New revelations emerged yesterday in the Washington Post that are perhaps the most extreme yet when it comes to the DOJ's attacks on press freedoms. It involves the prosecution of State Department adviser Stephen Kim, a naturalized citizen from South Korea who was indicted
in 2009 for allegedly telling Fox News' chief Washington correspondent,
James Rosen, that US intelligence believed North Korea would respond to
additional UN sanctions with more nuclear tests - something Rosen then reported.
Kim did not obtain unauthorized access to classified information, nor
steal documents, nor sell secrets, nor pass them to an enemy of the US.
Instead, the DOJ alleges that he merely communicated this innocuous
information to a journalist - something done every day in Washington -
and, for that, this arms expert and long-time government employee faces
more than a decade in prison for "espionage".
The focus of the
Post's report yesterday is that the DOJ's surveillance of Rosen, the
reporter, extended far beyond even what they did to AP reporters. The
FBI tracked Rosen's movements in and out of the State Department, traced
the timing of his calls, and - most amazingly - obtained a search
warrant to read two days worth of his emails, as well as all of his
emails with Kim. In this case, said the Post, "investigators did more
than obtain telephone records of a working journalist suspected of
receiving the secret material." It added that "court documents in the
Kim case reveal how deeply investigators explored the private
communications of a working journalist".
But what makes this
revelation particularly disturbing is that the DOJ, in order to get this
search warrant, insisted that not only Kim, but also Rosen - the
journalist - committed serious crimes. The DOJ specifically argued that
by encouraging his source to disclose classified information - something
investigative journalists do every day - Rosen himself broke the law.
Describing an affidavit from FBI agent Reginald Reyes filed by the DOJ,
the Post reports [emphasis added]:
"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. . . . 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."
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.
That same "solicitation" theory, as the New York Times reported back in 2011,
is the one the Obama DOJ has been using to justify its ongoing criminal
investigation of WikiLeaks and Julian Assange: that because Assange
solicited or encouraged Manning to leak classified information, the US
government can "charge [Assange] as a conspirator in the leak, not just
as a passive recipient of the documents who then published them." When
that theory was first disclosed, I wrote that it would enable the criminalization of investigative journalism generally:
"Very
rarely do investigative journalists merely act as passive recipients of
classified information; secret government programs aren't typically reported
because leaks just suddenly show up one day in the email box of a passive
reporter. Journalists virtually always take affirmative steps to encourage its
dissemination. They try to cajole leakers to turn over documents to verify
their claims and consent to their publication. They call other sources to
obtain confirmation and elaboration in the form of further leaks and documents.
Jim Risen and Eric Lichtblau described how they granted anonymity to 'nearly a
dozen current and former officials' to induce them to reveal information about
Bush's NSA eavesdropping program. Dana Priest contacted numerous 'U.S. and
foreign officials' to reveal the details of the CIA's 'black site' program.
Both stories won Pulitzer Prizes and entailed numerous, active steps to cajole
sources to reveal classified information for publication.
"In
sum, investigative journalists routinely — really, by definition — do exactly
that which the DOJ's new theory would seek to prove WikiLeaks did. To indict
someone as a criminal 'conspirator' in a leak on the ground that they took
steps to encourage the disclosures would be to criminalize investigative
journalism every bit as much as charging Assange with 'espionage' for
publishing classified information."
That's what always made the establishment media's silence (or even support) in the face of the criminal investigation of WikiLeaks so remarkable: it was so obvious from the start that the theories used there could easily be exploited to criminalize the acts of mainstream journalists. That's why James Goodale, the New York Times' general counsel during the paper's historic press freedom fights with the Nixon administration, has been warning that "the biggest challenge to the press today is the threatened prosecution of WikiLeaks, and it's absolutely frightening."
Indeed, as Harvard Law Professor Yochai Benkler noted recently in the New Republic,
when the judge presiding over Manning's prosecution asked military
lawyers if they would "have pressed the same charges if Manning had
given the documents not to WikiLeaks but directly to the New York
Times?", the prosecutor answered simply: "Yes, ma'am". It has long been
clear that this WikiLeaks-as-criminals theory could and would be used to
criminalize establishment media outlets which reported on that which
the US government wanted concealed.
Now we know that the DOJ is
doing exactly that: applying this theory to criminalize the acts of
journalists who report on what the US government does in secret, even
though there is no law that makes such reporting illegal and the First
Amendment protects such conduct. Essentially accusing James Rosen of
being an unindicted co-conspriator in these alleged crimes is a major
escalation of the Obama DOJ's already dangerous attacks on press
freedom.
