Reporter Deemed “Co-Conspirator” in Leak Case

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.