First They Came for James Risen …

I don’t mean to suggest the journalism world did not object to the three subpoenas James Risen got in the Jeffrey Sterling case. They did.

But today’s news that Fox’s James Rosen was accused of being an “Aider or Abettor” to Stephen Jin-Woo Kim’s alleged crime of leaking information on Korea is just part of a progression. (See also WaPo’s story which broke this.)

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that 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,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.


As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.

“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”

“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”

After all, in January 2011 (which was actually after this affidavit, but appeared 10 months before this affidavit was unsealed), DOJ argued that when Jeffrey Sterling leaked information to James Risen about a dangerous plot to deal nuke blueprints to Iran, his actions were worse than what DOJ called “typical espionage.”

The defendant’s unauthorized disclosures, however, may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money. Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.

Then, in March 2011, DOD charged Bradley Manning with aiding the enemy because he leaked a bunch of stuff to us.

In other words, during a period from May 2010 through January 2011, Eric Holder’s DOJ was developing this theory under which journalists were criminals, though it’s just now that we’re all noticing this May 2010 affidavit that lays the groundwork for that theory.

Maybe that development was predictable, given that during precisely that time period, the lawyer who fucked up the Ted Stevens prosecution, William Welch, was in charge of prosecuting leaks (though it’s not clear he had a role in Kim’s prosecution before he left in 2011).

But it’s worth noting the strategy — and the purpose it serves — because it is almost certainly still in effect. FBI Special Agent Reginald Reyes accused Rosen of being a criminal so he could get around the Privacy Protection Act protections for media work product (See pages 4 and following), which specifically exempts “fruits of a crime” or “property … used [] as a means of committing a criminal offense.” Then he further used it to argue against giving notice to Fox or Rosen.

Because of the Reporter’s own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by the warrant. (29)

While the AP’s phone records weren’t taken via a warrant, it would be unsurprising if the government is still using this formula — journalists = criminals and therefore cannot have notice — to collect evidence. Indeed, that may be one reason why we haven’t seen the subpoena to the AP.

Of course, this is not just about journalists. In this schema, providing information about what our government is doing in our name to citizens constitutes a crime.

This criminalization of journalism is a fundamentally anti-democratic stance.


Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

28 replies
  1. What Constitution says:

    I’m really glad you added that last sentence to your post. Not because it isn’t obvious to anybody with an ounce of integrity, but because it apparently hasn’t occurred to the Obama DOJ.

  2. thatvisionthing says:

    “worse than espionage” — I recognize that!

    DOJ argued that when Jeffrey Sterling leaked information to James Risen about a dangerous plot to deal nuke blueprints to Iran, his actions were worse than what DOJ called “typical espionage.”

    The defendant’s unauthorized disclosures, however, may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money. Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.

    It’s a new crime, just made up, and it’s called “wantonly publishing” and Bradley Manning is charged with it — I read about it in the Alexa O’Brien’s report of the Bradley Manning trial:

    ALEXA O’BRIEN: [Bradley Manning] pled not guilty to one of the more provocative and disturbing charges against him. It’s never been used before. In fact it’s not tied to any existing federal criminal violation or punitive article under the Uniform Code of Military Justice. It’s what’s called “wantonly publishing.”

    HARRY SHEARER: (laughs)

    ALEXA O’BRIEN: (laughs)

    HARRY SHEARER: I think we both of us do that every day.

    ALEXA O’BRIEN: Yeah. That’s why it’s so terrifying.


    ALEXA O’BRIEN: But the crazy thing about this charge is that the knowledge element parallels the knowledge element in the aiding the enemy charge, so it essentially dovetails into aiding the enemy.

    HARRY SHEARER: Now, “wantonly publishing” is actually legislative language in some law?

    ALEXA O’BRIEN: Well, in oral arguments early on in the pretrial, the government argued that it was, you know, in terms of punishment that it was analogous to espionage but that it was far, far worse than espionage. And the defense came back and said, “This is a made-up offense. This shouldn’t be allowed.” So, you know, one of the reasons why I’ve been covering it as, I guess, intently is because there are such important things going on here and, you know, I want to empower other people, subject matter experts in military law for example, to be able to actually make commentary on this in a way that’s useful and valuable to the public.

    HARRY SHEARER: So you’ve been wantonly covering it.

    ALEXA O’BRIEN: I’ve been wantonly covering it and publishing transcripts.

    I asked James C. Goodale about it in his Book Salon on FDL yesterday — can’t pull up his answer because I can’t pull up FDL today. Uh oh.

  3. lefty665 says:

    Thanks EW, I would up that to the last two sentences. It has not been change for the better since 1/20/09.

    How long before this blog quotes/links to/talks about something that is deemed to criminalize you and we become accessories for contributing or reading?

