DOJ obtains AP phone records

DOJ went after a Fox News reporter:

http://www.washingtonpost.com/local...c473de-be5e-11e2-97d4-a479289a31f9_story.html

[rquoter]A rare peek into a Justice Department leak probe

By Ann E. Marimow, Published: May 19

When the Justice Department began investigating possible leaks of classified information about North Korea in 2009, investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails.

The case of Stephen Jin-Woo Kim, the government adviser, and James Rosen, the chief Washington correspondent for Fox News, bears striking similarities to a sweeping leaks investigation disclosed last week in which federal investigators obtained records over two months of more than 20 telephone lines assigned to the Associated Press.

At a time when President Obama’s administration is under renewed scrutiny for an unprecedented number of leak investigations, the Kim case provides a rare glimpse into the inner workings of one such probe.

Court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist — and raise the question of how often journalists have been investigated as closely as Rosen was in 2010. The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.

“Search warrants like these have a severe chilling effect on the free flow of important information to the public,” said First Amendment lawyer Charles Tobin, who has represented the Associated Press, but not in the current case. “That’s a very dangerous road to go down.”

Obama last week defended the Justice Department’s handling of the investigation involving the AP, which is focused on who leaked information to the news organization about a foiled plot involving the al-Qaeda affiliate in Yemen. AP executives and First Amendment watchdogs have criticized the Justice Department in part for the broad scope of the phone records it secretly subpoenaed from AP offices in Washington, Hartford, Conn., and New York.

“The latest events show an expansion of this law enforcement technique,” said attorney Abbe Lowell, who is defending Kim on federal charges filed in 2010 that he disclosed national defense information. A trial is possible as soon as 2014. “Individual reporters or small time periods have turned into 20 [telephone] lines and months of records with no obvious attempt to be targeted or narrow.”

The president said press freedoms must be balanced against the protection of U.S. personnel overseas. According to the office of Ronald Machen Jr., the U.S. attorney for the District, its prosecutors followed federal regulations by first seeking the information through other means before subpoenaing media phone records. Machen’s office is investigating both the Kim and AP cases. The Justice Department said in a statement that in both cases it had abided by “all applicable laws, regulations, and longstanding Department of Justice policies intended to safeguard the First Amendment interests of the press in reporting the news and the public in receiving it.”

The Obama administration has pursued more such cases than all previous administrations combined, including one against a former CIA official charged with leaking U.S. intelligence on Iran and another against a former FBI contract linguist who pleaded guilty to leaking to a blogger.

The Kim case began in June 2009, when Rosen reported that U.S. intelligence officials were warning that North Korea was likely to respond to United Nations sanctions with more nuclear tests. The CIA had learned the information, Rosen wrote, from sources inside North Korea.

The story was published online the same day that a top-secret report was made available to a small circle within the intelligence community — including Kim, who at the time was a State Department arms expert with security clearance.

FBI investigators used the security-badge data, phone records and e-mail exchanges to build a case that Kim shared the report with Rosen soon after receiving it, court records show.

In the documents, FBI agent Reginald Reyes described in detail how Kim and Rosen moved in and out of the State Department headquarters at 2201 C St. NW a few hours before the story was published on June 11, 2009.

“Mr. Kim departed DoS at or around 12:02 p.m. followed shortly thereafter by the reporter at or around 12:03 p.m.,” Reyes wrote. Next, the agent said, “Mr. Kim returned to DoS at or around 12:26 p.m. followed shortly thereafter by the reporter at or around 12:30 p.m.”

The activity, Reyes wrote in an affidavit, suggested a “face-to-face” meeting between the two men. “Within a few hours after those nearly simultaneous exits and entries at DoS, the June 2009 article was published on the Internet,” he wrote.

The court documents don’t name Rosen, but his identity was confirmed by several officials, and he is the author of the article at the center of the investigation. Rosen and a spokeswoman for Fox News did not return phone and e-mail messages seeking comment.

