Arlington, VA June 23,2013
Part 4 - 'Secret' investigations of reporters, without providing protection for First Amendment rights
This is another one of those ‘Did Holder lie under oath?” questions, which seem to continue to haunt the Obama Administration. It is not the first time a reporter has been investigated in connection with a leak of supposedly secret Government information, nor will it probably be the least. There are some differences here, however, that make this situation a bit different from some of the others, which have occurred periodically under various presidents.
Let me say at the outset that it is not necessarily illegal for the Justice Department, or any other law enforcement agency, to investigate criminal activity, even if it involves in some way, a member of the media. Broadly, reporters are protected under the Freedom of Speech provisions of the First Amendment to the US Constitution. They have the same obligations as any other citizen for assuring that their writing is indeed ‘protected’ speech; something the courts have defined over the years, and generally guided by the Supreme Court, where the famous example of ‘yelling ‘fire’ in a theatre’, became part of the norm for determining the limits of that free speech.
So, we have two separate, but inter-related issues here, as is often the case. One issue involves performing criminal acts; the other involves the right of a reporter to bring facts, however unfavorable to the Administration, to the public view. In this particular incident, there is also a third issue; the responsibility of the Nation’s chief law enforcement officer, the Attorney-General, to speak truthfully in explaining the issues before either house of the Congress. This third issue is where the current problem occurs.
Let’s dispose of the first issue, the performance of criminal acts, quickly. My research tells me that reporters, who are informed of a story, and who have reason to believe, after due diligence, that the story is true, have a right to inform the public. If that story has within it protected or classified information, then the obligation of the reporter, normally, is to attempt to present the story without any unnecessary disclosure of the classified information. However, if that story involves illegal activity, even including classified information bearing on that illegal activity, the reporter has no obligation to protect the information from disclosure. The reporter’s disclosure does not, in any way, absolve the person who took the classified information, and disclosed it to the reporter, from their obligations under any agreement with the Government. In short, the reporter may not violate the law, but the initial discloser probably does violate the law.
Over the years, we have seen in various high-profile cases that neither reporter’s rights, nor the Government’s rights to keep secrets, is absolute. In recent years, transcending several administrations, reporters have been called to court to explain where they received information about crimes committed, or Government secrets. The court decisions, some holding reporters in contempt, and jailing them, until they revealed their sources; others vacating the contempt, usually because the originator of the information agreed to let their name be known to the court, have not seriously undermined reporter’s rights.
Similarly, the publication of the “Pentagon Papers’ in both the New York Times, and the Washington Post created a whole new set of precedents with regard to releasing previously classified documents. In that case, the Government attempted to get the courts to issue restraining orders to the newspapers, in advance, denying them the right to publish the papers, made available by Daniel Ellsburg, an analyst with the Rand Corporation. The court denied the prior restraint of publication, and suggested the Government instead prove its case in court. The Government tried Ellsburg, but could not get a jury to convict on the most serious charges. For the number of years, prior to 2001, the Government backed away from public confrontation on these issues, preferring quiet negotiation, or denials as their method of operation.
All that changed with September 11, 2001 bombings in New York, and Washington DC. More activist administration, under George W. Bush and Barack Obama began to actively seek to restrain disclosures, actively pursue leakers from Government agencies, and encourage reporters not to accept or public classified documents. That process expanded in earnest under the Obama Administration, and the US Justice Department under Eric Holder, bringing us to pre present case, where not only is the administration pursuing leakers, they are also actively pursuing the reporters who publish the stories.
In the current case, Jin-Woo Kim, an analyst at the State Department, was accused of releasing secret information to a reporter, James Rosen of Fox News, and was being investigated for prosecution under the Espionage Act of 1917. E-mails between Kim and Rosen linked Rosen to the case. However, in their request for a warrant to look through Rosen’s e-mails, the FBI agent in question, In the affidavit, FBI agent on the case, Reginald Reyes, said Rosen “asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information.” He added, “The reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.” Further, Rosen was called a potential co-conspirator in the case; words which are apparently required for the court to issue the warrant. That request for a warrant was approved up to the level of the Attorney-general, Eric Holder.
Unfortunately, Holder had been testifying before the House Judiciary Oversight Committee, and was asked specifically if he had approved such requests, and denied even knowing about such a case. The Washington Post, New Yorker magazine, and a host of other media sources jumped on the case as one of interference in the rights of a reporter to state the news, and also catching Holder in an apparent discrepancy in his testimony.
Members of the house Committee demanded clarification from Holder; one of his deputies provided a letter, some thought condescending in tone, and denied the Attorney-general had lied. This was followed up by a letter from Holder who ‘clarified’ his position by saying that his words were literally true, since the Department had no intention to actively prosecute Rosen, but wanted his e-mail traffic to prosecute Kim.
Two important questions remained to be answered: Why would the Department of Justice go to extraordinary lengths to hide the facts, and did Holder lie?
The Department’s position was that they did not notify Rosen, or Fox News, as was the normal custom because they were afraid that Kim would be alerted to the investigation; something Kim was apparently already aware was in progress. When asked about their position on secrecy, and the impact on Rosen for being accused of being a potential co-conspirator in the court documents, the response was “Saying that there is probable cause to believe that someone has committed a crime and charging the person with that crime are two different things.” In other words, Justice could claim anything they wanted to the Court, even lie about the circumstances, and not be in violation of the law, or Rosen’s rights.
Critical to the Committee was the previous testimony of Holder before the committee, and what to do about the apparent discrepancy. Holder appeared, and used many of the same phrases, calling the ‘co-conspirator’ wording something similar to a phrase-of-art needed to get the warrant. That application was rejected by two Federal judges, before it was ‘shopped’ to Judge Jackson, who agreed to its issuance. Rosen’s e-mails, phone logs, and logs of other phones at Fox News Network were turned over in response to the warrant, without notification to Rosen or the news service.
This incident, as with the others, thus far, does not appear to rise to the White House, and certainly not directly to the level of the president. The potential for Holder being accused of lying to the House is a serious issue. If that charge is proved, then the House needs to consider whether the impeachment article should apply to Mr. Holder in this instance.