Flickr Photo by The White House/US Government Work

Attorney General Eric Holder has claimed he has never been involved in the “potential prosecution of the press for the disclosure of material,” but the Justice Department under President Barack Obama has been more than willing to criminalize the press in order to enable or enhance the ability of the department to pursue leak investigations.

Unsealed documents in the investigation into an alleged leak of “national defense information” on North Korea from State Department employee Stephen Kim to Fox News Reporter James Rosen in 2009 show the lengths the Justice Department has been willing to go. Not only did an FBI agent issue an affidavit that alleged Rosen was an “aider, abbettor and co-conspirator” of a crime committed in violation of the Espionage Act but the Justice Department appealed a ruling by a district court judge to prevent Rosen from finding out that his communications were being copied and seized as authorized by a search warrant.

The government maintained that the investigation would “substantially and adversely affected if Mr. Kim or the reporter were to prematurely become aware of the specific details known to the FBI as a result of its investigation and/or the legal process (and targets of that legal process) that is being used during the investigation.” It also contended that, “Ongoing investigative steps that will be taken in the wake of execution of this search warrant, such as interviews and the pursuit of other warrants and legal process, would be adversely affected if the details set forth in the Affidavit were to become publicly available at this time.”

Documents show that files from two Yahoo! email accounts and one Gmail account were targeted. The government sought copies of:

“Any and all communications” includes, without limitation, received messages (whether “to,” “cc’d,” or “bcc’d” to the SUBJECT ACCOUNT), forwarded messages, sent messages (whether “to,” “cc’d,” or “bcc’d” to the three above-listed accounts), deleted messages, and messages maintained in trash or other folders, and any attachments thereto, including videos, documents, photos, internet addresses and computer files sent to and received from other websites. “Any and all communications” further includes all prior email messages in an email “chain” between the SUBJECT ACCOUNT and any of the three above-listed accounts, whether or not those prior emails were in fact sent between the SUBJECT ACCOUNT and the above-listed accounts;

In other words, the government wanted to be able to read communications Rosen had with people in addition to Kim.

As the government believes the alleged leak occurred on or around June 10 or June 11, 2009, the government sought “all prior emails messages in an email ‘chain’ sent ‘to’ or ‘from’ the SUBJECT ACCOUNT” on those dates. They sought “log files, dates, times methods of connecting, ports, dial-ups, registration Internet Protocol (IP) address and/or locations.” And, “All business records and subscriber information, in any form kept, pertaining to the SUBJECT ACCOUNT, as well as records of “applications, subscribers’ full names, all screen names associated with the subscribers, account numbers, screen names, status of accounts, dates of service, methods of payment, telephone numbers, addresses, detailed billing records and histories and profiles.”

The breadth of information or data implicated in the search is chilling alone. They government requested information sent or received on “whatever date.” But, the items the Justice Department seized provide additional reason to be alarmed, as they show that even if the government was not going to indict Rosen they were putting together a criminal case against him.

Altogether, the government requested the seizure of:

  • records or information related to violations of 18 USC 793
  • any and all communications between Stephen Kim and the author of the article that is the subject matter of the FBI investigation that is the basis for this warrant and any record or information that reflects such communications
  • records or information relating to Stephen Kim’s communications and/or activities on the date of publication of the Article
  • records or information relating to the Author’s communication with any other source or potential source of the information disclosed in the Article
  • records or information related to Stephen Kim’s or the Author’s knowledge of laws, regulations, rules and/or procedures prohibiting the unauthorized disclosure of national defense or classified information;
  • records or information related to Stephen Kim’s or the Author’s knowledge of government rules and/or procedures regarding communications with members of the media
  • records or information related to any disclosure or prospective disclosure of classified and/or intelligence information
  • any classified document, image, record or information and any communications concerning such documents, images, records or information
  • any document, image, record or information concerning the national defense, including but not limited to documents, maps, plans, diagrams, guides, manuals and other Department of Defense, US military and/or weapons material, as well as sources and methods of intelligence gathering, and any communications concerning such documents, images, records or information
  • records or information related to the state of mind of any individuals seeking the disclosure or receipt of classified, intelligence and/or national defense information
  • records or information related to the subject matter of the Article

Part of the account information that the government wanted included data on the “means and source of payment for such service (including any credit card or bank account number).” They were looking for “evidence of a crime,” “contraband, fruits of crime, or other items illegally possessed,” and “property designed for use, intended for use, or used in committing a crime.”

Initially, US Magistrate Judge John Facciola ruled on July 21, 2010, that the government had to provide notice that the government was going to Google to seize records and data. Facciola noted an incongruity, that “while the government would have to tell a person that it followed his movements one day as he walked from K Street to Connecticut Avenue,” it would argue it should “never have to tell him that it has read and copied the entire contents of the email account that he opened when he arrived at his office on K Street.”

Citing the Stored Communications Act, Facciola wrote in his ruling, “It can be said with confidence that Congress has never indicated that it considers the giving of notice as a mere formality. To the contrary, in this new world where the government can detect a person’s location by her cell phone signals and read her emails, Congress has required notice but permitted its postponement.”

Indeed, even a warrant for a tracking device must ultimately be given to the person who has been tracked,” Facciola added. “It is irrational to think that Congress would, in the teeth of that care, grant the government a perpetual dispensation from ever notifying a person of the remarkable intrusion that a search of his email account creates.”

