Justice Department's Overreaching on Leaks Threatens Freedom of the Press

A week after the Department of Justice notified the Associated Press that it had secretly seized records for more than 20 phone lines in a leak investigation, The Washington Post uncovered an overlooked search warrant in another leak case that raises similar – and perhaps more serious – constitutional concerns.

The Post reported that in 2010, an FBI counterespionage agent obtained a sealed search warrant for access to the Gmail account of James Rosen, Fox News's chief Washington correspondent. The agent also pulled records from the State Department showing Rosen's comings and goings, as well as telephone records showing phone numbers, times, and durations of calls. The various records and emails were sought as part of a leak investigation into a June 2009 story Rosen wrote reporting that North Korea would conduct a nuclear test in response to a critical United Nations resolution.

Stephen Kim, an analyst with the Lawrence Livermore National Laboratory, is now under indictment for that leak. He has pled not guilty, and his case is one of the six ongoing leak investigations under the Obama administration (twice as many cases as have ever been prosecuted under all previous administrations combined).

The warrant application was unsealed back in November 2011, but it's only with the controversy swirling around the administration's uniquely aggressive stance on national security leaks to the media that the Post discovered and reported on the Fox investigation.

There are a couple of angles here that make the Rosen warrant unique and uniquely troubling.

In recognition of the special status of news gathering under the First Amendment, a federal law—the Privacy Protection Act—bars federal investigators from demanding materials from reporters unless there is probable cause to believe that the reporter himself has committed a crime. That's exactly what the FBI claimed here—that "Reporter has committed or is committing a violation of [the Espionage Act], as an aider and abettor and/or co-conspirator." (The Espionage Act is the primary statute used to target "leaks," and bars the unauthorized disclosure of classified information if the person doing the disclosing has reason to know disclosure could harm the United States).

What's astonishing here is that never before has the government argued that newsgathering—in this case, asking a source to provide sensitive information—is itself illegal. That would, quite literally, make virtually any question by a reporter implicating classified information a potential felony. The logic behind the FBI's warrant application would extend even to a reporter asking a question at a public press briefing at the CIA, Pentagon, or State Department. If the question is designed to elicit the disclosure of classified information, and prompts that disclosure, I don't see how the reporter couldn't be held responsible under the FBI's rationale.

Additionally, the FBI was able to keep the existence of the warrant secret from Rosen because it argued he'd committed a crime. That's similar to what happened with the AP, where the Department of Justice presumably invoked the exception to the notice requirement under DOJ guidelines, which allow for delay when notice could imperil the investigation. However, the delay provision is extremely strong medicine, because delaying notice means that the news outlet is unable to go to a court to challenge the request before the records are turned over. Consequently, the delay provision opens the door to significant abuse, as government agents have an incentive to delay notice because it allows them to avoid going in front of a judge to justify their request.

Walter Pincus, the defense and intelligence correspondent at The Washington Post, had a column this morning somewhat critical of First Amendment advocates expressing concern with the AP leaks investigation. He concludes, "[t]he reality is that this is not a whistleblowing case. There are no heroes here, and the press in this instance was not protecting individuals trying to expose government malfeasance."

But that's missing the point. Classified information is "leaked" every day, sometimes for partisan benefit and sometimes as part of the grand game of bureaucracies in Washington. But, just as we abide "bad" speech to give "good" speech "breathing room" under free speech law, we grant the press special protections from government scrutiny to provide ample space for the press to act "badly" to ensure information in the public interest, even if classified, has the best chance of being disclosed.

In other words, the particulars of the AP and Rosen cases are almost immaterial. The fundamental issue is that the government has lost a sense of proportion in enforcing our national security laws, and that should be of enormous concern to us all.

Update: The seventh paragraph of this blog has been revised slightly to better reflect the government’s allegations in the Rosen case. The affidavit does not allege that Rosen merely asked Kim to comment on a story already written. Rather, the government argues that Rosen implored Kim to turn over sensitive information. This is nevertheless still of great concern, because it means that any media request for information that could qualify or contain "national defense information" could itself constitute a violation of the Espionage Act.

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Anonymous

The article, ...Overreaching on Leaks Threatens Freedom of the Press, was enlightening and very concerning me. My question is after a week what is the ACLU's position? Is it just a concern or has it elevated to a potential legal issue(s) that the ACLU wants to jump in front of? This seems to me to be right up the alley of the ACLU and in line with it's consistent defense of the First Amendment.

