“Circling The Media Wagons”: Journalists Are No Different Than Other Citizens In The Eyes Of The Law
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 (TS/SCI) 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, Rosen published a scoop on Fox News’s Web site 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 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 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 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 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’s Bureau of Verification, Compliance and Implementation, had “accessed the intelligence report and . . . had contact with the reporter [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 Kim’s computer three times earlier on the day Rosen’s story appeared. Investigators also found records showing that about the same time the classified report was on Kim’s computer screen, “two telephone calls were placed from his desk phone to the reporter,” meaning 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 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, Rosen’s story appeared on Fox’s Web site.
Recent articles have implied that the government was physically following Rosen, but investigators had simply used federal records to track him.
Further investigation of Kim showed seven calls between his desk phone and 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, Kim denied being 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 Kim’s e-mail accounts. They found that he and Rosen had set up aliases and that 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 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 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-Qaeda in the Arabian Peninsula, and Kim — or someone else — who informed 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.”
By: Walter Pincus, The Washington Post, May 27, 2013
“Regrettable Indeed”: John McCain’s Allies In Syria Are Suspected Terrorist’s Who’ve Sworn Allegiance To Al Qaeda
A couple of weeks ago, Sen. John McCain (R-Ariz.) was stressing his position for U.S. policy in Syria: the senator wants the U.S. to provide Syrian rebels with extensive support, including “heavy weapons.” ABC’s Martha Raddatz reminded the senator that some of these Syrian rebels are terrorist who’ve sworn their allegiance to al Qaeda.
McCain said it’s a “legitimate” question, but he wants to support them anyway. After all, he said, “there aren’t that many” terrorists among the Syrian rebels he wants to give “heavy weapons” to.
Just two weeks later, McCain quietly traveled to Syria, and his office distributed photos from his visit to news organizations. One image, in particular, has generated some unexpected attention.
Senator John McCain’s office is pushing back against reports that while visiting Syria this week he posed in a photo with rebels who kidnapped 11 Lebanese Shi’ite pilgrims.
The photo, released by McCain’s office, shows McCain with a group of rebels. Among them are two men identified in the Lebanese press as Mohamed Nour and Abu Ibrahim, two of the kidnappers of the group from Lebanon.
McCain’s office insists the senator was not aware that he’d met with Nour and Ibrahim — if they are, in fact, the men in the photograph — and they had not been identified as such during his trip. The spokesperson added that if McCain had unknowingly met with kidnappers, “that is regrettable.”
It is, indeed.
McCain’s office went on to tell BuzzFeed that it “would be ludicrous to suggest that the Senator in any way condones the kidnapping of Lebanese Shia pilgrims or has any communication with those responsible. Senator McCain condemns such heinous actions in the strongest possible terms.”
And to be clear, I don’t think anyone has suggested McCain is somehow sympathetic towards kidnappers. Rather, the point is the senator is eager to provide extensive resources to Syrian rebels, but he may not fully appreciate who his new allies are.
McCain added some additional thoughts on the subject last night.
When [Anderson Cooper] asked McCain how weapons would be prevented from falling into the hands of extremists, the senator said extremist fighters compose a small fraction of Syria’s rebel forces: 7,000 pro-al Qaeda fighters from the al-Nusra front among some 100,000 insurgents.
“Every single day, more and more extremists flow in … but they still do not make up a sizable portion,” McCain told Cooper. “We can identify who these people are. We can help the right people.”
Maybe, maybe not. But whether McCain can say with certainty who the “right people” are is very much in doubt.
By: Steve Benen, The Maddow Blog, May 30, 2013
“If War Is Hell, What Is Perpetual War?”: The Question That Lindsey Graham Should Be Asked Every Day
I’ve been staring at Sen. Lindsey’s Graham’s comments yesterday from Fox News Sunday, when he criticized the president’s big counter-terrorism speech, and wondering what it would take to satisfy him that it’s time to declare the Global War On Terrorism over?
At a time we need resolved the most, we are sounding retreat. Our enemies are emboldened all over the planet. Al Qaeda in Iraq is coming back with vengeance, in Libya together. Our friends are uncertain. Syria is falling apart. We are talking about helping the rebels but doing nothing about it. Iran is marching toward a nuclear weapon….
At the end of the day, this is the most tone deaf president I’ve ever — could imagine and making such a speech at a time when our homeland is trying to be — attacked literally every day.
So are the only alternatives for the United States a world free of threats or perpetual war? That would seem to be Graham’s essential argument. And what a forfeiture of national sovereignty he calls for, if we are prohibited from adjusting our national security strategy and returning to a normal constitutional regime so long as one “emboldened” enemy or “uncertain” friend might notice!
