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The Justice Department spied extensively on Fox News reporter James Rosen in 2010, collecting his telephone records, tracking his movements in and out of the State Department and seizing two days of Rosen’s personal emails, the Washington Post reported on Monday.
In a chilling move sure to rile defenders of civil liberties, an FBI agent also accused Rosen of breaking anti-espionage law with behavior that—as described in the agent's own affidavit—falls well inside the bounds of traditional news reporting. (Disclosure: This reporter counts Rosen among his friends.)
UPDATE: Fox News responds with a blistering statement that asserts Rosen was "simply doing his job" in his role as "a member of what up until now has always been a free press.”
The revelations surfaced with President Barack Obama’s administration already under fire for seizing two months of telephone records of reporters and editors at the Associated Press. Obama last week said he makes “no apologies” for investigations into national security-related leaks. The AP's CEO, Gray Pruitt, said Sunday that the seizure was "unconstitutional."
The Obama administration has prosecuted twice as many leakers as all previous administrations combined.
“The president is a strong defender of the First Amendment and a firm believer in the need for the press to be unfettered in its ability to conduct investigative reporting and facilitate a free flow of information,” White House press secretary Jay Carney insisted last week. “He also, of course, recognizes the need for the Justice Department to investigate alleged criminal activity without undue influence.”
The details of the government's strategy against Rosen sound like something out of a spy novel.
Investigators looking into disclosures of sensitive information about North Korea got Rosen’s telephone records and a warrant for his personal emails but also used his State Department security badge to track his movements in and out of that building, the Post reported, citing court documents.
The case began when Rosen reported on June 11, 2009, that U.S. intelligence believed North Korea might respond to tighter United Nations sanctions with new nuclear tests. Rosen reported that the information came from CIA sources inside the hermetic Stalinist state.
Investigators zeroed in on State Department arms expert Stephen Jin-Woo Kim, who was among a small group of intelligence officials to receive a top-secret report on the issue the same day that Rosen's piece ran online.
But FBI agent Reginald Reyes wrote that there was evidence Rosen had broken the law, “at the very least, either as an aider, abettor and/or co-conspirator,” the Post said.
And just what did Rosen do? Here's Reyes in an affidavit to support his request for a search warrant:
“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information about the Foreign Country," the FBI agent wrote. "The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”
"Much like an intelligence officer would run an clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan," Reyes said, explicitly comparing reportorial tactics to espionage.
Here is how the Post described another section of Reyes' report:
Using italics for emphasis, Reyes explained how Rosen allegedly used a “covert communications plan” and quoted from an e-mail exchange between Rosen and Kim that seems to describe a secret system for passing along information.
In the exchange, Rosen used the alias “Leo” to address Kim and called himself “Alex,” an apparent reference to Alexander Butterfield, the man best known for running the secret recording system in the Nixon White House, according to the affidavit.
Rosen instructed Kim to send him coded signals on his Google account, according to a quote from his e-mail in the affidavit: “One asterisk means to contact them, or that previously suggested plans for communication are to proceed as agreed; two asterisks means the opposite.”
He also wrote, according to the affidavit: “What I am interested in, as you might expect, is breaking news ahead of my competitors” including “what intelligence is picking up.” And: “I’d love to see some internal State Department analyses.”
The communications system is a bit cloak-and-dagger, but it's not clear from the Post report or the affidavit that Rosen did anything outside the bounds of traditional reporting. People who know Rosen will smile at the Butterfield reference: The tenacious Fox News reporter is known as a Beatles fanatic, Tom Wolfe devotee and Watergate obsessive.