The media circle the wagons again

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When will journalists take responsibility for what they do without circling the wagons and shouting that the First Amendment is under attack? I'm talking about the case of Fox News correspondent James Rosen.

The case should be described as a State Department contract worker who signed a non-disclosure agreement, yet is alleged to have leaked Top Secret/Special Compartmented Information in violation of criminal law. He also is alleged to have lied to the FBI.

Search for a story analyzing damage to intelligence collection caused by the leak and what will emerge are stories about the threat to the First Amendment and journalists.

Some background: On June 11, 2009, Mr. Rosen published a scoop on Fox News' website that disclosed how North Korean officials planned to hold another nuclear test in response to an expected U.N. Security Council resolution condemning Pyongyang for recent tests of nuclear and ballistic missiles.

It wasn't the substance of the leaked info that most deeply concerned the intelligence community. Rather it was that Mr. Rosen's story alerted the North Koreans that the United States had penetrated their leadership circle. A second concern was how quickly someone with access to TS/SCI information -- a limited, top-level security classification applied primarily to electronically intercepted messages -- had leaked it.

As Mr. Rosen noted in his article, the CIA had "only learned of North Korea's plans this week" and from "sources inside North Korea." In short, the story warned Pyongyang's counterintelligence specialists that the United States had probably obtained conversations or messages of top-level North Korean officials by electronic intercepts or through agents.

The U.S. leak probe quickly focused on 96 individuals who, before Mr. Rosen's story or on publication day, had access to the relevant intelligence report. Five of those with access to the North Korean report had had contact with Mr. Rosen in the weeks or days leading up to his story's publication.

As of May 28, 2010, 11 months after the probe began, only Stephen Jin-Woo Kim, a senior intelligence adviser in the State Department, had "accessed the intelligence report and ... had contact with [Rosen] on the date of publication of the June 2009 article," according to an affidavit by FBI Special Agent Reginald B. Reyes.

The probe showed that the report had been called up on Mr. Kim's computer three times earlier on the day Mr. Rosen's story appeared. Investigators also found records showing that about the same time the classified report was on Mr. Kim's computer screen, "two telephone calls were placed from his desk phone to" Mr. Rosen, according to the Reyes affidavit.

Using State Department security-badge records that show comings and goings at State's main building, investigators realized that an hour after those phone calls Messrs. Kim and Rosen left the building within a minute of each other. Thirty minutes later they returned within four minutes of each other. Several hours later, Mr. Rosen's story appeared on Fox's website.

Recent articles have implied that the government was physically following Mr. Rosen, but investigators had simply used federal records to track him.

Further investigation of Mr. Kim showed seven calls between his desk phone and Mr. Rosen's phones on the day of the article, and about 29 others between May and July 2009. In a Sept. 24, 2009, FBI interview, Mr. Kim denied being Mr. Rosen's source and having any contact with Rosen after meeting him in March 2009. On Nov. 9, 2009, investigators got a warrant and searched Mr. Kim's e-mail accounts. They found that he and Mr. Rosen had set up aliases and that Mr. Rosen sought intelligence about North Korea.

All reporters covering national security, including myself, recognize we regularly seek classified information. We also know that sources can be accused of breaking the law if caught passing highly classified information to those not cleared to receive it, such as journalists.

While getting my degree at Georgetown Law School and later when I was subpoenaed in the probe of the leak of the identity of CIA covert officer Valerie Plame Wilson, it became clear that reporters could be labeled co-conspirators, aiders and abettors or accessories in criminal leak cases.

To be so named in an application for a search warrant when the government wants to get a journalist's or any citizen's e-mails or phone records does not mean prosecution. A journalist, however, is not very different from other citizens in the eyes of the law when it comes to the government seeking records from a third-party provider such as Google or a phone company.

Applying labels such as co-conspirator provides a probable cause for the judge to grant the warrant, as in the Rosen case. If Mr. Rosen offered money or some other reward, it might be a different case. I believe the First Amendment covers the right to publish information, but it does not grant blanket immunity for how that information is gathered.

When First Amendment advocates say Mr. Rosen was "falsely" characterized as a co-conspirator, they do not understand the law. When others claim this investigation is "intimidating a growing number of government sources," they don't understand history.

The person or persons who told the Associated Press about the CIA operation that infiltrated al-Qaida in the Arabian Peninsula, and Mr. Kim -- or someone else -- who informed Mr. Rosen about North Korea, were not whistleblowers exposing government misdeeds. They harmed national security and broke the law.

The White House Correspondents' Association board issued a statement May 21 saying, "Reporters should never be threatened with prosecution for the simple act of doing their jobs." But it admitted, "We do not know all of the facts in these cases." The board added: "Our country was founded on the principle of freedom of the press and nothing is more sacred to our profession."

I worry that many other journalists think that last phrase should be "nothing is more sacred than our profession."

opinion_commentary

Walter Pincus is a long-time national security writer for The Washington Post.


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