. Legal does not equal right. I don’t expect my government to intimidate reporters and then excuse it with, “Well, a judge said it was okay.”

    Like or Dislike: Thumb up 7 Thumb down 0

  21. Fox Henhouse says:

    @Christopher Bowen: Nothing wrong in this. Jouranalists are not above the law when it comes to treason or spying. All the presidents have done this in the past.

    Like or Dislike: Thumb up 6 Thumb down 2

  22. Mikey says:

    @Timothy Watson: I’ve held a TS/SCI clearance for nearly 20 years. I know exactly what I’m talking about and the implications of allowing what Rosen did. And I still think what the DoJ did here is prejudicial to the functioning of a free press.

    Like or Dislike: Thumb up 8 Thumb down 3

  23. michael reynolds says:

    I think there’s a very simple question here: does this reporter have a legitimate reason to be afraid?

    I think the answer is yes. And that’s wrong. We do not want frightened reporters. We want reporters to know that the government has their back, not that the government is on their back. Jesus, people, this is the United States, home of the First Amendment. We’ve preached free press all over the world since forever. So barring some apocalyptic scenario the government should simply not touch journalists. Period.

    Like or Dislike: Thumb up 11 Thumb down 1

  24. Andre Kenji says:

    @michael reynolds: Exactly. Dredd Scott and Plessy v. Ferguson were legal.

    Like or Dislike: Thumb up 5 Thumb down 0

  25. PD Shaw says:

    @Timothy Watson: If a judge signs-off on an improper search warrant, that might immunize the executive from civil liability and it might mean the evidence will not be suppressed. But it doesn’t necessarily mean the executive acted Constitutionally; it might simply mean that the judge had become an accomplice to unconstitutional executive conduct, and might even deserve a greater share of the blame than the executive.

    Like or Dislike: Thumb up 5 Thumb down 0

  26. Woody Boyd says:

    blah, blah, blah
    If we had journalism in this country we would not have invaded and occupied Iraq.
    If we had journalism in this country you never would have heard of Death Panels.
    Last I checked stenographers were not afforded special protections in the Constitution.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 1

  27. Septimius says:

    @Timothy Watson:

    But, by this standard, any leak of classified information to a journalist could be construed as probable cause that the journalist is an “aider and abettor and/or co-conspirator” to the crime of the leak. Therefore, the government could obtain a search warrant on any reporter who receives classifed information. Therefore, no one would ever give classified information to a reporter knowing that the government could obtain evidence against them from the reporter. Therefore, any information that was illegal or embarrassing to the government could be classified and the public would never know. Therefore, the first amendment would cease to exist as we know it.

    Like or Dislike: Thumb up 7 Thumb down 0

  28. stonetools says:

    It seems that most commenters here think the judge has never heard of the Constitution, the First Amendment , or the role of a free press in American society. Guess what, he has probably heard of all three, but signed the warrant anyway. I think its even likely that he knows more constitutional law than any poster on thread, and that he probably got this right.
    Let’s say, though, that I am wrong about this and that he improperly granted the warrant. At the appropriate time, there will be a hearing in front of another judge, where the defense can argue that the warrant was improperly granted and all the evidence gathered pursuant to the warrant should be excluded from the trial. If that judge is persuaded, then the evidence and the case against the reporter gets thrown out.
    In light of that, I think its likely the Constitution and the Republic will survive this.

    Like or Dislike: Thumb up 5 Thumb down 1

  29. michael reynolds says:

    @stonetools:

    Can you say that you would be making precisely the same arguments if the president in question was Mitt Romney and the target was a reporter from the NYT or NPR?

    Like or Dislike: Thumb up 5 Thumb down 2

  30. Moosebreath says:

    @michael reynolds:

    Michael,

    I know I would be making the same arguments. Oddly enough, you aren’t the only person on this board who has thought out positions, and it gets grating to listen to someone who thinks that of himself.

    Like or Dislike: Thumb up 6 Thumb down 1

  31. PD Shaw says:

    @Timothy Watson: “prosecutors aren’t involved with search warrant applications that often.”

    Politico is reporting that due to the Privacy Protection Act of 1980,, “Normally such searches require the approval of the attorney general, pursuant to DOJ guidelines.”

    Like or Dislike: Thumb up 2 Thumb down 0

  32. michael reynolds says:

    @Moosebreath:

    I’ve never claimed, and would never claim, to be someone who has thought out all of his positions with great care. One of the reasons I enjoy fora like this is that it forces me to think things through, to defend my stand, hopefully to learn something.

