In a startling expansion of the Obama Administration’s war on leaks, a federal agent sought and received a warrant in 2010 to search the email account of Fox News correspondent James Rosen on grounds that there was probable cause the reporter had violated the Espionage Act by soliciting classified information from a State Department official.

This previously undisclosed development was first reported in “A rare peek into a Justice Department leak probe” by Ann E. Marimow, Washington Post, May 19.

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.  (There is no allegation that Mr. Rosen bribed, threatened or coerced anyone to gain the disclosure of restricted information.)

The affidavit also highlights the government’s ability to monitor activity within classified networks with a fine mesh, and to correlate document downloads with external communications.

“So far, the FBI’s investigation has revealed in excess of 95 individuals, in addition to Mr. Kim, who accessed the Intelligence Report [containing the information reported by Mr. Rosen] on the date of the June 2009 article and prior to its publication. To date, however, the FBI’s investigation has not revealed any other individual, other than Mr. Kim, who both accessed the Intelligence Report and who also had contact with the Reporter on the date of publication of the June 2009 article,” the affidavit noted.

Some of the contacts between Mr. Kim and Mr. Rosen could be expeditiously uncovered because both of them were using desk telephones within the Department of State. Likewise, their comings and goings could be readily tracked because both used official ID badges to enter and exit the State Department building.

As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.

“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”

“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”  And so forth.

What makes this alarming is that “soliciting” and “encouraging” the disclosure of classified information are routine, daily activities in national security reporting.  The use of pseudonyms and discreet forms of communication are also commonplace.

But for today’s FBI, these everyday reporting techniques are taken as evidence of criminal activity and grounds for search and seizure of confidential email.

“Based on the foregoing, there is probable cause to believe that the Reporter has committed a violation of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), at the very least, either as an insider, abettor and/or co-conspirator of Mr. Kim,” Mr. Reyes wrote.

The affidavit says that the FBI had exhausted all alternatives to a search warrant for collecting the desired evidence, except for asking Mr. Rosen to voluntarily produce his own email.

“Because of the Reporter’s own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by the warrant.”

The warrant application was approved and signed by U.S. Magistrate Judge Alan Kay on May 28, 2010.  It was sealed until November 7, 2011 but went unnoticed until the Washington Post reported on it late yesterday.

The government seizure of Associated Press telephone records in the course of a leak investigation undermined freedom of the press in the United States, congressional critics said yesterday.

“It seems to me the damage done to a free press is substantial,” said Rep. Zoe Lofgren at a hearing of the House Judiciary Committee.

Pursuant to subpoena, the government captured call records for 20 telephone lines of Associated Press reporters and editors over a two month period last year.  The records are logs of calls made and received, but do not include their contents.  It was a “massive and unprecedented intrusion” into newsgathering activities, wrote the AP’s president Gary Pruitt in a May 13 letter.

The Justice Department denied that the action deviated from established policy.

“We understand your position that these subpoenas should have been more narrowly drawn, but in fact, consistent with Department policy, the subpoenas were limited in both time and scope,” wrote Deputy Attorney General James M. Cole in a May 14 reply.

The  move arose from an AP story about a disrupted bomb plot originating in Yemen that led to the revelation of a classified counterterrorism operation and the existence of a valued agent. “This is among the top two or three serious leaks that I’ve ever seen” said Attorney General Eric Holder. He did not elaborate.

Meanwhile, the upshot is that any presumption of confidentiality in the source-reporter relationship has been compromised across the board, especially but not only in national security reporting.

“Reporters who might have previously believed that a confidential source would speak to them would no longer have that level of confidence, because those confidential sources are now going to be chilled in their relationship with the press,” Rep. Lofgren said yesterday.

Last year, congressional leaders harshly criticized the Obama Administration for supposedly failing to aggressively combat leaks of classified information, including in the present case.

“The Administration’s disregard for the Constitution and rule of law not only undermines our democracy, it threatens our national security,” said Rep. Lamar Smith, at a hearing of the House Judiciary Committee last year. “The Justice Department has not taken the initiative to prosecute leaks of national security secrets. Recent leaks about a foiled bomb plot out of Yemen and a cyberattack against Iran are, in the words of Senate Intelligence Chairwoman Dianne Feinstein, quote, ‘very detrimental, very concerning, and hurt our country,’ end quote.”

The irony was not lost on Rep. Jerrold Nadler.

“I think we should put this in context, and remember that less than a year ago this committee’s Republican leadership demanded aggressive investigation of press leaks, accusing the administration itself of orchestrating those leaks,” he noted. “Then, members of this committee wanted the reporters subpoenaed, put in front of grand juries and potentially jailed for contempt. Now, of course, it is convenient to attack the attorney general for being too aggressive or the Justice Department for being too aggressive.”

“But this inconsistency on the part of my Republican colleagues should not distract us from legitimate questions worthy of congressional oversight, including whether the Espionage Act has been inappropriately used looking at leakers, whether there is a need for a greater press shield,… and Congress’ broad grants of surveillance authority and immunity,” Rep. Nadler said.

Rep. Lofgren said that the damage done to freedom of the press by the clandestine seizure of AP phone records “will continue until corrective action is taken.”

