Rosen was not charged with any crime, but it is unprecedented for the government, in an official court document, to accuse a reporter of breaking the law for conducting the routine business of reporting on government secrets. —Ryan Lizza, The New Yorker
Calling it a threat to "routine daily activities" in reporting, journalists across the spectrum have stepped up to protest new reports that the government traced phone calls, monitored security badge access records and obtained a search warrant for Fox News reporter James Rosen's Gmail account.
"(The) case against Fox's Rosen, in which (the Obama administration) is criminalizing reporting, makes all of the other 'scandals' look like giant nothing burgers," The New Yorker's Ryan Lizza tweeted Monday morning. "The Obama admin has accused Fox News of breaking the law in the course of doing routine reporting."
In a story by The Washington Post published Sunday, Ann Marimow reported on the case of Stephen Jin-Woo Kim, a government adviser who came under fire when the Justice Department began investigating possible leaks of classified information.
As part of the investigation, the government subpoenaed Rosen's private emails, with the court documents saying, "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."
Section 793(d) says that anyone lawfully possessing information relating to the national defense, "which information the possessor has reason to believe could be used to the injury of the United States," and communicates that information, the person should be fined or imprisoned.
According to court documents, a June 2009 article written by Rosen included information that was classified as top secret/special compartmented information and Kim was the source of that information.
Politico's Josh Gerstein said the decision to go after Rosen for having potentially committed a crime by reporting top secret information allowed the government to access his emails through a search warrant rather than a subpoena.
"The government exhausted all reasonable non-media alternatives for collecting this evidence before seeking court approval for a search warrant," a spokesman for the U.S. Attorney's Office for the District of Columbia told The Huffington Post Monday. "Based on the investigation and all of the facts known to date, no other individuals, including the reporter have been charged since Mr. Kim was indicted nearly three years ago."
As the news was coming out Monday, Politico reporter Byron Tau echoed that point, tweeting, "For all the administration's crackdown on leakers, I don't believe it has actually jailed a working journalist."
"High bar!" Lizza tweeted back.
"Rosen was not charged with any crime," he later wrote for the The New Yorker, "but it is unprecedented for the government, in an official court document, to accuse a reporter of breaking the law for conducting the routine business of reporting on government secrets."
While Rosen remains unindicted, the consequences of the argument used to obtain access to his emails — that he acted as an "aider and abettor and/or co-conspirator" to Kim — are breathtaking, Trevor Trimm wrote Monday at pressfreedomfoundation.org.
"Under U.S. law, it is not illegal to publish classified information," Glenn Greenwald wrote at The Guardian. "That fact, along with the First Amendment's guarantee of press freedoms, is what has prevented the U.S. government from ever prosecuting journalists for reporting on what the U.S. government does in secret. This newfound theory of the Obama DOJ — that a journalist can be guilty of crimes for 'soliciting' the disclosure of classified information — is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself.
"Accusing James Rosen of committing crimes — for basic reporting — may be the most dangerous thing the Obama DOJ has done yet," he also tweeted.
Howard Fineman, the editorial director of The Huffington Post Media Group, also sounded the alarm on Twitter, saying the Rosen probe is "as bad/worse than AP.
"In unprecedented move, gov't says he 'conspired' with leakers to get info," Fineman said. "That's what reporters do!"
"We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter. In fact, it is downright chilling," Fox News Executive VP of News Michael Clemente said in a statement to TVNewser. "We will unequivocally defend his right to operate as a member of what up until now has always been a free press."
Fox News' Megyn Kelly and Shannon Bream reported Monday afternoon that Fox News correspondent William La Jeunesse and DOJ and National Security Senior Producer Mike Levine were also targeted.