Regardless of the left’s opinion of Fox News, the Obama administration has gone way over the constitutional line and this is adds to the serious threat to freedom of the press. The idea that the government. on its unconstrained wild hunt for whistle blowers, can issue secret subpoenas for telephone records just got worse this morning. The case is being made against Fox News reporter James Rosen for his reporting on the possibility that North Korea would respond to additional UN sanctions with more nuclear tests back in 2009. The Department of Justice is prosecuting State Department adviser and arms expert Stephen Jin-Woo Kim for “leaking” the information to James Rosen of Fox News. To makes the case against Rosen this is what the DOJ did:
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. [..]
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.
First, Kim did not obtain these documents illegally, he had access to them, He did not steal or sell the documents, or pass them to an enemy agent of the US. He gave, what is for all intents and purposes, innocuous information to a news reporter. For that Kim is being prosecuted under the Espionage Act. Now the DOJ is seeking to prosecute Rosen for revealing the information.
Glenn Greenwald reiterated that it is not against US law to to publish classified information and is far worse than the secret subpoena of the phone records of the Associated Press:
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. The DOJ specifically argued that by encouraging his source to disclose classified information – something investigative journalists do every day – Rosen himself broke the law.
In an affidavit (pdf) from the FBI by Agent Reginald B. Reyes in the application for the search warrant, Reyes alleged that because Rosen and Kim used aliases to protect their communications and sought ways to maintain confidentiality, all completely legal for journalists to do, Rosen was acting “much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”
In her comparison of this case with the Associated Press, and cases against James Risen of The New York Times and Bradley Manning, Marcy Wheeler notes that Agent Reyes used the strategy of painting Rosen as criminal to circumvent the “Privacy Protection Act protections for media work product” in order to obtain the warrant for Rosen’s e-mails and other records:
In other words, during a period from May 2010 through January 2011, Eric Holder’s DOJ was developing this theory under which journalists were criminals, though it’s just now that we’re all noticing this May 2010 affidavit that lays the groundwork for that theory.
Maybe that development was predictable, given that during precisely that time period, the lawyer who fucked up the Ted Stevens prosecution, William Welch, was in charge of prosecuting leaks (though it’s not clear he had a role in Kim’s prosecution before he left in 2011).
But it’s worth noting the strategy – and the purpose it serves – because it is almost certainly still in effect. FBI Special Agent Reginald Reyes accused Rosen of being a criminal so he could get around the Privacy Protection Act protections for media work product (See pages 4 and following), which specifically exempts “fruits of a crime” or “property … used  as a means of committing a criminal offense.” Then he further used it to argue against giving notice to Fox or Rosen.
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. (29)
While the AP’s phone records weren’t taken via a warrant, it would be unsurprising if the government is still using this formula – journalists = criminals and therefore cannot have notice – to collect evidence. Indeed, that may be one reason why we haven’t seen the subpoena to the AP.
It is very clear that this is an unprecedented threat to freedom of the press and the Obama administration has escalated this war since Obama took office in 2009.
In an interview last week with Amy Goodman and Nermeen Shaikh, senior fellow at The Nation Institute Chis Hedges, called the monitoring of the AP phone records “one more assault in a long series of assault against freedom of information and freedom of the press.”
“Talk to any investigative journalist who must investigate the government, and they will tell you that there is a deep freeze. People are terrified of speaking, because they’re terrified of going to jail.”
Here is Mr. Hedges piece from Truthdig documenting The Death of Truth
Other related articles from Glenn Greenwald at The Guardian:
Justice Department’s pursuit of AP’s phone records is both extreme and dangerous
The major sea change in media discussions of Obama and civil liberties