The Government Printing Office is blocking public access to some previously released records of the National Aeronautics and Space Administration, while the records are reviewed to see if they contain export-controlled information.  The move follows the controversial disabling and partial restoration of the NASA Technical Reports Server (NTRS) (NASA Technical Report Database Partly Back Online, Secrecy News, May 9.)

“GPO has been asked to suspend any activity related to making these documents available if they have not been reviewed,” GPO said in a notice today.

“During this time, PURLs that GPO has created for the electronic versions of NASA Technical Reports found in cataloging records accessed through the Catalog of U.S. Government Publications (CGP) may not link to the documents that the catalog record describes.” (h/t Full Text Reports, infoDOCKET)

“In 2009, China overtook the United States to become both the world’s largest producer of and market for motor vehicles,” a new report from the Congressional Research Service notes.

That is not altogether bad news. “Every year since 2010, General Motors has sold more cars in China (through exports and its joint ventures there) than in the United States,” CRS said. “On the other hand, China maintains a number of trade and investment barriers that affect trade flows in autos and auto parts.”

See U.S.-Chinese Motor Vehicle Trade: Overview and Issues, May 13, 2013

Other new and updated reports from the Congressional Research Service that Congress has declined to make publicly available include the following.

Regulation of Fertilizers: Ammonium Nitrate and Anhydrous Ammonia, May 9, 2013

Haiti Under President Martelly: Current Conditions and Congressional Concerns, May 10, 2013

Women in Combat: Issues for Congress, May 9, 2013

The Peace Corps: Current Issues, May 10, 2013

Proposals to Eliminate Public Financing of Presidential Campaigns, May 10, 2013

The Federal Budget: Issues for FY2014 and Beyond, May 9, 2013

The latest reports from the Congressional Research Service include the following.

The Chained Consumer Price Index: What Is It and Would It Be Appropriate for Cost-of-Living Adjustments?, May 8, 2013

Sequestration at the Federal Aviation Administration (FAA): Air Traffic Controller Furloughs and Congressional Response, May 7, 2013

Proposed Cuts to Air Traffic Control Towers Under Budget Sequestration: Background and Considerations for Congress, May 7, 2013

Status of Federal Funding for State Implementation of Health Insurance Exchanges, May 8, 2013

The DHS S&T Directorate: Selected Issues for Congress, May 3, 2013

Chief Justice John Roberts has appointed Judge Michael W. Mosman of the District of Oregon to serve as a judge on the United States Foreign Intelligence Surveillance Court.

The appointment was effective May 4, 2013, and will extend through May 3, 2020, said Mr. Sheldon Snook, a spokesman for the Court.

Judge Mosman replaces Judge Roger Vinson, whose term on the surveillance court expired on May 3, 2013.

Judge Mosman, who was appointed to the bench by President George W. Bush, is generally considered a conservative.  But last March he drew criticism from some on the political right after he granted bail to one Reaz Qadir Khan, who was charged with conspiracy to provide material support to terrorists. Judge Mosman ordered Khan’s release over the government’s objections after he determined that the defendant was not a flight risk or a danger to the community.

“Incredibly, the judge, Michael Mosman, a George W. Bush appointee, allowed Khan to walk free from the federal courthouse pending trial,” complained the conservative watchdog group Judicial Watch in a March 11 posting.

The eleven-member Foreign Intelligence Surveillance Court reviews applications from government agencies for electronic surveillance and physical search under the Foreign Intelligence Surveillance Act.

In 2012, the Court approved 1,788 applications for electronic surveillance and denied none, as noted in a report to Congress last month.

The website of the NASA Technical Reports Server (NTRS), a massive collection of aerospace-related records, was disabled in March due to congressional concerns that it had inadvertently disclosed export-controlled information.  (“NASA Technical Reports Database Goes Dark,” Secrecy News, March 21; “Database Is Shut Down by NASA for a Review,” New York Times, March 22.)

The site is now active again, though hundreds of thousands of previously released documents have been withheld pending review.

Rather than conducting a focused search for actual export-controlled information and then removing it, as would have seemed appropriate, NASA blocked access to the entire collection. The agency acted under pressure from Rep. Frank Wolf (R-VA) of the House Appropriations Committee while it assessed the situation.

Now many of the NTRS records have been restored, including open literature publications, magazine articles, and other documents that were already in the public domain in any case.  But hundreds of thousands of others still await a formal export control review to certify them for public release.  The multi-phase process was described in a NASA email exchange that was released under the Freedom of Information Act.

An air of futility surrounds the whole exercise. Much of the NASA collection has been mirrored on foreign websites, wrote Keith Cowing of NASA Watch, while other withheld reports can be purchased in hardcopy on eBay.

An executive order issued by President Obama today directs that “the default state of new and modernized Government information resources shall be open and machine readable.”

“As one vital benefit of open government, making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans’ lives and contributes significantly to job creation,” states Executive Order 13642 on Making Open and Machine Readable the New Default for Government Information.

The new order was welcomed by the Sunlight Foundation, a proponent of open access to government data, particularly because it establishes a requirement to produce an inventory of “datasets that can be made publicly available but have not yet been released.” That will facilitate enforcement and advancement of the open data agenda, Sunlight said.

