Now Eric Holder and the DOJ are seizing phone & email records of Fox News reporters

[KingpinOG]

The war on journalism.



DOJ Targeting Of Fox News Reporter James Rosen Risks Criminalizing Journalism



DOJ Targeting Of Fox News Reporter James Rosen Risks Criminalizing Journalism


Posted: 05/20/2013 3:28 pm EDT | Updated: 05/20/2013 4:39 pm EDT


WASHINGTON -- The Obama administration’s Justice Department has moved beyond investigating and prosecuting leaks at an unprecedented level to claiming in court documents that committing a standard act of journalism may itself be criminal.

In 2010, FBI agent Reginald Reyes described a reporter, recently identified as Fox News' chief Washington correspondent James Rosen, as possibly being an “aider and abettor and/or co-conspirator” in the leaking of classified information. Reyes made that argument in his request for a warrant for Rosen’s personal email account as part of a leak investigation.

The DOJ’s suggestion that Rosen may be guilty of criminal wrongdoing -- unlike the AP reporters and editors targeted over a May 2012 report about a CIA-thwarted terrorist plot -- is a key difference in the two simmering controversies. The DOJ’s broad use of subpoena power against the AP, revealed last week, has been widely condemned and seen by many as a threat to press freedom and a means to silence sources, including whistleblowers. The DOJ didn't contact the AP before secretly obtaining two months of journalists' phone records, nor did it contact Fox News before getting Rosen's records, a break with the way the government traditionally deals with media outlets.

But the DOJ is now raising further questions about how far the Obama administration will go in rooting out the sources of classified information.

On Sunday night, the Washington Post reported that the Justice Department had obtained a warrant for Rosen’s personal email account in rooting out his source for a June 2009 report that North Korea was expected to respond to a U.N. sanction with a nuclear missile test. The alleged source is government adviser Stephen Jin-Woo Kim, who is being charged under the Espionage Act.

The Obama administration has used the World War I-era law, designed to prosecute spies, in six leak-related cases -- more than all previous administrations combined.

“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information about the Foreign Country,” Reyes wrote in the search warrant application to obtain Rosen’s emails. “The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”




Reyes compared Rosen’s alleged efforts to communicate with Kim through a code to an intelligence officer running a clandestine operation, and alleged that Rosen had “returned the favor” by providing Kim with news articles “in advance of their publication.”

“What I am interested in, as you might expect, is breaking news ahead of my competitors,” Rosen allegedly wrote in an email obtained from one of Kim's accounts that the feds cited as a reason to subpoena all of Rosen's emails.

Kim later allegedly told the FBI that it was “the Reporter’s idea to use covert e-mail communications as a means of compartmentalizing the information and a way for Mr. Kim to ‘feel comfortable talking,’” according to the FBI search warrant affidavit. “I was exploited like a rag doll,” he allegedly said.

The unsealed search warrant affidavit from 2010, which does not specifically identify Rosen by name, mentions that Kim and the reporter both worked out of the State Department building. On the day the article was published, according to the FBI investigation, Kim and Rosen departed the State Department building “at nearly the same time,” were absent for about 25 minutes and returned at around the same time.

FBI investigators determined that Kim and more than 95 other individuals accessed the intelligence report before the publication of the June 2009 article, but that Kim was the only individual who had contact with the reporter on the day of the article's publication.

Internal Justice Department regulations generally require the attorney general to authorize the subpoena of a journalist’s telephone records, but that rule does not apply to email records. DOJ guidelines would also generally require the attorney general to sign off whenever a journalist is arrested or interrogated, but not when an investigation into their conduct is opened.

Attorney General Eric Holder, who recused himself in the AP case, told NPR last week that he's "not sure" how many times he's authorized the obtaining of journalists' records. Holder declined to comment last week as to whether he recused himself from another ongoing investigation believed to focus on the reporting of New York Times correspondent David Sanger.

A spokesman for the U.S. Attorney’s Office for the District of Columbia said in a statement Monday that the office was “limited” in what it could share because of the ongoing prosecution.

