We know about the secret subpoenaing and seizing of more than two months of telephone records of The Associated Press in 2012 in a security leak case.
On top of that came the alarming report this week by the Washington Post that the Justice Department went far beyond telephone records in investigating James Rosen, Fox News chief Washington correspondent, in another leak case.
Rosen came under investigation after he broke a story in June 2009, reporting that intelligence officials said North Korea probably would react to United Nations sanctions by conducting more nuclear tests. Rosen’s report said the CIA had received the information from sources inside North Korea.
The FBI secretly obtained a search warrant from a District of Columbia federal magistrate in 2010 to seize Rosen’s personal emails and telephone records.
Agents also tracked Rosen’s movements in the State Department by obtaining his security badge access records.
In an affidavit to get the search warrant, an FBI agent said there was “probable cause to believe that the reporter has committed a violation” of the law against unauthorized disclosure of national defense information “at the very least, either as an aider, abettor and/or co-conspirator” with the alleged leaker.
This case marks the first time a reporter has been deemed an un-indicted co-conspirator for seeking information, according to Gregg Leslie, legal director of the Reporters Committee for Freedom of the Press.
“It’s incredible,” Leslie said. The “co-conspirator” allegation is seen by some critics as a pretext to get the records. To that point, Rosen has not been charged.
The alleged leaker, Stephen Jin-Woo Kim, was a contract security adviser in the State Department. He pleaded not guilty and his trial is pending.
“Asking for information has never been deemed a crime,” a point made by Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.
The obvious impact of such overbroad search warrants and alleged criminal activity by a reporter is intimidation of investigative journalists and sources inside government.
“Search warrants like these have a severe chilling effect on the free flow of important information to the public,” said Charles Tobin, a First Amendment attorney who has represented the Associated Press.
AP’s CEO, Gary Pruitt, said he didn’t know the motive of the federal investigators, but: “I know what the message they are sending was — if you talk to the press we are going to go after you.”
Fox News also got the message. “It is downright chilling,” said Michael Clemente, executive vice president of news. He expressed outrage that Rosen “was named a criminal co-conspirator for simply doing his job as a reporter.”
Clemente said Fox News “will unequivocally defend his right to operate as a member of what up until now has always been a free press.”
Up until now.