    I’m sorry if my question grated on you. I wasn’t implying a hierarchy.

    Like or Dislike: Thumb up 3 Thumb down 0

  33. Jenos Idanian says:

    Man, if Nixon had done this to Woodward & Bernstein, he could have nipped that whole Watergate thing right in the bud…

    Like or Dislike: Thumb up 5 Thumb down 7

  34. michael reynolds says:

    @Jenos Idanian:

    Actually he did far, far worse. Don’t talk about things you know nothing about. First, go read a history of Watergate, then come tell us all about Nixon.

    Like or Dislike: Thumb up 11 Thumb down 1

  35. Moosebreath says:

    In addition, according to a corrsepondent to Josh Marshall’s place the warrant involved was for the conversation when the reporter was in the State Department building, using internal State Department phones. The expectation for privacy there is pretty low, methinks.

    “Everyone seems up in arms about surveillance of Rosen’s phone calls and building entries. Do reporters actually think that phone calls they receive on State Department phones within the State Department building are private? Even when the originating call is also a State Department phone in the same building?”

    Like or Dislike: Thumb up 7 Thumb down 1

  36. Jenos Idanian says:

    @michael reynolds: I was speaking specifically of treating reporters who get leaks as “co-conspirators” in court filings. If that is being considered a crime, then yeah, Nixon could have gone after W&B directly — because they were being fed very confidential information.

    Like or Dislike: Thumb up 3 Thumb down 6

  37. @Septimius: Once again, try reading the 41 page affidavit, which goes a lot further than ‘the reporter published classified information, give me a search warrant.’

    @PD Shaw: And what’s absolutely amazing how little that author knows about anything involving the criminal justice system.

    There appeared to be certain limits on what the feds could retain from those emails if they were entirely unrelated to the inquiry, or violations of the Espionage Act.

    Actually, it’s this thing called the “Constitution” and the “Fourth Amendment”: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    Just because it’s e-mail or another form of digital media, you don’t have the right to go through everything in someone’s e-mail account or hard drive, just as when you search someone’s house for drugs or a weapon used in a crime, you don’t have the right to seize everything they own.

    It appears the prosecutors’ statements about Rosen having potentially committed a crime were aimed at allowing them to proceed through use of a search warrant rather than a grand jury subpoena or other means. Under the Privacy Protection Act of 1980, search warrants are only available to seize journalists’ work products under certain circumstances, such as when the journalist himself or herself is suspected of committing certain crimes.

    If Rosen were considered simply a bystander, prosecutors might have had to use a subpoena, which would likely have involved notice to Rosen and a chance for him to fight the subpoena in court.

    And how exactly would a grand jury subpoena directed against the reporter resulted in the e-mails being produced? And how exactly is something done in secret during grand jury hearings more open than a search warrant affidavit that was eventually released? Not to mention, that the subpoena would have been directed to Google, not the reporter.

    Even if an Assistant or Deputy Attorney General approved search an affidavit, it was still an FBI Special Agent that filed for the affidavit.

    Like or Dislike: Thumb up 2 Thumb down 2

  38. @Moosebreath: I work for a public employer, whom I will not be disclosing. When I was hired I signed a waiver acknowledging that anything I did on their computer system was subject to monitoring. In addition, every time I log-in to a computer, I have to hit “Okay” to a dialogue box reminding as such.

    I’m sure that anything that works for the federal government, in particular the State Department, in particular someone with Top Secret/SCI clearance, has to sign a bunch more waivers than I did.

    In addition, if you look at the affidavit, they searched the State Department employee’s office and hard drives without his knowledge, consent, or a search warrant, all of which they are legally allowed to do.

    Like or Dislike: Thumb up 4 Thumb down 1

  39. michael reynolds says:

    @Jenos Idanian:

    Actually, no, they were being fed political information — about money at CREEP, about connections between the WH and the Plumbers. None of that was classified or top secret, it was just embarrassing.

    Before Watergate:

    Nixon’s previously unpublished pronouncements about the television networks occurred during a July 2, 1971, discussion with aide Charles W. Colson, who played a central role in pressuring the news media to change their critical coverage of the Nixon administration.

    Colson told Nixon that whether filing an antitrust case against ABC, NBC and CBS “is good or not is perhaps not the major political consideration. But keeping this case in a pending status gives us one hell of a club on an economic issue that means a great deal to those three networks … something of a sword of Damocles.”

    Nixon responded, “Our gain is more important than the economic gain. We don’t give a goddam about the economic gain. Our game here is solely political. … As far as screwing them is concerned, I’m very glad to do it.”