Anonymous

----The ACLU used to be a truly great organization, and one I was proud to be a supporter (and donor) of. However, I have been greatly disturbed in recent years as to the politization of this once-great institution.... Thirty years ago, the ACLU would have been ALL OVER the AP/Rosen story, this Administration's use of a branch of the government (IRS) to repress free speech and bully individuals, and the murder of citizens (via drones) without due process........however, as the Union tilts more and more leftward, I (and other former ACLU members) have noticed a decided and chilling silence when First Amendment issues are violated by a Democratic Administration....The ACLU has been reduced to being a mouth piece of the DNC, flexing its muscles most when supporting immigration (and other democratic-friendly legislation). but remaining silent on the issues it was founded on...... It is frightening and sad that an organizaiton meant to protect every American's rights, has diminished itself to representing merely half....

manning for pre...

arrest who arrested manning. ban from gov jobs who thinks manning should be charged. arrest/charge criminals manning exposed.
arrest who forced him to sleep naked w lights on, or sleep deprivation-abuse. no 1 shuold be put in solitary confiement if they are not directly endangering other inmates. prisoners shuold be allowed visitors. charge whoever locked up manning, $8/hr manning was locked up compensation to manning.
activate mass protests and petitions to arrest who arrested manning
charge nsa with espionage.
espionage/spying=to look at/listen to/record someone/something w/o their knowledge or permission, and is legal if its looking at/listening to/recording public property, the outside of things that are outside or in public, anything you have permission to see, things w probable cause or potentially resonable suspicion of finding evidence of crime/gov misconduct, and gov info that is legally sapose to be public
leaking classified info is legal. breaching a paid confidentality contact may result in oweing a refund and loss of occupational licence, not arrest. gov confidentiality agreements to keep info secret that is sapose to be public, is illegal and a void contract. leaking classified info that is sapose to be public, or is probable cause of gov misconduct, is honorable, deserve reward, and what people are sapose to do.
'causing intelligence to be published', 'transmitting defense information', is freedom of press and speech.
manning's search and seizure is lawful there was probable cause of crime/gov misconduct.
legal to search if probable cause or maybe reasonable supicion of gov misconduct/crime, and record or share that info
only criminals say exposeing/leaking evidence of crimes is aiding the enemy because law-abideing people that try to stop crime are a criminal's enemy.
gov who searches and seizies w/o reasonable suspcion, or wants to cover up govs crimes agianst transparency laws within the consitution(that declare the public is sapose to know all gov does(exsept maybe certian info w 75% of the public's permit), is a traitor who betrayed their oath to defend the consitution, and betrayed the public by lieing to them saying they are there for national security when actualy they breach national secuirty, and only secure gov criminals from being prosecuted.
its legal to share (gov info that is legally sapose to be published) with the public
public sector(gov) is sapose to be the public's employees and be publicly viewable
it is a felony to attempt to use the classification system to hide a crime or protect the powerful from embarrassment. Such material remains unclassified even after being stamped.
Title 18 US Code contains the law. Executive order 13526 declares that crimes and embarrassing material CANNOT be classified:

Sec. 1.7. Classification Prohibitions and Limitations.
(a) In no case shall information be classified, continue to be
maintained as classified, or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
Also see
403 U.S. 713 (1971)
NEW YORK TIMES CO. v. UNITED STATES.
No. 1873.
whistle blower law-cant legally get in trouble for reporting crime/gov-misconduct
its gov's job to report and try to stop crime/gov-misconduct, and protect everyone=under the law=not letting some get away w the same type of misconduct you dont let others get away with, =no spying on everyone while baning every1 to spy on u
us army subject schedule no. 27-1 is "the obligation to report all violations of the law of war"
require gov workers report suspected gov-misconduct(exsept under risk. reward reporting gov misconduct under risk.
allowing criminals who spy on entire non-gov w/o their permit, or murders who kill innocents, to go unpunished puts everyone at risk.
put gov under 24-7live public video survailence. subject gov to suprize inspections done by non gov unpaid by gov.
anyone who illegally searches/seizes documents/pcs/videos/pety non survival items(manning didnt do, nsa did) shouldnt be arrested, should be banned from gov jobs, and maybe sml fine.
gov admitted manning leaks didnt put anyone at risk.
no one who hasnt touched someone agianst their will, kidnapped, physcially trapped, physcially abuse/neglected, murdered, tortured, disarmed, or physcially directly endangered someone(ex pointing a gun at someone), shuld go to life in prison.
--
the public is the top of the chain of command, top of the pryamid, the boss of gov, most arnt dum enough to report crimes to the crooks who commited them or crooks-the truth wouldnt get out and wuld be punished for reporting/exposeing.
manning first reported to his higher ups and they didnt care-ban those higher ups from gov jobs.
manning was honest with the public and upheld his orignal oath to the consitution and transparency laws, he isnt a traitor.
if he lied to tyrants in order to get access to info the public is legally owed, tyrants might lable him traitors, otherwise tyrants cant declare him a traitor
gov is like a lion hideing in the grass, slowly and quietly sneaking closer and closer to its prey, waiting to pounce on its prey, doesnt want its prey to see it, and wants to be able to see its prey
charge the policicans who use tax payer$ for their prv security when they can afford it for themself instead of buying themself so much lavish golf, vacations, long distance travel, fashion, fancy dinner..., with theft. the politicans theft of $millions+ is much more severe than manning looking at info on a computer w/o permission. they let the poor die while spending $millions punishing whistleblowers.
if it was your kids that got killed, would u want the murderer to go free and the one who reported it to go to jail?-no, hypocrities.

