FBI Warrant Labels Fox Reporter a 'Co-Conspirator' in Leak

The newly published request for a search warrant of James Rosen’s email account makes clear that Rosen himself is a target of the investigation. The document compares Rosen to an “intelligence officer” whose actions make him a “co-conspirator” rather than a reporter doing his job.

At issue is a 2009 article by Fox News’ James Rosen which allegedly contained classified information gained from a source within the State Department. While it is illegal for a government employee to hand over secret information to a reporter, it is not illegal for a reporter to publish that information. However, the Obama administration seems intent on challenging that assumption.

The request for a search warrant dated May 28, 2010 claims that Rosen’s emails should be turned over to the FBI because he is complicit in illegal activity [Emphasis added]:

(a).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 County. Indeed, in the May 20, 2009 e-mail, the Reporter solicits from Mr. Kim some of the national defense intelligence information that was later the subject matter of the June 2009 article;
(b). The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego;
(c). Much like an intelligence officer would run an clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan that involved the e-mail of either one or two asterisks to what appears to be a e-mail account set up by the Reporter, to facilitate communication with Mr. Kim and perhaps other sources of information.
(d) To conceal further their communications, the Reporter and Mr. Kim employed aliases in their e-mail communication to each other (i.e. Mr. Kim is “Leo” and the Reporter is “Alex”);

Based on this information the document concludes “there is probable cause to believe that the Reporter has committed a violation of 18 U.S.C. § 793 (Unauthorized Disclosure ofNational Defense Information), at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim.” [Emphasis added]

Bloomberg noted last year that Attorney General Eric Holder has prosecuted more alleged leakers than all previous Attorneys General combined. But those prosecutions have focused on the people doing the leaks, not on the reporters who publish the information.

The targeting of James Rosen’s emails, along with the similar targeting of Associated Press phone records suggests the Obama administration is willing to prosecute reporters for doing their jobs. The head of the Associated Press has called the action “unconstitutional.” And according to one reporter for the NY Times, the attention is already having a chilling effect.

Glenn Greenwald notes that the treatment of Rosen is similar to the treatment of Julian Assange. He also points out that this pattern has put the Obama administration in a category it probably wants to avoid. James Goodale, a former General Counsel for the New York Times in the Pentagon Papers case, says the administration is already on a par with Nixon even before word of the treatment of James Rosen.