DOJ’s Fox News Surveillance: Legitimate Leak Investigation, Or Outrageous Violation of the First Amendment?

Yesterday the Washington Post broke an explosive story: as part of a leak investigation, the Department of Justice obtained access to Fox News reporter James Rosen’s email account, without giving notice of such access to Rosen, Fox or anyone else:

When the Justice Department began investigating possible leaks of classified information about North Korea in 2009, investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails.

Many observers have reacted with outrage. Fox News released this statement:

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.

DOJ obtained Rosen’s email records by obtaining a search warrant that it then served on Google. Along with the search warrant, DOJ also apparently procured a court order barring Google from telling Rosen that his gmail account had been accessed by the government. DOJ obtained the search warrant by submitting a 41-page affidavit by FBI agent Reginald Reyes. You can read the affidavit in its entirety here.

Reyes justified issuance of a search warrant by alleging that there was probable cause to believe that James Rosen had committed a crime–specifically, that he had violated 18 US Code Section 793, which is part of the Espionage Act. In particular, Reyes’s affidavit recites, “there is probable cause to believe that the Reporter [Rosen] 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.”

Section 793 is the provision that we referred to when, during the Bush administration, we urged that reporters for the New York Times be criminally prosecuted for publishing leaked information about Bush’s anti-terror strategies, in particular NSA’s ability to conduct electronic surveillance and the SWIFT program that tracked the financing of terrorist groups. Does that mean that, for the sake of consistency, we must approve the Obama administration’s covert seizure of James Rosen’s email account?

No. The Espionage Act does not criminalize all publication of classified information. It is specifically limited to information, the publication of which will be damaging to the United States. And that is a good thing, since pretty much everyone agrees that a lot of information is classified improperly. This is the relevant language of Section 793(d) that is quoted in Reyes’s affidavit:

Whoever, lawfully having possession of…information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates…the same to any person not entitled to receive it…shall be fined under this title or imprisoned not more than ten years or both.

During the Bush administration, we had no doubt that the information published by news organs like the New York Times would, indeed, harm the United States. If terrorists knew that the NSA was intercepting their cell phone communications, they would stop using such phones or devise ways of circumventing the surveillance. Likewise, if they knew that the U.S. government was able to trace bank transfers that wound up in terrorists’ hands, they could stop using those banks and rely on cruder, but less detectable, means of transferring money. Is the same true of the information that, according to the affidavit, Stephen Jin-Woo Kim leaked to Rosen, and that Fox News published?

This is the article by Rosen that gave rise to the leak investigation. Rosen reported:

U.S. intelligence officials have warned President Obama and other senior American officials that North Korea intends to respond to the looming passage of a U.N. Security Council resolution this week — condemning the communist country for its recent nuclear and ballistic missile tests — with another nuclear test, FOX News has learned.

What’s more, Pyongyang’s next nuclear detonation is but one of four planned actions the Central Intelligence Agency has learned, through sources inside North Korea, that the regime of Kim Jong-Il intends to take — but not announce — once the Security Council resolution is officially passed, likely on Friday.

The other three actions include the reprocessing of all of the North’s spent plutonium fuel rods into weapons-grade plutonium; a major escalation in the North’s uranium-enrichment program; and the launching of another Taepodong-2 intercontinental ballistic missile from the Yunsong military complex on the west coast of North Korea.

Would that report damage American interests? It would tell Kim Jong-Il that our intelligence agencies have at least one highly-placed source inside his government, who had knowledge of Kim’s plans in the event of another U.N. Security Council resolution condemning North Korea’s nuclear program. But as long as the news story didn’t point a finger toward any particular individuals, it is hard to see how American interests could be damaged. Rosen specifically noted, in his news article, that Fox was not divulging intelligence sources or methods:

FOX News is withholding some details about the sources and methods by which American intelligence agencies learned of the North’s plans so as to avoid compromising sensitive overseas operations in a country — North Korea — U.S. spymasters regard as one of the world’s most difficult to penetrate.

This obviously distinguishes the Kim/Rosen leak from the ones that we criticized during the Bush administration, the whole point of which was to expose U.S. intelligence-gathering and anti-terror techniques to public view.

It it noteworthy that Reyes’s affidavit made no serious effort to show that the leak in question was damaging to American interests–a necessary element of any violation of Section 793, which was the basis for issuance of the warrant. It quotes one email in which Rosen discusses his and Kim’s motives:

In short: Let’s break some news, and expose muddle-headed policy when we see it–or force the administration’s hand to go in the right direction, if possible. The only way to do this is to EXPOSE the policy, or what [North Korea] is up to, and the only way to do that authoritatively is with EVIDENCE.

Beyond that, Reyes stated in paragraph 38 of his affidavit:

The text of the June 2009 article reflects the Reporter’s knowledge and understanding that the information the Reporter had was intelligence information the disclosure of which could be harmful to the United States.

Yes, but Rosen specifically said that he refrained from publishing the information that could be harmful, i.e., about sources and methods. Reyes continued in paragraph 39:

(g) The text of the June 2009 article reflects the Reporter’s knowledge and understanding that the information the Reporter had received was intelligence information the disclosure of which could be harmful to the United States;

(h) Nevertheless, the Reporter published an article on the Internet containing the TOP SECRET/SCI national defense information about the Foreign Country that was in the Intelligence report;

Well, he published some of it–but not the material on sources and methods. If there is anything in the Fox article that was actually damaging to American interests, Reyes never says what it was. Reyes’s only additional effort to show that the leaked disclosures were damaging came in paragraph 35, which summarizes admissions made by Kim when the FBI questioned him:

During the interview Mr. Kim made a number of admissions, including:

* confirming that the Owner’s information disclosed in the 2009 article was national defense information and most of it, in Mr. Kim’s mind, was properly classified at the TOP SECRET/SCI level;

* confirming that the same disclosures in the June 2009 article were, in Mr. Kim’s mind, “egregious,” “bad” and harmful to the national security in a number of respects which he described in detail;

Sadly, Mr. Reyes left it there: whatever “details” Mr. Kim may have referred to are absent from the affidavit. The allegation that the Rosen article was harmful to national security is entirely conclusory.

I am not enough of a criminal lawyer to have an opinion on whether the warrant should have been issued on this weak showing. The only way I can see in which the June 2009 article could have been injurious to the U.S. is if it told North Korea’s rulers something they didn’t already know: that the U.S. has informants high enough up in the regime to have access to the information that was disclosed. Whether this represents a plausible claim of a Section 793 violation will be debated vigorously in the weeks to come. For the moment, we can safely conclude that the Bush-era publication of leaks by the New York Times and other news outlets presented far stronger cases for prosecution under Section 793, and a far more plausible case for seizing reporters’ email accounts and other data, than James Rosen’s article on North Korea.

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