The DOJ was looking over Fox News reporter James Rosen’s shoulder



Given the DOJ’s recent subpoena for the AP’s phone records, I find this report rather chilling. After all, what was really compromised here? I understand going after leaks that compromise national security or even the defensive plans of our allies. But suggesting N. Korea was likely to defy UN sanctions with more nuke tests? I just don’t see reason enough to go after Rosen’s personal emails and his key card access for such a nominal leak as this.

WASHINGTON POST – 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.

The case of Stephen Jin-Woo Kim, the government adviser, and James Rosen, the chief Washington correspondent for Fox News, bears striking similarities to a sweeping leaks investigation disclosed last week in which federal investigators obtained records over two months of more than 20 telephone lines assigned to the Associated Press.

The Kim case began in June 2009, when Rosen reported that U.S. intelligence officials were warning that North Korea was likely to respond to United Nations sanctions with more nuclear tests. The CIA had learned the information, Rosen wrote, from sources inside North Korea.

The story was published online the same day that a top-secret report was made available to a small circle within the intelligence community — including Kim, who at the time was a State Department arms expert with security clearance.

FBI investigators used the security-badge data, phone records and e-mail exchanges to build a case that Kim shared the report with Rosen soon after receiving it, court records show.

In the documents, FBI agent Reginald Reyes described in detail how Kim and Rosen moved in and out of the State Department headquarters at 2201 C St. NW a few hours before the story was published on June 11, 2009.

“Mr. Kim departed DoS at or around 12:02 p.m. followed shortly thereafter by the reporter at or around 12:03 p.m.,” Reyes wrote. Next, the agent said, “Mr. Kim returned to DoS at or around 12:26 p.m. followed shortly thereafter by the reporter at or around 12:30 p.m.”

The activity, Reyes wrote in an affidavit, suggested a “face-to-face” meeting between the two men. “Within a few hours after those nearly simultaneous exits and entries at DoS, the June 2009 article was published on the Internet,” he wrote.

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.

In the exchange, Rosen used the alias “Leo” to address Kim and called himself “Alex,” an apparent reference to Alexander Butterfield, the man best known for running the secret recording system in the Nixon White House, according to the affidavit.

Rosen instructed Kim to send him coded signals on his Google account, according to a quote from his e-mail in the affidavit: “One asterisk means to contact them, or that previously suggested plans for communication are to proceed as agreed; two asterisks means the opposite.”

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.”

Court documents show abundant evidence gathered from Kim’s office computer and phone records, but investigators said they needed to go a step further to build their case, seizing two days’ worth of Rosen’s personal e-mails — and all of his e-mail exchanges with Kim.

Privacy protections limit searching or seizing a reporter’s work, but not when there is evidence that the journalist broke the law against unauthorized leaks. A federal judge signed off on the search warrant — agreeing that there was probable cause that Rosen was a co-conspirator.

Machen’s office said in a statement that it is limited in commenting on an open case, but that the government “exhausted all reasonable non-media alternatives for collecting the evidence” before seeking a search warrant.

However, 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. No reporter, including Rosen, has been prosecuted for doing so.

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