“The government exhausted all reasonable non-media alternatives for collecting this evidence before seeking court approval for a search warrant. Based on the investigation and all of the facts known to date, no other individuals, including the reporter, have been charged since Mr. Kim was indicted nearly three years ago,” the statement said.

Fox News executive VP Michael Clemente said Monday in a statement that the network is "outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter."

"In fact, it is downright chilling," Clemente continued. "We will unequivocally defend his right to operate as a member of what up until now has always been a free press.”

Glenn Greenwald, a Guardian columnist and former constitutional lawyer, wrote Monday that "it is not illegal to publish classified information" under U.S. law. Greenwald added that because of this, the DOJ appears to now be arguing that "a journalist can be guilty of crimes for 'soliciting' the disclosure of classified information" as a way to "[criminalize] the act of investigative journalism itself."

While Rosen has not been charged, the legal argument that a journalist could be guilty of a crime by obtaining information from a source drew harsh criticism from journalists at outlets that are not typically on the same side of many issues.

The New Yorker's Ryan Lizza tweeted that the "case against Fox's Rosen, in which O admin is criminalizing reporting, makes all of the other 'scandals' look like giant nothing burgers."

Fox News' Brit Hume said Monday that "the Obama-Holder Justice Department is now prepared to treat the ordinary newsgathering activities of reporters -- trying to seek information from government officials -- as a possible crime." Hume, a veteran Washington journalist, said he couldn't "think of a case where that's ever happened before."

Read the search warrant application below:

 

[newworldafro]

DOJ seizure of AP records raises question: Is 'chilling effect' real? | New Republic

Is the 'Chilling Effect' Real? National-security reporters on the impact of federal scrutiny

Since news broke Monday that the Justice Department had secretly accessed the phone records of Associated Press reporters and editors over a two-month period—likely as a result of its anonymously sourced story on a foiled al Qaeda plot to blow up a U.S.-bound plane—no watchwords have gotten more exercise than “chilling effect.” A bevy of lawmakers, such as Sen. Mark Udall, of the Select Committee on Intelligence, and Sen. Richard Blumenthal, of the Judiciary Committee, have invoked the phrase in calling for the DOJ to justify its actions, while pundits have used it to denounce the same actions as unconscionable: “Not only is it chilling, it is stupid,” the National Journal’s Ron Fournier told the hosts of MSNBC's “Morning Joe.”

The AP’s own story on the probe paraphrases an ACLU lawyer saying that journalists may be cowed out of chasing down national security leads in the face of government scrutiny. But does federal overbearance really have a “chilling effect”?

Apparently so. New York Times reporter Eric Lichtblau told me in an email that, after writing a Pulitzer Prize–winning series of stories with James Risen that revealed major clandestine counterterrorism programs under Bush, like warrantless wiretaps, “I heard from various news sources that the FBI had been monitoring my phone and Internet communications with certain people as part of its leak investigation into our NSA story.” Nearly every national security reporter reached Tuesday had a similar story to tell, as do plenty of their peers.

Lichtblau said that subpoena threats from the DOJ were “the trigger” that caused him to quit writing national security stories in the closing days of the Bush administration. “When I initially moved off the Justice Department beat in 2009, part of the thinking there was the threat of the subpoena,” he said, adding to what he’d written in his email: “While the Justice Department never made good on the threat, it certainly made it more difficult to do my job in dealing with confidential sources when you realize you may be forced to testify before a grand jury or risk going to jail to protect a source.” Rather than roll the dice with incoming Attorney General Eric Holder, Lichtblau decided to cover money-and-politics instead.

Prosecutions that treat federal leakers as criminals have increased since then. “Before this revelation on Monday about the AP, there had been six leak prosecutions under Obama by comparison with, depending on how you count, three in all of previous American history,” said Scott Shane, another national security reporter with the Times.

