Back in 2010, it was said that if you were not “authorized” to have discussed “classified” information disclosed from WikiLeaks, then you could be implicated for crimes under the U.S. Espionage Act. One legal expert warned that the Espionage Act could make “felons of us all.” Now in another scandalous move spurred on because the government can’t contain leaks, the feds accused a Fox News reporter of violating the Espionage Act, acting as "an aider, abettor and/or co-conspirator,” by soliciting classified information from a State Department official. The Obama Administration’s war on whistleblowers does not give the government leak police the right to violate the Constitution and silence the press.
The Department of Justice and FBI believed there was “probable cause” for a search warrant to spy on the Gmail account of Fox News reporter James Rosen; he was suspected of digitally communicating with former State Department contractor Stephen Jin-Woo Kim, who was indicted in 2010 [pdf] and may go to trial in 2014. Rosen and Kim’s movements entering and exiting the State Department were tracked via official ID badges and contact between the two was first uncovered because they had both used desk telephones inside the building.
According to the affidavit [pdf], “From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.” The FBI added, “Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”
“Never in the history of the Espionage Act has the government accused a reporter of violating the law for urging a source to disclose information,” Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project told Wired. “This is a dangerous precedent that threatens to criminalize routine investigative journalism.”
The Federation of American Scientists Project on Government Secrecy pointed out:
What makes this alarming is that “soliciting” and “encouraging” the disclosure of classified information are routine, daily activities in national security reporting. The use of pseudonyms and discreet forms of communication are also commonplace. But for today’s FBI, these everyday reporting techniques are taken as evidence of criminal activity and grounds for search and seizure of confidential email.
Fox News Executive Vice President Michael Clemente stated, "We are 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. We will unequivocally defend his right to operate as a member of what up until now has always been a free press."
However, the Justice Department told the Huffington Post, “To our knowledge, the Department of Justice has never prosecuted a reporter. No reporter has ever been charged by the Department of Justice simply for publishing information obtained through an illegal leak of classified information by a government official. At this time, we do not anticipate bringing any additional charges in this matter.”
“It remains an open question whether it’s ever illegal, given the First Amendment’s protection of press freedom, for a reporter to solicit information,” added The Washington Post, which uncovered the warrant from 2010 to search Rosen’s email due to probable cause of violating the Espionage Act. “No reporter, including Rosen, has been prosecuted for doing so.”
First Amendment lawyer Charles Tobin told The Washington Post, “Search warrants like these have a severe chilling effect on the free flow of important information to the public. That’s a very dangerous road to go down.” Tobin has represented the Associated Press, which was targeted in another Justice Department probe. The feds seized 20 separate telephone lines assigned to AP and its journalists in April and May of 2012, “including work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery.”
AP President and Chief Executive Officer Gary Pruitt sent a letter to Attorney General Eric Holder that protested the “massive and unprecedented intrusion.”
There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP's newsgathering operations and disclose information about AP's activities and operations that the government has no conceivable right to know.
Right before that government invasion came to light, the IRS had been targeting conservative groups that applied for tax-exempt status. Organizations that used words like “patriot” or “tea party” were singled out. Lois Lerner, who heads the IRS division that oversees tax-exempt groups, said, “The IRS would like to apologize for that.”
The Daily Show host Jon Stewart said, “I didn’t realize apologies were sufficient in IRS-related issues.” Stewart ripped into the Obama administration for the Associated Press phone call and IRS targeting scandals. (Potential NSFW language warning: There’s lots of bleeping and lots not bleeped.)
Pro Publica has been charting the Obama administration’s crackdown on whistleblower leaks. Long ago before becoming president, Obama campaigned, “I know a little about whistleblowing and making sure those folks get protection.” He also promised, “We are going to lead by example, by maintaining the highest standards of civil liberties and human rights....No more ignoring the law when it is inconvenient, that is not who we are....We will again set an example for the world that the law is not subject to the whims of stubborn rulers and that justice is not arbitrary.”
God bless and save the USA. Sadly, it seems like scandals about the government violating the Constitution are becoming the new normal.