The habit, carried over from the Cold War, of waging undeclared wars fought under hazy international and domestic auspices is dangerous enough. The idea that anything other than a permanent war footing invites disaster is an extension of the Cold War “Peace Through Strength” doctrine that in fact rules out peace.
If, as Sherman rightly said, “War is hell!”–then what kind of existence do advocates of perpetual war propose for us? It’s a question that Lindsey Graham should be asked to ponder every time he objects to even the smallest steps away from fear and hysteria.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, May 27, 2013
“Karl Rove’s Area Of Expertise”: The Guy Responsible For More Than His Share Of Meaningful Scandals
The controversy surrounding Justice Department leak investigations, and surveillance of journalists and phone logs, is clearly a serious matter. But is Karl Rove is the best person to be discussing this?
Appearing Monday on Fox News, Karl Rove attacked the Obama administration’s surveilling of Fox reporter James Rosen in a leak investigation as “chilling” and its rationale for doing so “beyond the pale.”
“We had to confront this question during the Bush administration,” he said. “There were leaks of classified information and in each and every instance, the focus was on the potential leak, not the reporter who received it.”
Rove defended the need to prosecute leaks but said the media shouldn’t be targeted. “This is really chilling,” he said.
If we remove Rove from the equation, I’m sympathetic to concerns about the chilling effect the leak investigations will have on journalists and their sources. It’s a point Rachel will probably explore on tonight’s show in more detail.
But if we keep Rove in the equation, there are some noteworthy angles to keep in mind. First, like Dave Roberts, I’m not sure how we arrived at the point at which Karl Rove can appear on national television to scrutinize White House controversies. The guy was, after all, responsible for more than his share of meaningful scandals.
Second, I’m even less sure how we arrived at the point at which Karl Rove can appear on national television to discuss and scrutinize White House controversies involving leaks of classified information. It was Rove, after all, who was very nearly indicted for his role in the White House outing an undercover CIA official as part of a larger political strategy.
Third, the focus during the Bush/Cheney era was “on the potential leak, not the reporter who received it”? I don’t mean to sound picky, but during Bush/Cheney era, the Justice Department “improperly gained access to reporters’ calling records as part of leak investigations.” Indeed, it happened quite a bit. One reporter went to jail to protect a White House source during a leak investigation, and another reporter very nearly met the same fate.
Does Rove not remember any of this?
By: Steve Benen, The Maddow Blog, May 20, 2013
“A Classic Dick Cheney Modifier”: Ready For The Anniversary, But Never The Actual Day
Dick Cheney won’t let a little thing like the absence of credibility stand in the way of cheap shots, as he hopes to exploit the deaths of Americans abroad for partisan gain.
Former Vice President Dick Cheney criticized the Obama administration on Tuesday for its handling of the September 11, 2012 terror attack on the U.S. Consulate in Benghazi, Libya, calling it ‘a failure of leadership.’ Cheney said U.S. leaders should have been better prepared for violence on the anniversary of the al-Qaeda attacks on the World Trade Center and the Pentagon in 2001.
‘They should have been ready before anything ever happened,’ Cheney told MailOnline exclusively during a party in Georgetown celebrating the launch of a new book by former Secretary of Defense Donald Rumsfeld. ‘I mean, it’s North Africa – Libya, where they’ve already had major problems,’ Cheney said.
Actually, “North Africa” is a pretty big place, as Cheney may recall. To say the Obama administration, the U.S. military, and all U.S. diplomatic outposts in the region “should have been ready” is easy for a failed former official to say from his Beltway home, but in practice, it’s a little more complex. Indeed, we’re talking about Benghazi, Libya, where support for the U.S. is strong and we were arguably less likely to face a violent attack.
But this was the part of Cheney’s harangue that struck me as especially noteworthy.
‘When we were there, on our watch, we were always ready on 9/11, on the anniversary,’ he recalled.
Yes, “on the anniversary” is an instant Cheney classic, because on their watch, they certainly weren’t ready “on 9/11” itself.
George W. Bush received an intelligence briefing on Aug. 6, 2001, at which he was handed a memo with an important headline: “Bin Laden Determined to Strike in U.S.” Bush, however, was on a month-long vacation at the time. He heard the briefer out and replied, “All right. You’ve covered your ass, now.” A month later, al Qaeda killed 3,000 people.
“On the anniversary,” however, Cheney wants us to know they were ready, presumably everywhere, for everything.
Honestly, isn’t it about time this guy enjoyed a little quiet time?
By: Steve Benen, The Maddow Blog, May 8, 2013
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