In recent days, it has been disclosed that the Department of Justice (DOJ) subpoenaed telephone records from Fox News reporters, including chief Washington correspondent James Rosen, and obtained a search warrant for the content of Rosen’s email in connection with another leak investigation. State Department adviser Stephen Jin-Woo Kim has been charged with leaking classified information to Rosen.
This is ominous because the Privacy Protection Act generally makes it “unlawful for a government officer…to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication” with an exception when “there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.”
This is precisely what the FBI agent who sought the warrant alleged, claiming that probable cause existed to believe Rosen was a co-conspirator or aider and abettor of criminal activity, which would make him just as guilty as the principal who committed the offense. The judge who issued the warrant in May 2010 seemingly agreed.
There is no question that the DOJ’s actions here may well cause reporters to hesitate before contacting their sources through conventional communications devices and would-be sources to think twice before contacting reporters. While this chilling effect is problematic enough, it is another thing altogether to allege that the reporter who receives classified information is himself a criminal. Although Rosen has not (yet) been charged with a crime, such an allegation by a government official conducting a criminal investigation is, perhaps, the ultimate chilling effect.
It is important, however, to remember that leaking classified information is serious business—especially when national security is implicated. Spies and leakers such as Robert Hanssen, Aldrich Ames, Bradley Manning, and possibly Stephen Kim are rightly excoriated and subject to prosecution for their actions. But that is not the issue.
The affidavit supporting the search warrant application cites e-mails between Rosen and Kim in which Rosen cajoled Kim to provide him with information, asking for things such as “internal memos” and “internal State Department analyses,” some or all of which may have been classified. While Kim may have leaked classified information, characterizing Rosen as an active participant in the leak, rather than as merely a beneficiary of the leak, is a bridge too far.
In an attempt to justify the government’s conduct, an anonymous Administration national security official wrote on a blog site:
If a reporter finds Justin Bieber’s private diary on the street and publishes it, that’s journalism (of a sort). But if she pays someone to break into Bieber’s house to steal the diary, hasn’t she aided and abetted, or conspired in, a crime, even if her intent is to get material to publish? That’s exactly what the Government says happened here—a reporter soliciting, and aiding and abetting criminal activity.
Really? Reporters cajole sources all the time. It is grist for the mill, and analogizing such encouragement to paying someone to steal is quite troublesome. The government protects classified information by having strict internal oversight (of the sort that identified the leak in this case) and by criminalizing the leaking of classified information, not by prosecuting reporters as leakers themselves.
Rather than treading heavily into areas of constitutional concern, the DOJ should recognize that, in the words of former Supreme Court Justice Hugo Black: “A free press is a condition of a free society.”