That has unnerved reporters, he and others said, but even more so their sources: national security officials. In fact, it’s hard to call a reporter on this beat who hasn’t felt sources withdraw as the subpoenas and seizures have piled up. “Officials are reluctant to get anywhere close to the line,” Shane said. “Take drones. The official position is that the government cannot confirm or deny the existence of a drone program in Pakistan. But the president has spoken several times, publicly, about the program. Is someone going to get into trouble for talking about it?” Few want to test the limits. “Sometimes they’ll offer some black humor about it. ‘So you want me to be the next person to go to prison?’ But it actually has been much harder to get people to talk about anything, even in a sensitive-but-unclassified area.”



“I remember pointed jokes about being a little anxious in talking to someone who had been scrutinized like that,” said Times reporter Philip Shenon, whose phone records (along with Judith Miller’s) were seized by the government several years after their reporting allegedly tipped off two al Qaeda–linked charities of impending FBI raids. But for the most part, there’s only added difficulty. Shenon, in trying to figure out which of his sources might be investigated by the government, “sat in front of phone records hour after hour after hour after hour … just thinking there was valuable work I could have been doing, reporting other stories, that was being taken away. I was more guarded about when and where I made telephone calls thereafter. Did I always want to use the office phone when it might be better to meet face to face?” Jane Mayer, a national security reporter for the New Yorker, has had a source targeted by the FBI for potential national security violations, and another who feared being targeted. “People reporters need to be able to speak to become legally quarantined, so there’s no way then to get the story,” she wrote in an email. “It’s a huge impediment to reporting, and so chilling isn’t quite strong enough, it’s more like freezing the whole process into a standstill.”

With the magnifying glass on him and Risen (who had his phone records seized by an unknown arm of the Bush administration), Lichtblau said, sources became more recalcitrant, prolonging and complicating reporting on the Swift program, a secret Bush administration tool to sift U.S. bank data in search of terrorism-related activity, and the FBI’s use of national security letters to make broad demands for private phone records. Lichtblau had similar difficulties while reporting his book Bush’s Law: The Remaking of American Justice. In his hours scouring the phone records the government had nabbed, said Shenon, “I really remember thinking at the time, ‘My goodness, if I were one of my sources, I would never talk to me again, even about stories that really would have been a public service.’”

The DOJ’s seizure of AP records will probably only exacerbate these problems. George Freeman, a First Amendment lawyer for Jenner & Block who served as the Times’s legal counsel for 31 years, said that in the wake of Judith Miller’s prosecution and imprisonment, reporters regularly worried to him that sources were growing more reluctant to share information. “Their sources didn’t want to be on the line anymore, potentially losing their jobs,” he said. He guesses the same will be true in this case. Lichtblau figures most reporters will soldier on. “I think you gotta have the stomach for it to begin with,” he said. “It’s a risk you take when you do certain types of stories.” But, he added, reporters’ jobs are not in danger quite like would-be whistleblowers’, and it’s hard to prove a negative—to know the extent of the “chilling.” As Shenon put it, “I’ll never know what I wasn’t told.”

 

[samtalksradio]

Chilling.

 

[Rekkapryde]

Good.

 

[Rarely-Wrong Liggins]

This dude Holder gives zero fukks.

Even though what he do is wrong I admire his chutzpah.

 

[ltheghost]

There is a fine line between whistle-blower/informant or leaking classified information. If the information you are reporting could possibility get someone killed the DOJ needs to arrest your ass and throw you in jail. It's time the DOJ quit playing around with these leaks and leakers. Time for Fox News to feel some real pain. And I'm all for it. The reporting has been malicious towards this administration and some reporters have gone too far to make a story. If they do find this reporter guilty of leaking classified information than the administration must lock him up for decades. Send a message. Enough is enough. dikk Chaney needs to be in jail for leaking that CIA agent's name because he was trying to get back at her husband. It's time for heads to roll.

 

[Type Username Here]

I can't believe people are in here regurgitating that "it's to keep us safe" nonsense.

Some of you need to read up on Vietnam and The Pentagon Papers. That "leak" pushed this country to end a war and save countless lives here and in Vietnam.

We are going to sit here and act like we haven't tried to pin a rape charge on Assange for revealing our crimes.

Shame on some of you idiots.

