How the Obama administration is trying to criminalize investigative journalism

The Los Angeles Times reports: The FBI obtained a sealed search warrant to read a Fox News reporter’s personal emails from two days in 2010 after arguing there was probable cause he had violated espionage laws by soliciting classified information from a government official, court papers show.

In an affidavit, an FBI agent told a federal magistrate that the reporter had committed a crime when he asked a State Department security contractor, Stephen Jin-Woo Kim, to share secret material about North Korea in June 2009.

The affidavit did not name the reporter, but Fox News identified him as its chief Washington correspondent, James Rosen. He was not charged, but Kim was indicted on espionage charges in August 2010 and is awaiting trial. He has denied leaking classified information.

The case marks the first time the government has gone to court to portray news gathering as espionage, and Fox News officials and 1st Amendment advocates reacted angrily Monday after the secret warrant was reported by the Washington Post.

“We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter,” said Michael Clemente, Fox News executive vice president of news. “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.” [Continue reading…]

Eugene Robinson writes: In both instances [with the AP and Fox News], prosecutors were trying to build criminal cases under the 1917 Espionage Act against federal employees suspected of leaking classified information. Before President Obama took office, the Espionage Act had been used to prosecute leakers a grand total of three times, including the 1971 case of Daniel Ellsberg and the Pentagon Papers. Obama’s Justice Department has used the act six times. And counting.

Obviously, the government has a duty to protect genuine secrets. But the problem is that every administration, without exception, tends to misuse the “top secret” stamp — sometimes from an overabundance of caution, sometimes to keep inconvenient or embarrassing information from coming to light.

That’s where journalists come in. Our job, simply, is to find out what the government doesn’t want you to know. [Continue reading…]

Glenn Greenwald writes: 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. [Continue reading…]

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1 thought on “How the Obama administration is trying to criminalize investigative journalism

  1. Norman

    This Administration goes after whistle blowers and the press, yet allows Wall Street to get away with massive fraud. Perhaps there ought to be a law that restricts being P.O.T.U.S. to those who can demonstrate which way is up & down.

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