Why the Justice Department spied on a Fox News reporter

Reporters widely denounce the latest White House leak investigation as "unprecedented"

James Rosen
(Image credit: Screen shot, The O'Reilly Factor)

The Department of Justice went to extreme lengths in 2010 to ferret out who leaked classified information about North Korea to a Fox News reporter, pulling the reporter's emails and phone records, and tracking his movements in and out of the State Department, according to The Washington Post.

The report comes one week after The Associated Press revealed that the Justice Department had secretly obtained its reporters' phone records as part of a separate leak investigation.

But the latest case reportedly went much further than that. While the DOJ only obtained phone numbers for incoming and outgoing calls made by AP reporters, in the North Korea case the department obtained a search warrant to dig through the content of Fox News correspondent James Rosen's emails — and even suggested he may have violated federal law by reporting his findings.

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In June 2009, Rosen reported on a U.S. intelligence assessment of North Korea's nuclear program. Outraged at what it felt was a breach of national security — and potentially an act of espionage — the Obama administration went to work to find the source of the leak.

Citing court records that detail the government's investigation, the Post reports that FBI investigators pulled Rosen's phone and email records, and, using his government-issued security badge, pinpointed when he entered and left the State Department. Using that information, they linked him to Stephen Jin-Woo Kim, a State Department security contractor.

The FBI announced in 2010 that a grand jury had indicted Woo for "unlawfully disclosing national defense information" to the press. Woo is now being charged with violating the Espionage Act.

Though investigators had already targeted Kim as the likely source of the leak, they wanted Rosen's personal emails to help build their case. However, investigators had to first convince a judge to sign off on a warrant authorizing such a search, arguing that Rosen had potentially broken the law, too, "either as an aider, abettor, and/or co-conspirator."

"Because of the Reporter's own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from [Rosen] would be futile and would post a substantial threat to the integrity of the investigation and of the evidence that we seek to obtain by the warrant," FBI agent Reginald Reyes wrote in a warrant application.

In an affidavit, Reyes said Rosen "encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence," and that he did so by "employing flattery and playing to Mr. Kim's vanity and ego."

More from the Post on that affidavit:

Rosen instructed Kim to send him coded signals on his Google account, according to a quote from his e-mail in the affidavit: "One asterisk means to contact them, or that previously suggested plans for communication are to proceed as agreed; two asterisks means the opposite."

He also wrote, according to the affidavit: "What I am interested in, as you might expect, is breaking news ahead of my competitors" including "what intelligence is picking up." And: "I'd love to see some internal State Department analyses." [Washington Post]

Journalists denounced the investigation as "unprecedented," noting that Rosen had not been charged with a crime and was merely doing his job as a reporter.

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Michael Clemente, Fox's executive vice president of news, blasted the news as "downright chilling" and said, "We will unequivocally defend his right to operate as a member of what up until now has always been a free press."

The White House has aggressively pursued leaks throughout Obama's presidency. According to Yahoo News' Olivier Knox, the administration has prosecuted twice as many leak cases as every other administration combined. In the process, the DOJ has repeatedly pulled reporters' records to aid its investigations — doing so frequently enough that Attorney General Eric Holder said last week he was "not sure" how many times he'd greenlighted such requests.

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Jon Terbush

Jon Terbush is an associate editor at TheWeek.com covering politics, sports, and other things he finds interesting. He has previously written for Talking Points Memo, Raw Story, and Business Insider.