While one wants to believe in the efficacy of the order and to affirm the good faith intentions behind it, it is necessary to recognize how remote it is from current practice, particularly in the contentious realm of national security information.

The CIA, for example, has stubbornly refused to release the contents of its CREST database of declassified documents, even though the documents contained there are entirely declassified.  The CREST database is not open, it’s not machine-readable, and you can’t have a copy.

Meanwhile, the Obama White House itself has refused to publish even its unclassified Presidential Policy Directives (with a few exceptions), forcing requesters to litigate for access, or to surrender.

Almost a year and a half after he was nominated by President Obama in December 2011, the Senate yesterday confirmed David Medine to be the chairman of the Privacy and Civil Liberties Oversight Board by a vote of 53-45.

Republicans, led by Sen. Charles Grassley, opposed the nominee and voted against him.

“I was disappointed that he failed to answer a basic yes-or-no question about national security law: ‘Do you believe that we are engaged in a war on terrorism?’,” Sen. Grassley said. “Instead of a simple yes or no, he opted for a more limited answer that military power is permissible in appropriate cases.”

Democrats, led by Sen. Patrick Leahy, praised Mr. Medine and the Board that he will now lead.

“The confirmation of this nominee is a significant victory for all Americans who care about safeguarding our privacy rights and civil liberties,” Sen. Leahy said. “The Privacy and Civil Liberties Oversight Board is a guardian of Americans’ privacy rights and civil liberties as well as an essential part of our national security strategy,” he said.

But this seems like an overstatement.  The size of the five-member Board and the resources available to it are not commensurate with the responsibilities it has nominally been assigned.  It cannot possibly perform comprehensive oversight of the broad range of privacy or civil liberties concerns that arise in the national security domain.  Expectations to the contrary are bound to be disappointed.  At best, the Board may serve as a boutique oversight shop that tackles a couple of discrete policy issues each year.

For background on the origins and development of the Board, see Privacy and Civil Liberties Oversight Board: New Independent Agency Status, Congressional Research Service, August 27, 2012.

The procedures by which the U.S. Air Force establishes international agreements for the exchange of intelligence information with foreign military services were described in a new Air Force Instruction.

“Foreign military organizations being considered for inclusion in an IIA (international intelligence agreement) must clearly support U.S. security and foreign policy objectives. The foreign government must have favorable relations with the United States; a well-developed, secure intelligence service; and a stable domestic environment and military unity. Known national characteristics of the foreign government in question must fall within the guidelines of the United States national disclosure and security policy, and be reasonably expected to have adequate fiscal means, and conform to legal guidelines,” the Instruction states.

Such agreements must “Provide for mutual support (quid pro quo)” and must “Provide intelligence that would otherwise be denied to the United States.”  See Air Force Instruction 14-102, International Intelligence Agreements, April 29, 2013.

Another new Department of Defense Instruction governs records management within the Office of the Secretary of Defense.

“It is DoD policy,” it states, “to limit the creation of records to those essential for the efficient conduct of official business and to preserve those of continuing value while systematically eliminating all others.”  See OSD Records and Information Management Program, Administrative Instruction 15, May 3, 2013.

Other noteworthy new military publications include the following.

Information Operations (IO), DoD Directive 3600.01, May 2, 2013

Defense Advanced Research Projects Agency (DARPA), DoD Directive 5134.10, May 7, 2013

New and updated reports from the Congressional Research Service that Congress has not made available to the public include the following.

The U.S. Science and Engineering Workforce: Recent, Current, and Projected Employment, Wages, and Unemployment, May 6, 2013

Securing U.S. Diplomatic Facilities and Personnel Abroad: Background and Policy Issues, May 7, 2013

Tax Reform in the 113th Congress: An Overview of Proposals, May 6, 2013

Border Security: Immigration Enforcement Between Ports of Entry, May 3, 2013

Terrorist Watch List Screening and Background Checks for Firearms, May 1, 2013

Missing Adults: Background, Federal Programs, and Issues for Congress, May 7, 2013

Kosovo: Current Issues and U.S. Policy, May 7, 2013

Central America Regional Security Initiative: Background and Policy Issues for Congress, May 7, 2013

Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives, May 2, 2013

The theory and practice of no-fly zones, including questions of their legal authorization and financial cost, are reviewed in a newly reissued report from the Congressional Research Service. The report does not reference the current conflict in Syria. See No-Fly Zones: Strategic, Operational, and Legal Considerations for Congress, May 3, 2013.

Some of the other most recent CRS products (all of which are updates today) are these:

Instances of Use of United States Armed Forces Abroad, 1798-2013, May 3, 2013

Military Funeral Honors and Military Cemeteries: Frequently Asked Questions, May 3, 2013

The Fair Labor Standards Act (FLSA): An Overview, May 3, 2013

Child Support Enforcement Program Incentive Payments: Background and Policy Issues, May 2, 2013

Energy and Water Development: FY2013 Appropriations, April 25, 2013

Nuclear Energy: Overview of Congressional Issues, April 29, 2013