Greenwald VS. Pillar On Rosen, Leaks

21 May

James RosenGlenn Greenwald is going to the mattresses.

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.

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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.

Paul Pillar discounts the alarm.

A commonly stated myth is that the AP is a “target” of this investigation, or even more preposterously, that it is being “punished.” The actual target of any leak investigation is the leaker; obtaining information about the contacts and activity of journalists is only a way to try to identify that target. It is a simple matter of relative numbers. There are many potential leakers, among the many people inside government who typically have access to information about even fairly sensitive secret subjects—which is why so many leak investigations fail to come up with the culprit. But there is only one news organization that got the scoop.

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The leak case, as with any leak case, also has a broader constituency that is making a fuss and on which Fox and the New York Times are on the same side. Leaks are red meat to journalists, especially ones who work on any kind of a national security beat. And so journalists in general, and the news organizations for which they work, tend to be pro-leak. This means that readers of those organizations’ products are reading articles, not to mention editorials, that are slanted in the direction of criticizing vigorous investigation and prosecution of leaks.

This constituency tries to suggest there is a First Amendment issue involved. There isn’t. There is much talk of how something like the subpoenaing of reporters’ phone records has a “chilling” effect on the work of journalists, but no one explains exactly how and why that should be the case. It is not apparent why even journalistic exploitation of leaks would be chilled, and there certainly is no reason to expect any effect on vigorous reporting of other sorts, including on national security matters.

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