  4. thatvisionthing says:

    Also, this part:

    this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society

    There is so much wrong with that. But some things randomly leap out:

    – Brennan calling Richard Clarke and all the other ex-czars before they were going to go on TV news and telling them about “insider control” — hello.

    – Bob Woodward. Cottage industry of publishing leaked info. Harry and Alexa made point that Osama bin Laden recommended people read Bob Woodward’s book. Hello.

    – Harry and Alexa also made point that it’s not known if Osama bin Laden had the reports themselves or just the New York Times reports of the reports on his computer.

    – Collateral Murder. Alexa said it was unclassified. David Finkel wrote about the incident for his 2009 book The Good Soldiers and obviously was quoting from video, though he won’t say he had it and only says his sources were all unclassified. So if it’s unclassified it wasn’t a leak, right? Except no, Bradley Manning is being prosecuted for leaking it, and Kevin Gosztola reports prosecutors say it’s because Manning thought it was classified. I’d link but I can’t get to FDL. Also, in the Goodale book salon, several questions were asked about why Reuters then could not get the video via FOIA. Good question?

  5. Ben Franklin says:

    The MEdia are slowly arising from a deep sleep on this. We can only hope that some cajones will arise, as well.

  6. lysias says:

    Wasn’t it James Rosen that they came for first? The charging document for Mr. Kim indicates that he was questioned (and allegedly lied to the investigators) in September 2009. I assume that would also be when they subpoenaed Rosen’s e-mails. Very early in the Obama administration, in other words.

    Remember the following passage from Jonathan Alter’s The Promise comes from a book about Obama’s first year in office:

    Obama had one pet peeve that could make him lose his cool. It was a common source of anger for presidents: leaks. Complaints about loose lips became a constant theme of Obama’s early presidency. At his first Cabinet meeting he made a point of saying that he didn’t want to see his Cabinet “litigating” policy through the New York Times and the Washington Post. At a Blair House retreat for the Cabinet and senior staff at the end of July he devoted about a quarter of his comments to urging his people to keeping their disagreements within the family: “We should be having these debates on the inside, not the outside.” And during his twenty hours of deliberations over Afghanistan in the fall, he returned repeatedly to the theme. Naturally in Washington nearly every time he got upset about leaks it leaked.

    For all his claims that he didn’t want yes-men around him, no one on his staff was brave enough to tell the president that obsessing over leaks was a colossal waste of time. (Aides should have recognized that the age-old problem in Washington isn’t managing leaks, but managing the president’s fury over them.) But it wouldn’t have mattered: leaks offended Obama’s sense of discipline and reminded him of everything he disliked about the capital. He was fearsome on the subject, which seemed to bring out his controlling nature to an even greater degree than usual

    (Emphasis added.)

  7. lysias says:

    @What Constitution: Who says it hasn’t occurred to the Obama/Holder DOJ? You’re talking about some pretty smart people.

    More likely, it has occurred to them, and either they don’t care or they positively want to undermine democracy.

  8. lefty665 says:

    @thatvisionthing: All seems to be cut from the same cloth doesn’t it? It is a short ride from asserting the UCMJ can make 1st amendment protected speech a capital offense for civilians to NDAA disappearings. Criminalizing journalism and secret subpoenas seem to to be among the vehicles of choice for the trip.

    Long ago a common belief in the intelligence community was that the Espionage Act was ultimately unconstitutional. It was an ugly club sitting in the corner to threaten someone with, but that it would be a big mistake to actually use it. They figured they’d lose it if it was contested. That was several DOJs and a couple of supreme courts ago in what increasingly seems to be a country far far away.

    Evil as Duhbya’s minions were they apparently understood the problems with the Espionage Act. I don’t recall hearing chatter about the potential for UCMJ trials for journalists either.

    So much for electing a Constitutional scholar. Change as perversion. Guess it’ll have to wait for DSM6.

  9. harpie says:


    Here’s Goodale’s answer to your question:

    I don’t see how one can wantonly publish. What concerns me about Obama’s approach to leaking and the risks inherent in the Manning trial, is that the distinction between publishing and espionage has been lost.

  10. emptywheel says:

    @lysias: Risen was also subpoenaed under Bush. My theory is that they used the change in Admin to clean team the illegal wiretaps they had in hand and then started again.

  11. What Constitution says:

    @lysias: Just trying to use shame as a tool, that’s all. These people are all smart. It’s the smart ones who recognize that what they’re trying to achieve is forbidden by fundamental principles… so they need to make up new reasons and seek to clothe them with invocations of a need for secrecy. Assert the most ludicrous propositions, but do so with sincerity and hushed tones.

  12. thatvisionthing says:

    @harpie: Isn’t that funny? I still can’t get through to FDL today, though I guess everyone else can.

