The Department of Justice needs a thorough housecleaning, but it’s probably not for the reason you think. In fact, these new revelations make the seizure of the AP’s phone records look like pretty small beans. For the first time, the FBI and the Department of Justice are accusing a reporter of being a co-conspirator in an Espionage Act case. More after the squiggley goodness.
Glenn Greenwald has a pretty troubling analysis in today’s Guardian that explores the underpinnings of the search warrants issued in the Espionage Act prosecution of Stephen Kim, an advisor to the state department on North Korean military matters.
As originally reported Washington Post, The filings named not only Kim, but James Rosen, the chief Washington Correspondent for Fox News (not to be confused with James Risen, a New York Times reporter who has already been subpoenaed in several Espionage Act cases). Greenwald’s point is that while the Obama DOJ has vigorously stepped up both Espionage Act prosecutions and subpoenas for reporters’ records, the FBI requests in Rosen’s case reveal something new: DOJ is now arguing that the news gathering process itself is a criminal act, and that the reporter may be an accomplice to the crime.
Under American law, it is not illegal to publish classified information. And in this case, there was no unauthorized access to classified information, nor was secret information disclosed; the case hinges on the fact that Kim had a security clearance, that Rosen and Kim were communicating, and that Rosen then published a story about what the intelligence community believed... or in other words, Rosen was reporting.
Quoting directly from the affidavit submitted by the FBI agent who sought the search warrant, the Post writes:
...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.
Greenwald’s full article is a must-read, both for the scope of the search warrants for Rosen’s records and for the similar theories of prosecution being that are being used in the WikiLeaks case.