The FBI's Case for Reading a Fox News Reporter's E-mail

Photograph by Saul Loeb/AFP via Getty Images

A Washington Post scoop provides fresh insight into how the Obama administration responds to intelligence leaks—and how the media entice such leaks.

The Post turned up an FBI search warrant affidavit in the pending case of former State Department contractor Stephen Jin-Woo Kim, who is accused of providing classified information about North Korea to a Fox News correspondent. Kim has pled not guilty.

The 43-page application to search journalist James Rosen’s personal e-mail account, which a federal judge approved in 2010, sheds additional light on the federal government’s aggressive crackdown on leaks. By targeting not only the suspected leaker, but also the media recipient, the Kim investigation foreshadowed the more recent, broader probe in which the FBI sought records of more than 20 phone lines assigned to the Associated Press.

The Post framed its revelation as “a rare peek into a Justice Department leak probe,” and it surely is that. Others, including the New Yorker, have stressed that the FBI described Rosen as “aider and abettor and/or co-conspirator”—in other words, a participant in the alleged crime of revealing American intelligence. Unlike Kim, whose indictment was unsealed in August 2010, Rosen has not been charged.

Fox News said it stands behind its reporter: “We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter,” Michael Clemente, Fox News’ executive vice president of news, said. ”In fact, it is downright chilling. We will unequivocally defend his right to operate as a member of what up until now has always been a free press.”

Republican foes of the Obama administration were quick to turn the Fox episode to partisan advantage. Senator Marco Rubio (R-Fla.) said in a statement on Monday that he is “very concerned” about the reports of “possible criminal prosecution for doing what appears to be normal news-gathering protected by the First Amendment.” He added: “The sort of reporting by James Rosen detailed in the report is the same sort of reporting that helped Mr. Rosen aggressively pursue questions about the Administration’s handling of Benghazi. National security leaks are criminal and put American lives on the line, and federal prosecutors should, of course, vigorously investigate. But we expect that they do so within the bounds of the law, and that the investigations focus on the leakers within the government—not on media organizations that have First Amendment protections and serve vital function in our democracy.”

Dated May 28, 2010, the FBI affidavit details how both FBI investigators and Washington journalists seek information that’s intended to be private. A special agent named Reginald Reyes described how the FBI used security-badge data, phone records, and e-mail exchanges to build its case that in 2009 Kim shared a classified report with Rosen about how North Korea was likely to respond to United Nations sanctions by conducting more nuclear weapons tests. Rosen published an online story on that topic the same day that a top-secret report was made available to certain government intelligence officials, including Kim.

According to the FBI, Rosen employed flattery, intrigue, and even an appeal to idealism to encourage Kim to divulge secrets. “What I’m interested in, as you might expect, is breaking news ahead of my competitors,” Rosen said in one e-mail before the alleged criminal leak of intelligence on North Korea. “Let’s break some news, and expose muddle-headed policy when we see it—or force the administration’s hand to go in the right direction, if possible. The only way to do this is to EXPOSE the policy … and the only way to do that authoritatively is with EVIDENCE.”

At Rosen’s behest, the pair used a “covert communications plan” to exchange information, according to the FBI. The plan included the use of aliases. Rosen called himself “Alex,” an apparent allusion to Alexander Butterfield, the former White House aide responsible for Richard Nixon’s secret Oval Office taping system. Kim called himself “Leo.”

As part of his method, Rosen “returned the favor” to Kim, according to the FBI. Rosen provided Kim “with news articles in advance of their publication concerning intelligence matters,” the affidavit said. One such article was from the Washington Times, the affidavit stated, without explaining how Rosen gained access to the article. Rosen’s communications, as recounted by the FBI, were adorned with warm sign-offs, such as “Yours faithfully, Alex,” and on one occasion, “Hugs and kisses, Alex”.

The Post reported that the Obama administration has pursued more leak cases than all previous administrations combined. The U.S. Justice Department told the Post that in the Kim matter, as in the AP probe, 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.” It seems unlikely, however, that the Kim-Rosen episode will be treated in Washington as a routine exercise of investigative policies.

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