    Although Attorney General John N. Mitchell wanted to file an antitrust suit against the networks because of their monopoly ownership of prime-time programs, according to the Nixon-Colson tape transcript, Nixon decided to have Mitchell “hold it for a while, because I’m trying to get something out of the networks.”

    And after Watergate:

    Network coverage of the burgeoning Watergate scandal ignited White House wrath anew. A CBS report on the scandal less than a week before Nixon’s 1972 reelection provoked an Oval Office discussion on the morning of Oct. 28, a newly transcribed tape shows.

    “Despicable,” Haldeman told Nixon in describing the report. When Colson entered the office, Nixon said, with apparent sarcasm, “I was telling Bob [Haldeman] how beautifully you’re controlling CBS.”

    After the White House conveyed its anger to CBS, network chairman William S. Paley called Colson on Nov. 3.

    “Paley was pleading,” Colson exulted in a memo to Haldeman. “He sounded like a whipped dog and was almost on the verge of tears. My voice was steely cold. … Chalk up one for our new task of destroying the old establishment.”

    Like or Dislike: Thumb up 6 Thumb down 0

  40. Moosebreath says:

    @Timothy Watson:

    Your comments seem to be referring to the State Department employee. The furor is about the Fox News corrsepondent, who would not have signed such forms.

    Like or Dislike: Thumb up 3 Thumb down 0

  41. mantis says:

    @michael reynolds:

    It is wrong to cavalierly intrude government into the workings of the free press.

    Your description does not fit the facts.

    Like or Dislike: Thumb up 2 Thumb down 3

  42. @Moosebreath: That one comment was about the State Department employee and the absurdity of the attention paid to the FBI like looking at access and phone logs, the others were about the search warrant directed at Gmail.

    Like or Dislike: Thumb up 1 Thumb down 1

  43. Jeremy R says:

    @Septimius:

    But, by this standard, any leak of classified information to a journalist could be construed as probable cause that the journalist is an “aider and abettor and/or co-conspirator” to the crime of the leak.

    This wasn’t your typical reporter passively receiving a leak of gov’t malfeasance from a disgruntled whistle-blower. Rosen was behaving like some sort of foreign intelligence agent recruiting an operative. He set up spy-movie-like trade-craft to pass intel between the two of them and even more oddly was the acting like the one with power in the relationship, requesting his mole try and get to him whatever “intelligence is picking up” and whatever “internal State Department analyses” he could get his hands on.

    These are the key graphs:

    Reyes wrote that there was evidence Rosen had broken the law, “at the very least, either as an aider, abettor and/or co-conspirator.” That fact distinguishes his case from the probe of the AP, in which the news organization is not the likely target.

    Using italics for emphasis, Reyes explained how Rosen allegedly used a “covert communications plan” and quoted from an e-mail exchange between Rosen and Kim that seems to describe a secret system for passing along information.

    In the exchange, Rosen used the alias “Leo” to address Kim and called himself “Alex,” an apparent reference to Alexander Butterfield, the man best known for running the secret recording system in the Nixon White House, according to the affidavit.

    Rosen instructed Kim to send him coded signals on his Google account, according to a quote from his e-mail in the affidavit: “One asterisk means to contact them, or that previously suggested plans for communication are to proceed as agreed; two asterisks means the opposite.”

    He also wrote, according to the affidavit: “What I am interested in, as you might expect, is breaking news ahead of my competitors” including “what intelligence is picking up.” And: “I’d love to see some internal State Department analyses.”

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  44. EddieInCA says:

    @michael reynolds:
    @michael reynolds:

    Mr. Reynolds -

    I ask with all due respect. What would a reporter (or journalist) need to do, in your definition, for a government to be justified in investigating said reporter?

    I’ve read the whole story from several different sources and I believe there is MORE than sufficient evidence to do an investigation into Mr. Rosen. In my opinion, and obviously, more importantly, the opinion of the judge, Mr. Rosen’s actions not only deserved further investigation, but created such an impression that the judge ruled that the government did NOT have to inform Mr. Rosen of their actions.

    So I ask the question honestly. At what point, in your opinion, is it okay for the US Government justified in investigating a reporter who might have access to classified information?

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  45. Septimius says:

    @Timothy Watson:

    “Once again, try reading the 41 page affidavit, which goes a lot further than ‘the reporter published classified information, give me a search warrant.’”

