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When the Justice Department Pursues Reporters as Spies

It has become increasingly well-known that President Barack Obama considers whistleblowers or alleged leakers to be individuals who deserve no protections whatsoever. Recently, with the seizure of the Associated Press’ records and the affidavit showing the Justice Department cast Fox News reporter James Rosen as a “co-conspirator” in a leak investigation into State Department contractor Stephen Kim, it has become clear that the administration is willing to criminalize journalists in order to bolster their own investigations.

Kim is believed by the government to have disclosed classified information to Rosen about North Korea. The FBI claims to have evidence that Rosen “solicited” information from Kim.

Special Agent Reginald B. Reyes of the FBI declared in an affidavit, “I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to SUBJECT ACCOUNT are evidence, fruits and instrumentalities of criminal violations of 18 USC 793(d) (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate.” [italics added]

The argument that there was probable cause that Rosen violated 793(d)—a section of the Espionage Act—was used to obtain further access to records in Rosen’s email account from Google.

James Goodale, former general counsel of the New York Times, who argued the Pentagon Papers case, would likely find this conclusion to be incorrect. In his book, Fighting for the Press, he points out the government submitted a “memorandum of law” where they argued the Times had violated 793(d). This section is only supposed to apply to government employees.

However, there is another way to think about this legal interpretation: the FBI thinks Rosen made it possible for Kim to commit his crime and, without Rosen’s assistance, he would have never leaked classified information. [cont’d]

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."