 

[¯\_(ツ)_/¯]

I can't believe people are in here regurgitating that "it's to keep us safe" nonsense.

Some of you need to read up on Vietnam and The Pentagon Papers. That "leak" pushed this country to end a war and save countless lives here and in Vietnam.

We are going to sit here and act like we haven't tried to pin a rape charge on Assange for revealing our crimes.

Shame on some of you idiots.

Sure. Exposing government classified information can give acknowledgment to the public about all things within the government such as wars, illicit governmental activity, and so and so fourth.

It can also be a breeding ground for corruption, and create incentives that prejudice the journalistic investigation. Journalists are not responsible to the public. They are responsible to their editors, publishers, and so on. And they have incentives, sometimes competitive ones, that are not the same as the public's interests.

 

[Type Username Here]

Sure. Exposing government classified information can give acknowledgment to the public about all things within the government such as wars, illicit governmental activity, and so and so fourth.

It can also be a breeding ground for corruption, and create incentives that prejudice the journalistic investigation. Journalists are not responsible to the public. They are responsible to their editors, publishers, and so on. And they have incentives, sometimes competitive ones, that are not the same as the public's interests.

What makes you think this government has the public interests' at heart? How would we know if it we only had to rely on official public statements?

Whistle-blowing, "leaks" and the press are essential to informing the public. The last two administrations have increased nailing down on whistleblowers and violating the press.

Just my opinion.

 

[¯\_(ツ)_/¯]

What makes you think this government has the public interests' at heart?

Depends on the circumstances. We do have enemies abroad that want to harm kill innocent people in this country and, believe it or not, there are federal officials that work day in and day out to find these enemies and stop them just as the enemies work day in and day out to achieve their plans. So to protect Americans in the event of wartime I think there's a great deal of interest in the public.

How would we know if it we only had to rely on official public statements?

Since 9/11, we've been involved in a war where secrecy is one of the most critical tools of national defense. Some information pertaining to foreign affairs is imperative to national defense (NSA wiretapping), while some information won't harm the efforts of the government (i.e. CIA prisoners). Some information is inconsequential to an activity, some is seriously damaging, and some are grey areas.

Whistle-blowing, "leaks" and the press are essential to informing the public. The last two administrations have increased nailing down on whistleblowers and violating the press.

Just my opinion.

We also have to make sure these "leaks" and public information is not known to our enemies as well. In a time of war, the press has to think twice about disclosing information that can hurt critical capabilities and whistleblowers should be prosecuted.

 

[kermit da hustla]

The war on journalism.

fox and journalism?

 

[Type Username Here]

Depends on the circumstances. We do have enemies abroad that want to harm kill innocent people in this country and, believe it or not, there are federal officials that work day in and day out to find these enemies and stop them just as the enemies work day in and day out to achieve their plans. So to protect Americans in the event of wartime I think there's a great deal of interest in the public.

That's always been the case. Isn't that the role of the government? But the role of the government has restrictions placed on what they can and can't do. I'd argue that some of these actions are unconstitutional.

Since 9/11, we've been involved in a war where secrecy is one of the most critical tools of national defense. Some information pertaining to foreign affairs is imperative to national defense (NSA wiretapping), while some information won't harm the efforts of the government (i.e. CIA prisoners). Some information is inconsequential to an activity, some is seriously damaging, and some are grey areas.

I agree, but seizing and wiretapping journalists applies to this how? It's the job the press to report news. They didn't leak any operational information or make any agents it seems.

We also have to make sure these "leaks" and public information is not known to our enemies as well. In a time of war, the press has to think twice about disclosing information that can hurt critical capabilities and whistleblowers should be prosecuted.

Here's the deal, no one is leaking an operational intel. The plan in Yemen was already foiled, and the Administration said they knew of no active plot at that time (obviously a lie). So if it wasn't for this leak, the government would have lied and kept things moving. I don't accept this behavior as having to do with my best interests, especially considering an election was imminent. And none of this explains violating the 1st and 4th Amendments to harass the press.

 

[newarkhiphop]

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