The Justice Department continued to oppose giving notice to Rosen and appealed the ruling. Judge Royce Lamberth ruled on September 20, 2010, that “the government did not have to provide notice under the Electronic Communications Privacy Act to Rosen that a warrant had been issued” after the government obtained a stay of the notification to Rosen of email accounts that were the subject of fifteen warrants issued under the Electronic Communications Privacy Act.

Rosen did not receive notice that data on his communications were being copied and seized (however, apparently, as the Wall Street Journal reported, News Corporation, which owns Fox News, was notified and never bothered to inform Fox News).

The zealousness is similar to the leak investigation into former CIA agent Jeffrey Sterling, who was accused of providing information to New York Times reporter James Risen on US government efforts to sabotage Iran’s nuclear program. The administration appealed the decision by a federal judge when he found that Risen had reporters’ privilege and did not have to divulge details on information on his confidential sources.

But, it is also a product of an administration that simply does not believe it has to answer questions from the press that it does not want to answer. David Cay Johnston, a veteran journalist, said on MSNBC this weekend:

Nine days after the President was elected, I wrote a piece about how I called the White House Press Office, I’ve been calling them back to the Nixon days, and people wouldn’t say who they were who answered the prone at the White House Press Office, and how that suggested something troubling that we’ve seen since then…

…The Obama administration is much less open than to journalists than Bush was,” Johnston said. “The Reagan admin was much more open. I had vigorous, tough conversations on the phone and in person with people from the Reagan administration. They may not like your questions, but they respected that it was their job to answer them. The Obama people are like, ‘What are you asking that for? What do you want to know that for?’ And if they don’t like the questions, they just don’t get back to you in many cases…

The Obama administration does not believe it has to be transparent and open on policies, especially national security policies, unless it is ready and prepared to send officials out to give speeches laced with public relations spin or permit administration officials to speak anonymously to major media outlets like the Times or The Washington Post.

It claims to support a media shield law, even as the record is clear that the administration had Congress include a broad national security exception that likely meant Risen would have lost in court when he first argued to a judge that he enjoyed reporters’ privilege.

As Shane Harris demonstrates with his timeline of how the Justice Department went from respecting press freedom to accusing reporters of being part of criminal conspiracies, Attorney General Alberto Gonzales said in February 2006, after details on warrantless wiretapping were published by the Times that “any potential violation [by the newspaper] for publishing that information” would be investigated. Gonzales said, “If the evidence is there, they’re going to prosecute those violations.”

The next month FBI agents demanded copies of “decades-old documents” that Mark Feldstein had been using in his research for a book on investigative columnist Jack Anderson. Like Rosen, they were looking into “violations of the Espionage Act.” Feldstein found this showed the FBI “viewed reporters’ notes as the first stop in a criminal investigation rather than a last step reluctantly taken only after all other avenues” had failed.

In February 2008, reporter Toni Locy, who wrote a series of articles for USA Today in 2001 on Steven Hatfill, the virologist who was identified as a “person of interest” in the anthrax attacks, was held in contempt of court because she refused to identify her sources.

Under Attorney General Eric Holder, the Justice Department engaged in a fishing expedition and seized phone records from the Associated Press. The records came from twenty different phone lines used by 100 journalists during the period of April-May 2010. It was part of a leak investigation into the source of information disclosed on a CIA underwear bomb plot sting operation in Yemen.

The FBI is also engaged in an active investigation into New York Times reporter David Sanger, who published details on United States cyber warfare against Iran last year. According to the Times, “Agents asked the White House, the Defense Department and intelligence agencies for phone and e-mail logs showing exchanges with a New York Times reporter writing about computer attacks on Iran. Agents grilled officials about their contacts with him, two people familiar with the investigation said.”

The Justice Department also apparently mounted investigations into two 2010 articles published by the AP. The Times reported, “One apparently centered on an article by the reporters Matt Apuzzo and Adam Goldman published on June 30, 2010, containing extensive details from an indictment, then still sealed, against Adnan Shukrijumah, accused of being a Qaeda operative.”

WikiLeaks, a media organization entitled to First Amendment protections like other media organizations, has been subjected to a wide investigation by the Justice Department. A secret grand jury was empaneled in Alexandria, Virginia, and WikiLeaks editor-in-chief Julian Assange, staffers and volunteers have all had data and information on communications subpoenaed for publishing documents provided to them by Pfc. Bradley Manning.

Judge Posner wrote an opinion in 2003 that journalists had no “absolute” reporters’ privilege. When issuing a media subpoena, he ruled they needed to be “reasonable in the circumstances,” and added, “We do not see why there needs to be special criteria merely because the possessor of the documents or other evidence sought is a journalist.”

This, along with the fact that the Justice Department—in the case of WikiLeaks—has shown it will claim the authority to decide who is and is not a journalist entitled to First Amendment rights, is evidence of an escalating assault on the First Amendment deeply connected to the efforts by the Obama administration to pursue alleged leakers and whistleblowers vigorously. And, while the administration may claim it has struck a balance between national security and press freedom, it has done nothing of the sort and instead exercised great control on the free flow of information so as to preserve expansions of executive power.