Aamer Madhani and Kevin Johnson, USA TODAY6:47 p.m. EDT May 21, 2013
WASHINGTON — The Justice Department says it hasn't prosecuted journalists for obtaining or publishing classified information and has no plans to.
But open government and journalism advocates say the aggressive investigations of classified leaks by government officials under the Obama administration's watch are having a chilling effect on news organizations' ability to play a watchdog role.
The renewed criticism of the Obama administration comes after new revelations that federal authorities secretly obtained the e-mails and tracked the movements of Fox News reporter James Rosen as part of an ongoing investigation of former State Department analyst Stephen Kim, who is charged with leaking a classified report on North Korea.
The Justice Department is also under fire for secretly obtaining phone records from 20 phone lines used by Associated Press journalists as part of a separate leak investigation.
The monitoring of the Fox News reporter, which was unsealed in court documents in 2011 but went unnoticed until a Washington Post report published this week, marks a startling expansion on the war on leaks by the administration, according to some free press advocates.
The Justice Department, according to court documents filed in 2011, also obtained records for more than 30 telephone lines related to the Kim case, including some that may have been assigned to Fox News and at least two lines with the area code and prefix 456 assigned to the White House. The full phone lines were redacted in the court records filed in October 2011. In addition to the seizure of the phone records, which was first reported by The New Yorker, the government also disclosed that it had obtained a series of State Department videos and security badge records for various dates from Sept. 15-25, 2009.
Gregg Leslie, legal director for the Reporters Committee for Freedom of the Press, said documents filed in support of a search warrant in a leak prosecution involving Kim mark the first time a reporter has been classified as an unindicted co-conspirator or a participant in an alleged crime for seeking information.
The search warrant affidavit, dated May 28, 2010, and signed by FBI Special Agent Reginald Reyes, seeks contents from a reporter's e-mail account, stating, "There is probable cause to believe that the reporter has committed or is committing a violation … an aider and abettor and/or conspirator to which the materials relate."
"It's incredible," Leslie said. "It's the first time we have seen something like this."
Since President Obama took office, federal authorities have filed six leak-related criminal cases under the Espionage Act, including the charges against Kim, which were filed in 2011. That's more than all other administrations combined.
In a statement Monday night, the Justice Department said the search warrant of a journalist in the Kim case was requested because there "was probable cause to believe that the reporter had committed a crime."
"To our knowledge, the Department of Justice has never prosecuted a reporter," the statement said. "No reporter has ever been charged by the Department of Justice simply for publishing information obtained through an illegal leak of classified information by a government official. At this time, we do not anticipate bringing any additional charges in this matter."
Derigan Silver, a journalism professor at the University of Denver, said the Obama administration made a "bold" move by suggesting in the affidavit that Rosen may have broken the law.
Silver said the Justice Department's methods in its monitoring of Rosen raised echoes of the George W. Bush administration's stance that journalists could be prosecuted under the 1917 Espionage Act, which makes it a crime for an unauthorized person to receive national defense information or transmit it to others.
In 2006, Bush's Attorney General Alberto Gonzales raised the possibility that journalists could be prosecuted for publishing national security information. At the time, the Justice Department was investigating leaks to The New York Times of data from the National Security Agency's surveillance of terrorist-related calls between the USA and abroad.
The Times reporters were never prosecuted, but journalists and open government officials raised the alarm that the move would have a chilling effect on whistle-blowers wanting to speak out on wrongdoing within the government and could dissuade journalists from serving in their watchdog role.
"What they (the Obama administration) are doing is no different than what the Bush administration did, and that was something that everyone got up in arms over," said Silver, who has studied the government's ability to prosecute journalists over possession of classified materials.
White House spokesman Jay Carney has declined to comment specifically on the monitoring of Rosen or the AP probe. But Carney told reporters Tuesday, "If you're asking me whether the president thinks reporters should be prosecuted for doing their jobs, the answer is no."
In his own comments last week, Obama said he was trying to maintain a careful balance between respecting the media's right to do investigative reporting and protecting sensitive government information.
"Leaks related to national security can put people at risk," Obama said. "They can put men and women in uniform that I've sent into the battlefield at risk. They can put some of our intelligence officers, who are in various dangerous situations that are easily compromised, at risk … so I make no apologies, and I don't think the American people would expect me as commander in chief not to be concerned about information that might compromise their missions or might get them killed."
Some news organizations say the revelations of Justice Department monitoring is already having an effect on news gathering.
"Officials that would normally talk to us and people we talk to in the normal course of news gathering are already saying to us that they're a little reluctant to talk to us," AP President Gary Pruitt said in an interview with his news agency. "They fear that they will be monitored by the government."
The Obama administration is also facing criticism from Republicans over the AP and Fox News probes. Monday, in response to the Fox probe, Sen. Marco Rubio, R-Fla., said the Justice Department should not use its authority as an "excuse to harass journalists they deem unfriendly to the president."
"National security leaks are criminal and put American lives on the line, and federal prosecutors should, of course, vigorously investigate," Rubio said. "But we expect that they do so within the bounds of the law and that the investigations focus on the leakers within the government – not on media organizations that have First Amendment protections and serve a vital function in our democracy."