Journalists, First Amendment watchdogs and government transparency advocates reacted with outrage Monday to the revelation that the Justice Department had investigated the newsgathering activities of a Fox News reporter as a potential crime in a probe of classified leaks.
Critics said the government’s suggestion that James Rosen, Fox News’s chief Washington correspondent, was a “co-conspirator” for soliciting classified information threatened to criminalize press freedoms protected by the First Amendment. Others also suggested that the Justice Department’s claim in pursuing an alleged leak from the State Department was little more than pretext to seize his e-mails to build their case against the suspected leaker.
“It is downright chilling,” Fox News executive Michael Clemente said in a statement. “We will unequivocally defend [Rosen’s] right to operate as a member of what up until now has always been a free press.”
Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, said, “Asking for information has never been deemed a crime.”
The reactions followed a Washington Post report on the inner workings of a Justice Department investigation into a possible leak of classified information about North Korea.
The case centers on Stephen Jin-Woo Kim, a former State Department arms expert accused of passing details to Rosen from a classified report within hours of its release to a small circle within the intelligence community. Investigators also targeted Rosen, calling him a co-conspirator in an affidavit seeking a search warrant for Rosen’s personal e-mails.
In the affidavit, FBI agent Reginald Reyes said Rosen “asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information.” He added, “The reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”
That detail particularly irked media lawyers and transparency experts, who said the Justice Department had crossed a line by equating routine reporting practices with possible criminal activity.
“Neither flattery nor an insistent tone rises to the level of a criminal offense,” Aftergood said.
Investigators pulled Rosen’s security badge records, phone logs and his personal e-mails, but they never charged him with a crime. No reporter has ever been prosecuted for seeking classified information.
Kim was accused in 2010 of disclosing national defense information; his trial could begin in 2014.
In response to questions about how Rosen was characterized in the affidavit, the Justice Department said in a statement Monday: “Saying that there is probable cause to believe that someone has committed a crime and charging the person with that crime are two different things.”
“No reporter has been charged in this case,” the statement added. “And, at this time we do not anticipate bringing additional charges against anyone.”
The investigation brought another controversy to the doorstep of the White House, where press secretary Jay Carney on Monday was besieged during his daily briefing with questions on whether President Obama believes it is ever a crime for reporters to solicit information from a source.
The Obama administration has pursued more leak investigations under the 1917 Espionage Act than all previous administrations combined; it was criticized last week by the Associated Press for a sweeping search of the news agency’s phone records as part of one ongoing probe. The case against Kim does not include allegations of spying or that he gave any documents to the media. It appears to charge him for having conversations with reporters, something his attorneys have said was part of his job and part of the normal course of business in Washington.
Citing the ongoing criminal investigation, Carney refused to answer most questions about the Kim case. He said that the president “believes very strongly in the need for reporters to be able to pursue investigative journalism” but that he “also has to be mindful of the need to protect classified information because of our national security interests.”
First Amendment advocates are closely watching whether the government will prosecute the anti-secrecy group WikiLeaks as a co-conspirator in the case of Army Pfc. Bradley Manning. The case, advocates say, could set a dangerous precedent that applies to mainstream media outlets and potentially criminalizes the practice of investigative journalism. Manning, who is facing a court-martial in connection with the leaking of 700,000 documents and other materials to WikiLeaks, pleaded guilty this year.
Attorney General Eric H. Holder Jr. told the House Judiciary Committee last week that prosecuting the press for disclosing classified material is not “wise policy.”