DOJ targeted Fox News’ James Rosen as a “co-conspirator” in another leak case

Turns out, it wasn’t just the Associated Press the DOJ went after, but the administration’s least favorite network Fox News – specifically, James Rosen – for a different “leak” case (bolded emphasis added by me):

A Fox News correspondent was accused in a Justice Department affidavit of being a possible criminal “co-conspirator” for his alleged role in publishing sensitive security information — in a leak case that takes the highly unusual step of claiming a journalist broke the law.

According to court documents, the Justice Department obtained a portfolio of information about Fox News’ James Rosen’s conversations and visits to the State Department. This included a search warrant for his personal emails. 

The effort follows that by the department to secretly obtain two months of phone records from Associated Press journalists as part of a separate leak probe. The department in this case, though, went a step further — as an FBI agent claimed there’s evidence the Fox News correspondent broke the law, “at the very least, either as an aider, abettor and/or co-conspirator.” 

[…]

The case has also caught the attention of Congress. Sen. Marco Rubio, R-Fla., said in a statement Monday he was “very concerned” about the reports of “possible criminal prosecution for doing what appears to be normal news-gathering protected by the First Amendment.”

He added: “The sort of reporting by James Rosen detailed in the report is the same sort of reporting that helped Mr. Rosen aggressively pursue questions about the Administration’s handling of Benghazi. National security leaks are criminal and put American lives on the line, and federal prosecutors should, of course, vigorously investigate. But we expect that they do so within the bounds of the law, and that the investigations focus on the leakers within the government — not on media organizations that have First Amendment protections and serve vital function in our democracy.” 

In the case involving Rosen, a government adviser was accused of leaking information after a 2009 story was published online which said North Korea planned to respond to looming U.N. sanctions with another nuclear test.

Fox News, of course, vows to strongly stand behind Rosen as he battles the feds in the latest scandal to shake up the Obama administration.

Power Line’s John Hinderaker breaks it down:

DOJ obtained Rosen’s email records by obtaining a search warrant that it then served on Google. Along with the search warrant, DOJ also apparently procured a court order barring Google from telling Rosen that his gmail account had been accessed by the government. DOJ obtained the search warrant by submitting a 41-page affidavit by FBI agent Reginald Reyes. You can read the affidavit in its entirety here.

Reyes justified issuance of a search warrant by alleging that there was probable cause to believe that James Rosen had committed a crime–specifically, that he had violated 18 US Code Section 793, which is part of the Espionage Act. In particular, Reyes’s affidavit recites, “there is probable cause to believe that the Reporter [Rosen] has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate.”

Section 793 is the provision that we referred to when, during the Bush administration, we urged that reporters for the New York Times be criminally prosecuted for publishing leaked information about Bush’s anti-terror strategies, in particular NSA’s ability to conduct electronic surveillance and the SWIFT program that tracked the financing of terrorist groups. Does that mean that, for the sake of consistency, we must approve the Obama administration’s covert seizure of James Rosen’s email account?

No. The Espionage Act does not criminalize all publication of classified information. It is specifically limited to information, the publication of which will be damaging to the United States. And that is a good thing, since pretty much everyone agrees that a lot of information is classified improperly.   This is the relevant language of Section 793(d) that is quoted in Reyes’s affidavit:

Whoever, lawfully having possession of…information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates…the same to any person not entitled to receive it…shall be fined under this title or imprisoned not more than ten years or both.

During the Bush administration, we had no doubt that the information published by news organs like the New York Times would, indeed, harm the United States. If terrorists knew that the NSA was intercepting their cell phone communications, they would stop using such phones or devise ways of circumventing the surveillance. Likewise, if they knew that the U.S. government was able to trace bank transfers that wound up in terrorists’ hands, they could stop using those banks and rely on cruder, but less detectable, means of transferring money. Is the same true of the information that, according to the affidavit, Stephen Jin-Woo Kim leaked to Rosen, and that Fox News published?

Here’s Rosen’s article.  It is a SERIOUS legal stretch to think he’d be guilty of violation of the Espionage Act, as Hinderaker goeson to explain:

Would that report damage American interests? It would tell Kim Jong-Il that our intelligence agencies have at least one highly-placed source inside his government, who had knowledge of Kim’s plans in the event of another U.N. Security Council resolution condemning North Korea’s nuclear program. But as long as the news story didn’t point a finger toward any particular individuals, it is hard to see how American interests could be damaged. Rosen specifically noted, in his news article, that Fox was not divulging intelligence sources or methods:

[…]

This obviously distinguishes the Kim/Rosen leak from the ones that we criticized during the Bush administration, the whole point of which was to expose U.S. intelligence-gathering and anti-terror techniques to public view.

Absolutely. Unfortunately, Rosen wasn’t the only Fox reporter the DOJ went after, either. Chilling. Speaking of, WaPo’s Ryan Lizza documented perhaps the most chilling of all from the DOJ’s warrant application against Rosen. The Twitchy Team crew have much more.

Final word from Daily Beast’s Eli Lake:

Serious idea. Instead of calling it Obama’s war on whistleblowers, let’s just call it what it is: Obama’s war on journalism.

— Eli Lake (@EliLake) May 20, 2013

There’s no telling which journalist we’ll hear about next. Stay tuned.