manning hero

arrest who arrested manning. ban from gov jobs who thinks manning should be charged. arrest/charge criminals manning exposed.
charge nsa w espionage.
espionage/spying=to look at/listen to/record someone/something w/o their knowledge or permission, and is legal if its looking at/listening to/recording public property, the outside of things that are outside or in public, anything you have permission to see, things w probable cause or potentially resonable suspicion of finding evidence of crime/gov misconduct, and gov info that is legally sapose to be public
leaking classified info is legal. breaching a paid confidentality contact may result in oweing a refund and loss of occupational licence, not arrest. gov confidentiality agreements to keep info secret that is sapose to be public, is illegal and a void contract. leaking classified info that is sapose to be public, or is probable cause of gov misconduct, is honorable, deserve reward, and what people are sapose to do.
'causing intelligence to be published', 'transmitting defense information', is freedom of press and speech.
manning's search and seizure is lawful there was probable cause of crime/gov misconduct.
its legal to share (gov info that is legally sapose to be published) with the public
public sector(gov) is sapose to be the public's employees and be publicly viewable
whistle blower law-cant legally get in trouble for reporting crime/gov-misconduct
its gov's job to report and try to stop crime/gov-misconduct, and protect everyone=under the law=not letting some get away w the same type of misconduct you dont let others get away with, =no spying on everyone while baning every1 to spy on u
us army subject schedule no. 27-1 is "the obligation to report all violations of the law of war"
it is a felony to attempt to use the classification system to hide a crime or protect the powerful from embarrassment. Such material remains unclassified even after being stamped.
Title 18 US Code contains the law. Executive order 13526 declares that crimes and embarrassing material CANNOT be classified:

Sec. 1.7. Classification Prohibitions and Limitations.
(a) In no case shall information be classified, continue to be
maintained as classified, or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;

Anonymous

espionage/spying=to look at/listen to/record someone/something w/o their knowledge or permission, and is legal if its looking at/listening to/recording public property, the outside of things that are outside or in public, anything you have permission to see, things w probable cause or potentially resonable suspicion of finding evidence of crime/gov misconduct, and gov info that is legally sapose to be public
leaking classified info is legal. breaching a paid confidentality contact may result in oweing a refund, not arrest. gov confidentiality agreements to keep info secret that is sapose to be public, is illegal and a void contract. leaking classified info that is sapose to be public, or is probable cause of gov misconduct, is honorable, deserve reward, and what people are sapose to do.
'causing intelligence to be published', 'transmitting defense information', is freedom of press and speech.
manning's search and seizure is lawful there was probable cause of crime/gov misconduct.
public sector(gov) is sapose to be publicly viewable
whistle blower law-cant legally get in trouble for reporting gov-misconduct
its gov's job to report and try to stop crime/gov-misconduct, and protect everyone=under the law=not letting some get away w the same type of misconduct you dont let others get away with.
us army subject schedule no. 27-1 is "the obligation to report all violations of the law of war"
it is a felony to attempt to use the classification system to hide a crime or protect the powerful from embarrassment. Such material remains unclassified even after being stamped.
Title 18 US Code contains the law. Executive order 13526 declares that crimes and embarrassing material CANNOT be classified:

Sec. 1.7. Classification Prohibitions and Limitations.
(a) In no case shall information be classified, continue to be
maintained as classified, or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;

Anonymous

us army subject schedule no. 27-1 is "the obligation to report all violations of the law of war"
it is a felony to attempt to use the classification system to hide a crime or protect the powerful from embarrassment. Such material remains unclassified even after being stamped.
Title 18 US Code contains the law. Executive order 13526 declares that crimes and embarrassing material CANNOT be classified:

Sec. 1.7. Classification Prohibitions and Limitations.
(a) In no case shall information be classified, continue to be
maintained as classified, or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;

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