THE first outraged tweet I saw about it came from the Associated Press's Ron Fournier: the Department of Justice (DOJ) had "tracked Fox News reporter via key card and seized personal emails. #Chilling @AP". That turned out to be a little off-point. The DOJ had checked the visit log of Fox News reporter James Rosen as he was entering and leaving the State Department one day in 2009, and that of State Department officer Stephen Kim, to back up the suspicion that Mr Kim had leaked information from a top-secret intelligence report on North Korea which had just been distributed that day, and which led to Mr Rosen's article a few hours later. This seems unsurprising, and no more or less upsetting than checking an old-fashioned sign-in book would have been. Further, the DOJ had gotten a search warrant from a judge to read two days' worth of Mr Rosen's emails. This goes significantly further, but in a sense it's not terribly surprising either: in an age when the FBI can issue secret National Security Letters to get the authority to read anyone's non-encrypted electronic communications for virtually whatever reason they want, it seems rather quaint to be outraged that the DOJ is using the old-fashioned, relatively transparent route that requires it to show probable cause and get a warrant first.
But the question remains, why did the judge grant the government a warrant to search a reporter's emails? And that's where the troubling part comes in. To convince the judge there was probable cause, the government said it believed Mr Rosen had been a "co-conspirator" with Mr Kim, because he had actively solicited the leak. It is not a crime in America to publish classified information, but it's a crime to leak it, and in this case, the Obama administration was saying Mr Rosen was culpable for encouraging an official to leak. That sort of charge does have a chilling effect on the press: it's supposed to be a reporter's job to press sources to leak as much information as possible. When reporters worry they might land in jail for pushing their questions too hard, that's basically the definition of "chilling effect".
Here's the thing, though: while the DOJ charged Mr Kim in 2010 under the Espionage Act, it did not actually charge James Rosen as a co-conspirator in the case. Prosecutors presented the theory that he was a co-conspirator to the judge when they wanted access to emails they needed as evidence to charge Mr Kim with leaking, but having obtained the emails and charged Mr Kim, they then left Mr Rosen alone. If they were seeking to intimidate the press, burying this accusation in a search-warrant request and then declining to follow up on it is an odd way to do so. Indeed, the government kept the search warrant secret for a year, and it's taken three years for a newspaper to finally notice it happened.
There is, however, another prominent figure whom the US government has aggressively and publicly sought to prosecute as a co-conspirator for encouraging a US government official to leak classified documents. That would be Julian Assange, the founder of WikiLeaks, and currently an international fugitive holed up in the Ecuadoran embassy in London. Let's go to Glenn Greenwald:
That same "solicitation" theory, as the New York Times reported back in 2011, is the one the Obama DOJ has been using to justify its ongoing criminal investigation of WikiLeaks and Julian Assange: that because Assange solicited or encouraged [US Army Corporal Bradley] Manning to leak classified information, the US government can "charge [Assange] as a conspirator in the leak, not just as a passive recipient of the documents who then published them." When that theory was first disclosed, I wrote that it would enable the criminalization of investigative journalism generally...
That's what always made the establishment media's silence (or even support) in the face of the criminal investigation of WikiLeaks so remarkable: it was so obvious from the start that the theories used there could easily be exploited to criminalize the acts of mainstream journalists. That's why James Goodale, the New York Times' general counsel during the paper's historic press freedom fights with the Nixon administration, has been warning that "the biggest challenge to the press today is the threatened prosecution of WikiLeaks, and it's absolutely frightening."
The mainstream press, regardless of ideological colouration, has reacted with uniform anger to the revelation of the buried years-old co-conspiracy theory the government used to get its search warrant on Mr Rosen. The New Yorker's Ryan Lizza has been tweeting furiously about it. There was no such solidarity in reaction to the government's open, public accusations against Mr Assange. Indeed, Fox News commentators were dismissive of Mr Assange's free-speech claims; further on the right, the Washington Times* ran an op-ed piece advocating that Mr Assange be assassinated, and National Review Online's Jonah Goldberg wondered puckishly why he wasn't dead already. Yet Mr Assange's actions were formally exactly the same as those of Fox News's Mr Rosen: he encouraged an American official to leak top-secret information, and then he published it.
What we are seeing here is basically class solidarity on the part of the mainstream press. When the offender was just a weird foreign hacker running a blog staffed with encryption-happy radical volunteers, people who thought of themselves as regular journalists were often disdainful of the effort and ambivalent about how the government treated him. Yes, he felt the full force of the US government come down on his strange white-blonde head, had his money flows interdicted, and ended up as an international pariah, but you know, what he did was pretty shady, right? But now that it seems the US government has leveled the same charges, for the same behaviour, against someone working in the classic model of mainstream American journalism, a regular old reporter like us—well, that's another story.
*Correction: We initially identified the Washington Examiner as the newspaper/website that ran the assassination op-ed. It was the Washington Times. Apologies to the Examiner.
(Photo credit: AFP)