    No, I’ve read the entire affidavit. There is no evidence presented against “The Reporter” justifying a search warrant for his gmail account aside from the fact that the government thinks he received classified information from Kim. Yes, soliciting or receiving unauthorized classified material is illegal, but the Supreme Court has ruled that the First Amendment protections for the press supersede those laws. The Justice Department has a responsibility to uphold the Constitution even if it gets in the way of prosecuting a suspected leaker. And, the judge who signed off on this warrant should be disbarred.

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  46. EddieInCA says:

    @Septimius:

    Septimus – Similar question for you: At what point, in your opinion, is it okay for the US Government justified in investigating a reporter who might be soliciting classified information?

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  47. rudderpedals says:

    What leads insiders to leak stuff like this? I wonder what Kim was thinking he’d get for sharing.

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  48. michael reynolds says:

    @EddieInCA:

    I think there needs to be something bigger on the table to justify any government action that can be seen as intimidating the press. Some wild Jack Bauer scenario, maybe. Put some lives in the balance at least. This was a reporter looking for analysis, not some Wiki leaker threatening to publish the nuclear launch codes.

    I favor a shield law. The GOP filibustered one in 2007. The Obama administration looked as if they might back one then weaseled.

    A free press is about as close as I come to a religious belief. It should be hands off the press unless you’re in the sort of situation where basically everyone can see that it’s necessary. That’s not what we have here, as evidenced by the fact that people are making strictly legalistic arguments. No one’s saying, “This had to be done or thousands would have died!” I do not accept “Well, we found a judge who went along,” to be sufficient. This is not solely about law, this is about respect for a vital institution (even if it is the dishonest ass-hats at Fox.)

    Let me turn this around. Let’s say it’s a decade ago and a reporter thinks there’s State Department analysis that contradicts Colin Powell’s UN testimony on WMD. Let’s make the reporter from the NYT. The Bush administration swears out a warrant that treats the reporter as a suspect in an espionage investigation and finds a judge to okay it. Is that okay? It’s not okay with me.

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  49. @Septimius: Want to give a cite for that broad comment?

    The short per curiam opinion in New York Times Co. v United States simply struck down a request for an injunction from the United States government to the paper from publishing.

    Maybe you should consult Branzburg v. Hayes where the Supreme Court of the United States ruled that a reporter could not refuse to testify before a grand jury by citing the First Amendment.

    While we talking about this, are there any other special rights that reporters get that I don’t?

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  50. EddieInCA says:

    @michael reynolds:

    How does adding the term “Classified Information” change your definition, if at all?

    Thanks.

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  51. PD Shaw says:

    @Timothy Watson: The Politico story will no doubt be revised and slowly become more accurate, but the gist I take from it is that the reporter is being accused of a serious felony in order for the Attorney General to obtain evidence against Kim without having to comply with the Privacy Protection Act.

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  52. Septimius says:

    @EddieInCA:

    Yes. There are limits to what reporters can do. I don’t think reporters would be justified breaking into a government agency to obtain documents. I don’t think they should be able to hack computers or cellphones. They shouldn’t be able to misrepresent themselves in order to obtain information.

    As for soliciting information? That’s what reporters do. If they just sat at their desks waiting for the phone to ring, they wouldn’t stay employed for very long. And, the public wouldn’t know very much.

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  53. michael reynolds says:

    @EddieInCA:

    “Classified” is an essentially meaningless term aside from the legal implications. It has long since ceased to be about necessary secrets – troop movements, the date of D-Day, launch codes. Now it’s used indiscriminately, I suspect often just to conceal embarrassing information. If “Classified” is taken to be an absolute barrier to the press then the government can effectively conceal anything it wishes to. That’s not tolerable.

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  54. EddieInCA says:

    @Septimius:

    Then you should be advocating for the law to be changed, because right now it’s a felony to knowingly solicit classified information or documents.

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  55. anjin-san says:

    Not a peep from the right about the Bachmann scandal, despite the fact that it is looking more and more like there might have been criminal wrongdoing…

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  56. Woody says:

    There has been a confluence of factors steadily eroding our civil liberties since the Burger Court. Presidents and their press secretaries have played carrot-and-stick with a shrinking array of increasingly corporate reporters who are feted for their ‘Access’ rather than their accuracy. These rewards come courtesy of a few media giants who are rewarded for the sure profits of infotainment (and acquisition) rather than the perils of adversarial reporting. Advertisers who are also eager for regulatory rewards also prefer the status-quo.

    The problem is that this long-running erosion of the Fourth Estate does not fit into the false choice of Liberal-Conservative. It is covered only as all topics are now covered – as a tribal horse race. Thus the evisceration continues, openly.

