DOJ Crosses New Line in Leak Investigation of Fox News Correspondent James Rosen

A few years ago I wrote an op-ed that gave these reasons (among others) why the USG should not prosecute Julian Assange for the WikiLeaks disclosures of State Department cables:

A conviction [of Assange] would also cause collateral damage to American media freedoms.  It is difficult to distinguish Assange or WikiLeaks from The Washington Post.  National security reporters for The Post solicit and receive classified information regularly.  And The Post regularly publishes it.  The Obama administration has suggested it can prosecute Assange without impinging on press freedoms by charging him not with publishing classified information but with conspiring with Bradley Manning, the alleged government leaker, to steal and share the information.  News reports suggest that this theory is falling apart because the government cannot find evidence that Assange induced Bradley to leak.  Even if it could, such evidence would not distinguish the many American journalists who actively aid leakers of classified information.

The assumption of my argument was that the extension of anti-leak laws to include press solicitation of classified information would be novel and potentially constitutionally problematic. Today, the Washington Post reports that the Obama administration has now crossed that line (or, more accurately, crossed the line several years ago).  The story makes clear that the Justice Department leak investigation of a former State Department contractor Stephen Jin-Woo Kim, who was indicted in 2010, is now operating on the theory that solicitation of classified information by a reporter can constitute a violation of a component of the Espionage Act.  In a 2010 application for a search warrant of the email account of Fox News correspondent James Rosen, FBI Agent Reginald B. Reyes stated his belief that the account would contain evidence of Mr. Kim’s allegedly illegal leak of classified information, and added: “there is probable cause to believe that the Reporter 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” (emphasis added). Steven Aftergood of Secrecy News notes that the legal theory underlying the warrant constitutes “a startling expansion of the Obama Administration’s war on leaks.”  Aftergood adds:

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.  (There is no allegation that Mr. Rosen bribed, threatened or coerced anyone to gain the disclosure of restricted information.)

After quoting FBI descriptions of Rosen soliciting and encouraging Kim to disclose the information, and comparisons of Rosen to “an intelligence officer would run an [sic] clandestine intelligence source,” Aftergood says: “What makes this alarming is that 'soliciting' and 'encouraging' the disclosure of classified information are routine, daily activities in national security reporting.” Aftergood’s analysis is worth a full read, as is Glenn Greenwald’s.