Reyes wrote that there was evidence Rosen had broken the law, “at the very least, either as an aider, abettor and/or co-conspirator.” That fact distinguishes his case from the probe of the AP, in which the news organization is not the likely target.

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.”

Court documents show abundant evidence gathered from Kim’s office computer and phone records, but investigators said they needed to go a step further to build their case, seizing two days’ worth of Rosen’s personal e-mails — and all of his e-mail exchanges with Kim.

Privacy protections limit searching or seizing a reporter’s work, but not when there is evidence that the journalist broke the law against unauthorized leaks. A federal judge signed off on the search warrant — agreeing that there was probable cause that Rosen was a co-conspirator.

Machen’s office said in a statement that it is limited in commenting on an open case, but that the government “exhausted all reasonable non-media alternatives for collecting the evidence” before seeking a search warrant.

However, it remains an open question whether it’s ever illegal, given the First Amendment’s protection of press freedom, for a reporter to solicit information. No reporter, including Rosen, has been prosecuted for doing so.

In the hours before Rosen’s story was published, Kim was one of more than 95 people who saw the intelligence report through a classified database, according to court documents.

Kim’s phone records showed that seven calls lasting from 18 seconds to more than 11 minutes were placed between Kim’s desk telephone and Rosen’s cellphone and desk phone at the State Department, according to the court documents. Investigators pulled at least two months of phone records from Kim’s desk and found 36 calls with numbers associated with Rosen.

Investigators also scrutinized computer records and found that someone who had logged in with Kim’s user profile viewed the classified report “at or around” the same time two calls were placed from his desk phone to Rosen, according to the documents.

Two months later on an August evening, diplomatic security secretly entered Kim’s office and found a copy of Rosen’s article next to his computer. Kim, who worked in a secure facility, was subject to daily office inspections. The Fox News article was also in “plain view” during follow-up visits in late September.

Kim initially told the FBI in an interview that month that he had met the reporter in March but had not had contact since. Later, Kim admitted to additional contacts, according to the affidavit.[/rquoter]

 

he's a real I Don't Know Man
sitting in I Don't Know Land

 

<blockquote class="twitter-tweet"><p>Can't believe a U.S. president considers it a crime to report news. But unless he reverses course, that is <a href="https://twitter.com/search/%23Obama">#Obama</a>'s legacy. Cc: @<a href="https://twitter.com/presssec">presssec</a></p>&mdash; Ron Fournier (@ron_fournier) <a href="https://twitter.com/ron_fournier/status/336620553500782592">May 20, 2013</a></blockquote>
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glen greenwald tweets well:

<blockquote class="twitter-tweet"><p>Nixon wanted to indict NYT reporter for "conspiracy" for obtaining Pentagon Papers - same theory used by Obama DOJ <a href="http://t.co/bisSxTwK6x" title="http://www.thedailybeast.com/articles/2011/06/13/wikileaks-probe-spoils-pentagon-papers-anniversary.html">thedailybeast.com/articles/2011/…</a></p>&mdash; Glenn Greenwald (@ggreenwald) <a href="https://twitter.com/ggreenwald/status/336527604054122496">May 20, 2013</a></blockquote>
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<blockquote class="twitter-tweet"><p>RT @<a href="https://twitter.com/adamserwer">adamserwer</a> If you prosecute reporters for seeking/receiving leaks, you're basically making non-government sanctioned reporting a crime.</p>&mdash; Robert A George (@RobGeorge) <a href="https://twitter.com/RobGeorge/status/336622502841290752">May 20, 2013</a></blockquote>
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Obama administration mistakes journalism for espionage

By Eugene Robinson, Monday, May 20, 7:48 PM

The Obama administration has no business rummaging through journalists’ phone records, perusing their e-mails and tracking their movements in an attempt to keep them from gathering news. This heavy-handed business isn’t chilling, it’s just plain cold.

It also may well be unconstitutional. In my reading, the First Amendment prohibition against “abridging the freedom . . . of the press” should rule out secretly obtaining two months’ worth of the personal and professional phone records of Associated Press reporters and editors, including calls to and from the main AP phone number at the House press gallery in the Capitol. Yet this is what the Justice Department did.