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  57. Kari Q says:

    @PD Shaw:

    I think you’re right about that. It was my perspective as well. They appear to have needed more information to firm up the case, so they took that route to get it. It’s a questionable decision at best.

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  58. Septimius says:

    @EddieInCA:

    No. This distinction between soliciting classified information rather than just passively receiving it seems to be an invention of the Eric Holder Justice Department. No previous administration has ever tried to accuse a reporter of being a co-conspirator to the leaking of classified information. Furthermore, many journalists, especially those who cover national security or defense, have already stated that Rosen’s actions were a normal part of investigative journalism. I have yet to read any journalist argue that Rosen’s actions were illegal, unethical, or even atypical for an investigative reporter.

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  59. Jenos Idanian says:

    @rudderpedals: What leads insiders to leak stuff like this? I wonder what Kim was thinking he’d get for sharing.

    Years ago I read an acronym for why people betray confidences — MICE. Money, Ideology, Conscience, Ego.

    It applies to defectors, spies, traitors, leakers, whistle-blowers — any kind of person who betrays a confidence. Their motives tend to fall into one or more of those categories.

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  60. Spartacus says:

    James wrote:

    But I haven’t read enough about the case and don’t have access to the classified information, so I’m inclined to give the administration benefit of the doubt that he should be investigated and even prosecuted.

    Whoa! We are going way too far here. It is impossible to presume someone to be innocent while at the same time giving the government the benefit of the doubt in support of a criminal prosecution.

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  61. Spartacus says:

    @EddieInCA:

    At what point, in your opinion, is it okay for the US Government justified in investigating a reporter who might be soliciting classified information?

    I don’t think it should ever be illegal for a reporter to ask a government official to disclose classified information to that reporter or for the reporter to publish that information. I don’t believe the govt (even with a warrant) should be able to review a reporter’s emails, phone conversations or other matters in which a reporter has a reasonable expectation of privacy for the purpose of trying to identify a reporter’s source.

    I am not aware of any significant loss of life or other great harm that was caused by a reporter’s publication of classified information. I am, however, aware of changes for the better in govt policy that were triggered by the disclosure of govt secrets. Consequently, as between the reporter’s interest in receiving and publishing classified information and the government’s interest in preventing the publication of that information, I invariably side with the reporter.

    The government should still be free to prosecute the person who violates his confidentiality obligations, but it should do so without invading the reporter’s privacy or compelling the reporter to disclose its source.

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  62. James Joyner says:

    @Spartacus:

    It is impossible to presume someone to be innocent while at the same time giving the government the benefit of the doubt in support of a criminal prosecution.

    I don’t follow. Presuming that the government thinks they have probable cause for investigation and even cause for prosecution doesn’t mean they don’t have to prove guilt beyond reasonable doubt.

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  63. NoneyaBiz says:

    @michael reynolds: We are at WAR! Fox news is owned by Rupert Murdoch… who holds duel citizenship in the UK and Australia. As well as Saudi Prince Alwaleed Bin Talal. You don’t see a problem with this? Seriously? Especially considering the bribing members of Parliament and Scotland Yard and tapping phones of the Royals, and many others (including victims of crimes) in the UK by the Daily Mail. Murdoch is also, under investigation for tapping phones in the US. If this leak, caused any members of our military or our intelligence agencies to be killed or captured.,. who would you blame. And who would you blame if the US is attacked again like it was on Sept. 11, 2001, because of this type of intelligence leak. Or are our brave Americans serving us overseas, just collateral damage? And did you have a problem when Richard Armatage (aka scapegoat) leaked a covert agents identity to the world… while she was in investigating Iraq’s connection to Niger and WMD, after the start of the Afghanistan War. Remember… in retaliation for her ambassador husband discovering the “Forged” document used to sell the WAR to the American People? And of course… the Right Wingers said that Cheney/Libby could not be forced to testify, because of executive privilege.

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  64. Spartacus says:

    @James Joyner:

    I may be reading more into your statement than you intended, but it seems that if we presume someone is innocent, then we are necessarily presuming the government has made a mistake in selecting that person for prosecution. The presumption of innocence requires a bias against the government’s argument and against prosecution.

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  65. rudderpedals says:

    @Jenos Idanian: I never heard that acronym before. Makes sense, thank you. I’m going with Ego.

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  66. Fox Henhouse says:

    @Spartacus: @Spartacus: There was no prosecution here. We are at war and we expect the government to do their due deligence

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  67. john425 says:

    Dear Liberals: Loosely paraphrasing Niemoller’s famous quote…”First they came for the conservative Fox reporters…”

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