Posted by AzBlueMeanie:
The Washington Post's foreign policy and national security reporter Walter Pincus writes a second reality check for the Beltway media villagers bent out of shape over the Attorney General investigations into national security leaks (not to be confused with whistelblowing). Circling the media wagons:
When will journalists take responsibility for what they do without
circling the wagons and shouting that the First Amendment is under
attack?
I’m talking about the case of Fox News correspondent James Rosen.
The
case should be described as a State Department contract worker who
signed a non-disclosure agreement, yet is alleged to have leaked Top
Secret/Special Compartmented Information (TS/SCI) in violation of
criminal law. He also is alleged to have lied to the FBI.
Search
for a story analyzing damage to intelligence collection caused by the
leak and what will emerge are stories about the threat to the First
Amendment and journalists.
Some background: On June 11, 2009, Rosen published a scoop on Fox
News’s Web site that disclosed how North Korean officials planned to
hold another nuclear test in response to an expected U.N. Security
Council resolution condemning Pyongyang for recent tests of nuclear and
ballistic missiles.
It wasn’t the substance of the leaked info
that most deeply concerned the intelligence community. Rather it was
that Rosen’s story alerted the North Koreans that the United States had
penetrated their leadership circle. A second concern was how quickly
someone with access to TS/SCI information — a limited, top-level
security classification applied primarily to electronically intercepted
messages — had leaked it.
As Rosen noted in his article, the CIA
had “only learned of North Korea’s plans this week” and from “sources
inside North Korea.” In short, the story warned Pyongyang’s
counterintelligence specialists that the United States had probably
obtained conversations or messages of top-level North Korean officials
by electronic intercepts or through agents.
* * *
As of May 28, 2010, 11 months after the probe began, only Stephen
Jin-Woo Kim, a senior intelligence adviser in the State Department’s
Bureau of Verification, Compliance and Implementation, had “accessed the
intelligence report and . . . had contact with the
reporter [Rosen] on the date of publication of the June 2009 article,”
according to an affidavit by FBI Special Agent Reginald B. Reyes.
The
probe showed that the report had been called up on Kim’s computer three
times earlier on the day Rosen’s story appeared. Investigators also
found records showing that about the same time the classified report was
on Kim’s computer screen, “two telephone calls were placed from his
desk phone to the reporter,” meaning Rosen, according to the Reyes
affidavit.
Using State Department security-badge records that show
comings and goings at State’s main building, investigators realized
that an hour after those phone calls Kim and Rosen left the building
within a minute of each other. Thirty minutes later they returned within
four minutes of each other. Several hours later, Rosen’s story appeared
on Fox’s Web site.
Recent articles have implied that the
government was physically following Rosen, but investigators had simply
used federal records to track him.
Further investigation of Kim showed seven calls between his desk
phone and Rosen’s phones on the day of the article, and about 29 others
between May and July 2009. In a Sept. 24, 2009, FBI interview, Kim
denied being Rosen’s source and having any contact with Rosen after
meeting him in March 2009.
On Nov. 9, 2009, investigators got a
warrant and searched Kim’s e-mail accounts. They found that he and Rosen
had set up aliases and that Rosen sought intelligence about North
Korea.
All reporters covering national security, including myself,
recognize we regularly seek classified information. We also know that
sources can be accused of breaking the law if caught passing highly
classified information to those not cleared to receive it, such as
journalists.
While getting my degree at Georgetown Law School and
later when I was subpoenaed in the probe of the leak of the identity of
CIA covert officer Valerie Plame Wilson, it became clear that reporters
could be labeled co-conspirators, aiders and abettors or accessories in
criminal leak cases.
To be so named in an application for a search warrant when the government wants to get a journalist’s or any citizen’s e-mails
or phone records does not mean prosecution. A journalist, however, is
not very different from other citizens in the eyes of the law when it
comes to the government seeking records from a third-party provider such
as Google or a phone company.
Applying labels such as
co-conspirator provides a probable cause for the judge to grant the
warrant, as in the Rosen case. If Rosen offered money or some other
reward, it might be a different case. I believe the First Amendment
covers the right to publish information, but it does not grant blanket
immunity for how that information is gathered.
When First
Amendment advocates say Rosen was “falsely” characterized as a
co-conspirator, they do not understand the law. When others claim this
investigation is “intimidating a growing number of government sources,”
they don’t understand history.
The person or persons who told the Associated Press about the CIA
operation that infiltrated al-Qaeda in the Arabian Peninsula, and Kim —
or someone else — who informed Rosen about North Korea, were not
whistleblowers exposing government misdeeds. They harmed national
security and broke the law.
The White House Correspondents’ Association board issued a statement
May 21 saying, “Reporters should never be threatened with prosecution
for the simple act of doing their jobs.” But it admitted, “We do not
know all of the facts in these cases.” The board added: “Our country was
founded on the principle of freedom of the press and nothing is more
sacred to our profession.”
I worry that many other journalists think that last phrase should be “nothing is more sacred than our profession.”