Fox News Reporter May Face Criminal Charges for Reporting on the CIA

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The government will use any and all information at its disposal to find journalist sources, as shown in The Washington Post's report this morning on a Department of Justice investigation into Fox News chief correspondent James Rosen, who may face criminal charges for reporting government secrets.

In June 2009, Rosen reported on CIA analysis suggesting that North Korea might respond to new UN sanctions with renewed nuclear tests. In order to determine how Rosen learned of the analysis, which had been issued by the CIA only a few hours prior, FBI investigators used every tool at their disposal: analyzing Rosen's security access card to determine when he entered and left the State Department building, studying his phone records, and subpoenaing his personal email.

Ultimately, agents determined the source of the leak was likely the State Department's Stephen Jin-Woo Kim. Rosen and Kim established a high-tech version of the red-flag-in-a-planter system used by Bob Woodward during Watergate: when Kim wanted to meet, he would allegedly send an email to Rosen's Gmail account containing an asterisk. Rosen detailed the sorts of things he wanted to discuss.

He also wrote, according to the affidavit: “What I am interested in, as you might expect, is breaking news ahead of my competitors” including “what intelligence is picking up.” And: “I’d love to see some internal State Department analyses.”

According to the Post report, that's what Kim allegedly provided. And the way in which he did so appears to have been indiscreet. Their federally distributed security passes showed that Rosen and Kim left and returned to a building at the same time on the day of the leak. Kim's department phone records showed a number of calls between him and Rosen. When you work directly for Big Brother, you're likely to be caught.

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That aside, the most alarming detail is the implication for Rosen. Another tool the FBI wants to use to make an example in this case is a federal indictment of the journalist.

[FBI agent Reginald] 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 email exchange between Rosen and Kim that seems to describe a secret system for passing along information.

The United States government wants to charge a reporter for reporting on classified information. By agreeing to authorize a search warrant in the case, the Post reports, the judge overseeing the case agreed with the FBI that Rosen might be a conspirator. Whether or not someone in Kim's position should receive whistleblower protection for revealing a state secret is one debate. Whether or not the person that hears the whistle should be charged is another issue altogether.

Linking the Kim case to Julian Assange, similarly investigated for sharing information leaked to him, The Guardian's Glenn Greenwald 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.

Over the weekend, the CEO of the Associated Press, Gary Pruitt, was interviewed on CBS' Face the Nation. Pruitt indicated that Justice's recently revealed investigation into a 2012 leak is causing existing sources to balk.

Already, officials that would normally talk to us and people we talk to in the normal course of news gathering are already saying to us that they're a little reluctant to talk to us. They fear that they-- they will be monitored by the government.

How and when the government can seize records form the media is tightly described. As in the case of the AP, the Obama Justice Department has proven more than willing to try to loosen those restrictions. Now we learn that the idea includes extending the chilling effect of prosecutions to the reporters trying to hold them accountable.

Update, 2:14 p.m.: Fox News has released a statement on Rosen to

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.

Update, 12:10 p.m.: Journalist Dan Froomkin got a copy of the search warrant issued to Google to access Rosen's account. The FBI had one side of several email exchanges from Kim's account; the warrant seeks Rosen's.

Key sections of the warrant — which can be read in full at the bottom of the article — follow. Emphasis in the original.

[T]he Intelligence Report was accessed by Mr. Kim's user profile at or around 11:27 a.m., 11 :37 a.m., and 11:48 a.m. on the date the article was published.
[T]elephone call records for Mr. Kim's office phone reveal that at or around the same time that Mr. Kim's user profile was viewing the TSISCI Intelligence Report two telephone calls were placed from his desk phone to the Reporter.

Rosen described how he'd protect Kim's identity in an email.

As I told you when we met, I can always go on television and say: "Sources tell [name of the Reporter's national news organization}" But I am in a much better position to advance the interests of all concerned if I can say: "[Name of the Reporter's national news organization] has obtained. . . "

The warrant concludes:

Warrant to access Rosen's GMail account

Photo: President Obama and Attorney General Eric Holder outside the Capitol. (AP)

This article is from the archive of our partner The Wire.