New revelations about the manner in which President Obama's Department of Justice has pursued journalists thought to have garnered government secrets is being called not just a "war on whistleblowers," but an assault on "investigative journalism itself."
Last week, uproar followed the Associated Press announcement that the DOJ had sought two months of phone records in order to establish the identity of the government official who may have leaked sensitive information to the news agency.
But following a report in the Washington Post that documents the way a Fox news journalist, James Rosen, had his physical movements tracked, his personal emailed searched, and named a possible "co-conspirator" for trying to obtain information from a government employee—press freedom advocates are expressing renewed outrage that this case seems to go even further than that in the AP incident.
As the Washington Post reports, the story surrounds the case of Stephen Jin-Woo Kim, a government adviser, and James Rosen, the chief Washington correspondent for Fox News. Kim was thought to have leaked restricted, though not top secret, information to Rosen in the Spring of 2009. According to the Post:
Court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist — and raise the question of how often journalists have been investigated as closely as Rosen was in 2010. The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.
“Search warrants like these have a severe chilling effect on the free flow of important information to the public,” said First Amendment lawyer Charles Tobin, who has represented the Associated Press, but not in the current case. “That’s a very dangerous road to go down.”
What makes the Rosen/Kim story so "particularly disturbing," says Guardian columnist Glenn Greenwald, is that -- unlike in the AP incident -- it is the journalist, not just the alleged leaker, who became a focus of the investigation and a possible target for prosecution. He writes, "The DOJ specifically argued that by encouraging his source to disclose classified information - something investigative journalists do every day - Rosen himself broke the law."
"Obama has gone so far beyond what every recent prior president has done in bolstering secrecy and criminalizing whistleblowing and leaks." - Glenn Greenwald
If even the most protected journalists - those who work for the largest media outlets - are being targeted in this way, and are saying over and over that the Obama DOJ is preventing basic news gathering from taking place without fear, imagine the effect this all has on independent journalists who are much more vulnerable.
There is simply no defense for this behavior. Obama defenders such as Andrew Sullivan claim that this is all more complicated than media outrage suggests because of a necessary "trade-off" between press freedoms and security. So do Obama defenders believe that George Bush and Richard Nixon - who never prosecuted leakers like this or formally accused journalists of being criminals for reporting classified information - were excessively protective of press freedoms and insufficiently devoted to safeguarding secrecy? To ask that question is to mock it. Obama has gone so far beyond what every recent prior president has done in bolstering secrecy and criminalizing whistleblowing and leaks.
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As the Washington Post notes:
The court documents don’t name Rosen, but his identity was confirmed by several officials, and he is the author of the article at the center of the investigation. Rosen and a spokeswoman for Fox News did not return phone and e-mail messages seeking comment.
Reyes wrote that there was evidence Rosen had broken the law, “at the very least, either as an aider, abettor and/or co-conspirator.” That fact distinguishes his case from the probe of the AP, in which the news organization is not the likely target.
Using italics for emphasis, Reyes explained how Rosen allegedly used a “covert communications plan” and quoted from an e-mail exchange between Rosen and Kim that seems to describe a secret system for passing along information.
But, as investigative journalists dependent on inside sources know well, these are the kinds of tactics sometimes necessary to protect confidential sources or the identity of government whistleblowers.
As Huffington Post's Jack Mirkinson writes, "It's not clear how different these arrangements, which the Post wrote involved things like code names, were from the elaborate arrangements that Bob Woodward made with Deep Throat. Journalists reacted with particular alarm to the notion that Rosen was an "abettor" simply because he pushed for a source to give him information."
In any event, as Greenwald explains, journalists have never been prosecuted for receiving secret government documents, because the First Amendment is designed to protect their ability and right to do so. He writes:
Under US law, it is not illegal to publish classified information. That fact, along with the First Amendment's guarantee of press freedoms, is what has prevented the US government from ever prosecuting journalists for reporting on what the US government does in secret. This newfound theory of the Obama DOJ - that a journalist can be guilty of crimes for "soliciting" the disclosure of classified information - is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself. These latest revelations show that this is not just a theory but one put into practice, as the Obama DOJ submitted court documents accusing a journalist of committing crimes by doing this.
Making a final push to articulate the seriousness of what the Department of Justice's approach to the Kim/Rosen case says about the Obama Administration's war on journalism, Greenwald argues it's "virtually impossible" for First Amendment advocates to "overstate the threat posed by the Obama DOJ to press freedoms."
"Any journalist who doesn't erupt with serious outrage and protest over this ought never again use that title to describe themselves," he concluded.