Federal judges should be on notice: The U.S. Justice Department seems fully prepared to stretch the truth or worse, spread falsehoods to obtain search warrants. That's what it did in labeling a journalist as an espionage "co-conspirator" for simply doing what reporters have always done attempting to solicit information from government employees.
As has now been revealed by the Washington Post, the FBI obtained a search warrant in 2009 allowing it to track the emails and phone records of James Rosen, a Fox News reporter. Rosen was working on a story about how North Korea was likely to react to U.N. sanctions. Rosen reportedly received information from Stephen Jin-Woo Kim, a State Department adviser who had received a top-secret CIA memo predicting that the North Koreans might conduct a nuclear missile test in response to U.N. sanctions.
No one is questioning the Obama administration's decision to investigate and prosecute Kim. As Slate columnist Fred Kaplan has written, "Officials with security clearances sign a contract pledging not to share material with the outside world and they know they could face criminal penalties if they do."
Yet it is another matter entirely to label a reporter as "co-conspirator" for attempting to obtain that kind of information. That's what FBI agent Reginald Reyes did in successfully obtaining a search warrant against Rosen from Alan Kay, a U.S. magistrate judge. Reyes stated that Rosen encouraged Kim to disclose sensitive information by "employing flattery and playing to Mr. Kim's vanity and ego."
Last we checked, it wasn't illegal for reporters, or anyone else, to engage in flattery to seek information. And according to several legal experts, this may be the first time a federal agent has suggested that seeking information could be a crime.
As Fox News executive Michael Clemente said in a statement, "It is downright chilling. We will unequivocally defend (Rosen's) right to operate as a member of what up until now has always been a free press."
Conservatives and liberals may not agree on much. Their opinions on Fox News, for instance, vary widely. Yet there should be consensus from both sides on this point: It serves the public interest when a free press is protected from prosecution for attempting to ferret out secrets that the government wants hidden. Once the government has free rein to arrest reporters for learning about secrets, we move one step closer to a totalitarian government.
The Rosen revelation would be damaging enough in isolation. But it comes after disclosures that the Internal Revenue Service targeted "tea party" groups for special reviews of their tax-exempt status. Last week, it was revealed that the Obama Justice Department secretly obtained two months of telephone records for Associated Press reporters and editors as part of a crackdown on leaks of other sensitive information.
The First Amendment is not absolute. The media have an obligation to weigh the consequences of what they report, especially when handling classified information. For the most part, reputable media organizations are extremely careful. In the case of the Associated Press, it had received classified information about a failed al-Qaida plot to blow up an airliner. Because of concerns by CIA officials, it held the story for five days. At the last moment, the CIA (or possibly the White House itself) requested another day, but the AP decided to release its story.
Months later, the Obama administration obtained a warrant to secretly seize the logs of 20 phone lines including home phones of AP reporters and editors, claiming it was trying to track down the source who leaked the information.
The Justice Department of Attorney General Eric Holder, which has pursued more leak investigations under the 1917 Espionage Act than all previous administrations combined, is now trying to backpedal on claims that Rosen might have violated the law. "Saying that there is probable cause and charging the person with a crime are two different things," the department said in a statement Monday.
That just affirms that widespread belief that the Justice Department is willing to go to any lengths to obtain search warrants and create a chilling effect on investigative reporting.
To keep things secret, will federal agents lie to a court? Federal judges, including Alan Kay, should be asking themselves that question.