It is virtually impossible at this point to overstate
the threat posed by the Obama DOJ to press freedoms. Back in 2006, Bush
Attorney General Alberto Gonzales triggered a major controversy when he said that the New York Times could be prosecuted
for having revealed the Top Secret information that the NSA was
eavesdropping on the communications of Americans without warrants. That
was at the same time that right-wing demagogues such Bill Bennett were calling for the prosecution of the NYT reporters who reported on the NSA program, as well as the Washington Post's Dana Priest for having exposed the CIA black site network.
But
despite those public threats, the Bush DOJ never went so far as to
formally accuse journalists in court filings of committing crimes for
reporting on classified information. Now the Obama DOJ has.
This week, the New Republic's Molly Redden describes
what I've heard many times over the past several years: national
security reporters have had their ability to engage in journalism
severely impeded by the Obama DOJ's unprecedented attacks, and are
operating in a climate of fear for both their sources and themselves.
Redden quotes one of the nation's best reporters, the New Yorker's Jane
Mayer, this way:
It's a huge impediment to reporting, and so chilling isn't quite strong enough, it's more like freezing the whole process into a standstill."
Redden
says that "the DOJ's seizure of AP records will probably only
exacerbate these problems." That's certainly true: as surveillance
expert Julian Sanchez wrote in Mother Jones this week,
there is ample evidence that the Obama DOJ's seizure of the phone
records of journalists extends far beyond the AP case. Recall, as well,
that the New York Times' Jim Risen is currently being pursued by the Obama DOJ,
and conceivably faces prison if he refuses to reveal his source for a
story he wrote about CIA incompetence in Iran. Said Risen:
I believe that the efforts to target me have continued under the Obama Administration, which has been aggressively investigating whistleblowers and reporters in a way that will have a chilling effect on the freedom of the press in the United States."
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.
Goodale, the New York Times' former general counsel, was interviewed by Democracy Now last week and said this:
AMY
GOODMAN: "You say
that President Obama is worse than President Nixon.
JAMES GOODALE: "Well, more precisely, I say that if in fact he goes ahead and prosecutes Julian Assange, he will pass Nixon. He's close to Nixon now. The AP example is a good example of something that Obama has done but Nixon never did. So I have him presently in second place, behind Nixon and ahead of Bush II. And he's moving up fast. . . .
JAMES GOODALE: "Well, more precisely, I say that if in fact he goes ahead and prosecutes Julian Assange, he will pass Nixon. He's close to Nixon now. The AP example is a good example of something that Obama has done but Nixon never did. So I have him presently in second place, behind Nixon and ahead of Bush II. And he's moving up fast. . . .
"Obama
has classified, I think, seven million — in one year, classified seven million
documents. Everything is classified. So that would give the government the
ability to control all its information on the theory that it's classified. And
if anybody asks for it and gets it, they're complicit, and they're going to go
to jail. So that criminalizes the process, and it means that the dissemination
of information, which is inevitable, out of the classified sources of that
information will be stopped.
JUAN
GONZÁLEZ: "What
about the—
JAMES
GOODALE: "It's very
dangerous. That's why I'm — I get excited when I talk about it."
That
was before it was known that the Obama DOJ read James Rosen's emails by
formally labeling him in court an unindicted co-conspirator for the
"crime" of reporting on classified information. This all just got a lot
more dangerous.
UPDATE
Even journalists who are generally
supportive of Obama - such as the New Yorker's Ryan Lizza - are reacting
with fury over this latest revelation:
Lizza added:
The Daily Beast's Eli Lake said this:
UPDATE II
Several
other journalists have made some excellent points about the dangers
presented by these actions, beginning with the Washington Post's Karen
Tumulty:
That, of course, is precisely the point of the
unprecedented Obama war on whistleblowers and press freedoms: to ensure
that the only information the public can get is information that the
Obama administration wants it to have. That's why Obama's one-side games
with secrecy - we'll prolifically leak when it glorifies the president and severely punish all other kinds
- is designed to construct the classic propaganda model. And it's good
to see journalists finally speaking out in genuine outrage and concern
about all of this.
Meanwhile, to convey just how warped this all
is: it really is true that this very behavior of trying to criminalize
national security reporting was a driving force of the worst elements on
the Right during the Bush years; during the Bush years, I wrote constantly about the dangers to press freedoms
such threats, by themselves, imposed. Please just watch this 4-minute
segment from a 2006 Meet the Press episode where the Washington Post's
Dana Priest explains to Bill Bennett, who had called for her
imprisonment, exactly what press freedoms and the law actually provide;
Bill Bennett is who - and what - the Obama DOJ and its defenders are
channeling today:
http://tinyurl.com/krc5pcr
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