The unwarranted snooping, which was revealed last week, would be troubling enough if it were an isolated incident. But it is part of a pattern that threatens to redefine investigative reporting as criminal behavior.

The Post reported Monday that the Justice Department secretly obtained phone and e-mail records for Fox News reporter James Rosen, and that the FBI even tracked his movements in and out of the main State Department building. Rosen’s only apparent transgression? Doing what reporters are supposed to do, which is to dig out the news.

In both instances, prosecutors were trying to build criminal cases under the 1917 Espionage Act against federal employees suspected of leaking classified information. Before President Obama took office, the Espionage Act had been used to prosecute leakers a grand total of three times, including the 1971 case of Daniel Ellsberg and the Pentagon Papers. Obama’s Justice Department has used the act six times. And counting.

Obviously, the government has a duty to protect genuine secrets. But the problem is that every administration, without exception, tends to misuse the “top secret” stamp — sometimes from an overabundance of caution, sometimes to keep inconvenient or embarrassing information from coming to light.

That’s where journalists come in. Our job, simply, is to find out what the government doesn’t want you to know.

Sometimes reporters come across information whose disclosure would genuinely put national security at risk. When officials appeal to news organizations on such grounds, editors listen.

The case involving the Associated Press is a good example. The story at issue, published last May, involved details of a CIA operation in Yemen that foiled a terrorist plot to bomb an airliner. AP chief executive Gary Pruitt said on “Face the Nation” that the news service agreed to hold the story after administration officials warned publication would threaten security. The AP published only after officials from two government entities said the threat no longer existed, according to Pruitt.

Ironically, this was a story of success in the fight against terrorism. I have to wonder whether the administration’s real aim is to find out who leaked this bit of good news — or to discourage potential leaks of not-so-rosy news in the future.

The Fox News case is even worse. At issue is a 2009 story about how North Korea was expected to react to a U.N. Security Council resolution criticizing the rogue nation’s nuclear tests. The Justice Department is prosecuting Stephen Jin-Woo Kim, then an analyst working for the State Department, for allegedly leaking to Fox News reporter Rosen a report about what North Korea was thought likely to do.

Prosecutors examined Rosen’s phone records, read his e-mails and, using the electronic record left by his security badge, even tracked when he entered and left the State Department building. How did officials justify such snooping? By asserting in an FBI affidavit, according to The Post, that Rosen broke the law “at the very least, either as an aider, abettor and/or co-conspirator.”

In other words, since there is no law that makes publishing this classified information illegal, the Justice Department claims that obtaining the information was a violation of the Espionage Act.

Rosen has not been charged. Every investigative reporter, however, has been put on notice.

If this had been the view of prior administrations, surely Bob Woodward would be a lifer in some federal prison. The cell next door might be occupied by my Post colleague Dana Priest, who disclosed the CIA’s network of secret prisons. Or by the New York Times’ James Risen and Eric Lichtblau, who revealed the National Security Agency’s eavesdropping program.

A federal “shield” law protecting reporters from having to divulge their sources means nothing if it includes an exception for cases involving national security, as Obama favors. The president needs to understand that behavior commonly known as “whistleblowing” and “journalism” must not be construed as espionage.

http://www.washingtonpost.com/opini...f398e8-c17e-11e2-8bd8-2788030e6b44_story.html

 

<blockquote class="twitter-tweet"><p>Jay Leno: "Lemme tell you how bad it's gotten...Fox News has changed it’s slogan from ‘Fair &amp; Balanced’ to ‘See, I Told You So.’” <a href="https://twitter.com/search/%23tcot">#tcot</a> <a href="https://twitter.com/search/%23p2">#p2</a></p>&mdash; Liz Wheeler (@L_Wheels) <a href="https://twitter.com/L_Wheels/status/336262095156944897">May 19, 2013</a></blockquote>
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