In the wake of last week's news that the Department of Justice subpoenaed personal and work telephone records from more than 20 Associated Press reporters, new reports have emerged claiming the Obama administration engaged in similarly questionable behavior in 2009 by tracking Fox News chief Washington correspondent James Rosen's emails concerning movements in the State Department following a leak of classified information about North Korea.
Although materially unrelated to the AP and IRS scandals, this latest incident is further evidence of a trend of targeting conservative groups and infringing upon the press's First Amendment rights in sweeping investigations of leaks under a president who once claimed he would lead "the most open and transparent [administration] in history."
The Washington Post's Ann E. Marimov outlines the scheme used by the DOJ to track down Jin-Woo Kim, the 2009 leaker: "The Justice Department used security badge access records to track the reporter’s comings and goings from the State Department … They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal emails."
The most controversial part of this latest revelation may be the insinuations that the press is somehow acting criminally in these leaks. The DOJ labeled Rosen a "co-conspirator”" because he arranged to receive the leaked material. This same logic was used by the prosecution in the Bradley Manning WikiLeaks case, who said that had he passed information to the New York Times instead of WikiLeaks, he would still be "aiding the enemy."
While it remains an open question as to whether the First Amendment gives a reporter legal protection when soliciting information. But the culture of secrecy and intimidation under the Obama administration, which has made more leak prosecutions than all previous administrations combined and recently acquired two months of AP records without even notifying the organization, has led some to say that Obama is impeding upon the press's right and duty to monitor the government.
The Justice Department received a warrant for Rosen's private emails, and in a statement said that it abided by DOJ policy and all applicable laws. The legality of the search, however, does not mean that this administration did not act inappropriately. As University of Chicago Law Professor Geoffrey Stone said before Congress "Over time, we have come to understand that these episodes [of government excessively impeding free discourse] from our past were grievous errors in judgment in which we allowed fear and anxiety to override our good judgment and our essential commitment to individual liberty and democratic self-governance."
In response to the Rosen and the AP controversies this week, the president is attempting to revive legislation that would create a federal media shield law giving journalists protections in keeping their sources and communications with their sources confidential. This shield law was originally negotiated between the media and White House in 2009, but was sidelined due to the WikiLeaks controversy. It remains very popular in the media, Congress, and White House. Attorney General Eric Holder said of this bill, introduced by Sen. Schumer of New York, that "The focus [of law enforcement] should be on those people who break their oath and put the American people at risk, not reporters who gather this information."
While it does not appear that Rosen was targeted due to his affiliation with Fox News, the combination of scandals from this past week have almost fully eroded the press’s trust in the White House, and the proposed shield law is only the first step in the lost trust of both the media and public.