Just when news organizations were digesting reports that the U.S. Justice Department had examined Associated Press reporters’ phone records, it turns out government lawyers had earlier conducted an even more invasive investigation of a reporter for Fox News.
The facts of the two cases are different, but the result is the same: An administration so consumed with stopping up leaks of national secrets was willing to cross a well-defined line into territory protected by the First Amendment.
In the Associated Press case, government agents investigating a leak that exposed a foiled terrorist plot in Yemen sought to identify sources contacted by the news organization that broke the story. In the Fox News case, however, the government identified a Fox reporter as a criminal co-conspirator in the unlawful release of classified government information. That raises government invasion of press freedom to unprecedented level.
The Washington Post reported Sunday that, while investigating a leak within the U.S. State Department three years ago, the Justice Department conducted a wide-ranging probe of Fox’s chief Washington correspondent, James Rosen. The government is prosecuting Stephen Jin-Woo Kim, a government adviser in the State Department, for allegedly releasing classified information related to North Korean nuclear tests.
Among other things, the government got a judge to issue a search warrant for Rosen’s personal emails, traced the timing of his phone calls and used his security-badge records to track his comings and goings in the State Department offices. According to subsequent news reports, the government also probed phone records of other Fox News staffers and even Rosen’s parents.
What makes this case disturbing is that the U.S. government is making the case that a reporter for a major national news organization participated in a criminal conspiracy by illegally obtaining classified secrets. Although Rosen has not been charged with a crime, the fact that he was identified as a co-conspirator to a crime gave government investigators unprecedented authority to go after his phone and email records, and perhaps further.
It has been clear that the government cannot prosecute a news organization for publishing classified secrets, based on the U.S. Supreme Court’s 1971 ruling following the New York Times’ publication of a secret Pentagon study of the Vietnam War. A premise of that decision was that the Times was a passive, “downstream” recipient of stolen documents, and thus not criminally culpable.
In the Fox News case, however, the government argues that Rosen was not a passive recipient but actively solicited the stolen information. That’s because he made clear to his source his interest in the information.
That is the sort of work a good reporter does every day, and it’s a very thin reed on which to hang a criminal investigation. It is no secret in Washington that reporters are interested in having access to leaked information, and they can’t be expected to know whether those documents are properly classified state secrets or just information the government does not want the public to know about.
If doing their jobs makes reporters criminals, then the First Amendment freedoms are surely under attack in this country.
Neither story pursued by the Associated Press or by Fox News warranted an intrusive federal invasion of reporters’ privacy. The Obama administration has become so obsessed with punishing leakers that it has lost any sense of perspective on balancing the people’s right to know against protecting legitimate U.S. security secrets.
That was expected of the Nixon administration in the Pentagon Papers era but not for a president whose first pledge was to run the most transparent administration ever.