    Now that I think about it, last I saw of FDL… my modem fritzed last night when I searched “Trentadue Holder” on FDL — was going to pick up one of my many past quotings of Jesse Trentadue’s letter to Patrick Leahy prior to Holder’s confirmation hearing, something about “No one could be less qualified than Eric Holder and I would like opportunity to testify to that fact” — he was talking about Eric Holder’s “Trentadue Mission” to quell Congressional oversight into Oklahoma City bombing (remember John Doe 2? DOJ doesn’t want you to, maybe he was DOJ plant, and missing video reportedly showed he not McVeigh set off bomb) — and post that comment again in ew’s post on UndieBomber 2.0, wherein DOJ doesn’t want you to hear what Kurt Haskell has to say about his experience as fellow passenger on Undiebomber 1.0’s flight where UB1 was helped onboard without a passport and bomb was not exactly as advertised. Is that a security theater pattern forming? Maybe, no? (Am I an airhead? Yes!)

    Just checked again, still can’t get through to FDL.

  13. thatvisionthing says:

    @lefty665: @harpie: It’s what Marcy said in interview — the crime is messing with the spin.

    Wheeler: What this administration wants to be able to do is have absolute control over when and how stories come out. They’re happy to leak classified information. That’s what the White House is going to do in this case. They just want to have complete control over the spin on that story. They don’t want to be preempted by actual real reporting. And that’s what this is about. This is a campaign against actual real reporting as opposed to White House managed spin on classified stories which they don’t have any problem with.

    How poignant! Julian Assange:

    “Little did we realize that our greatest struggle would come in 2010, as we tried to bring the 1st Amendment to the United States.” – Julian Assange, 5/25/11

  14. Bitter Angry Drunk says:

    WaPo broke this, huh? Hope that pissant obamapologist Erza Klein saw the story, since just last week he was dismissing the AP scandal:

    “There’s no evidence that the DoJ did anything illegal. Most people, in fact, think it was well within its rights to seize the phone records of Associated Press reporters. And if the Obama administration has been overzealous in prosecuting leakers, well, the GOP has been arguing that the White House hasn’t taken national security leaks seriously enough. The AP/DoJ fight has caused that position to flip, and now members of Congress are concerned that the DoJ is going after leaks too aggressively. But it’s hard for a political party to prosecute wrongdoing when they disagree with the potential remedies.

    “Insofar as there’s a ‘scandal’ here, it’s more about what is legal than what isn’t. The DoJ simply has extraordinary power, under existing law, to spy on ordinary citizens — members of the media included. The White House is trying to change existing law by encouraging Sen. Chuck Schumer to reintroduce the Media Shield Act. The Post’s Rachel Weiner has a good rundown of what the bill would do. It’s likely that the measure’s national security exemption would make it relatively toothless in this particular case, but if Congress is worried, they always can — and probably should — take that language out. Still, that legislation has been killed by Republicans before, and it’s likely to be killed by them again.”

  15. harpie says:

    @thatvisionthing: Wow. That’s a really good link to have. Somehow I missed that this interview happened. And, as a sometimes transcriber myself, I really appreciate not only the interview [of course], but the transcription. Thanks.

  16. lefty665 says:

    @thatvisionthing: From Chris Hedges:

    The government’s fierce persecution of the press—an attack pressed by many of the governmental agencies that are arrayed against WikiLeaks, Bradley Manning, Julian Assange and activists such as Jeremy Hammond—dovetails with the government’s use of the 2001 Authorization for Use of Military Force to carry out the assassination of U.S. citizens; of the FISA Amendments Act, which retroactively makes legal what under our Constitution was once illegal—the warrantless wiretapping and monitoring of tens of millions of U.S. citizens; and of Section 1021 of the National Defense Authorization Act, which permits the government to have the military seize U.S. citizens, strip them of due process and hold them in indefinite detention. These measures, taken together, mean there are almost no civil liberties left…

    We are sailing on a maniacal voyage of self-destruction, and no one in a position of authority, even if he or she sees what lies ahead, is willing or able to stop it. Those on the Pequod who had a conscience, including Starbuck, did not have the courage to defy Ahab. The ship and its crew were doomed by habit, cowardice and hubris. Melville’s warning must become ours. Rise up or die.

  17. thatvisionthing says:

    @harpie: I love transcripts. I love quoting. I think I’m nothing but string between quotes sometimes. Grandma made quilts, I think I know how that feels.

  18. What Constitution says:

    Isn’t the DOJ’s interpretive spin simply trending toward creation of a Ministry of Truth to make sure it all comes out as desired?

  19. P J Evans says:

    @What Constitution:
    Or a US version of Pravda: ‘all the news we can print’.

    I wish someone could get it through Mr O’s head that he’s worrying about all the wrong things.

  20. shoirca says:

    “FBI Special Agent Reginald Reyes accused Rosen of being a criminal so he could get around the Privacy Protection Act protections for media work product … which specifically exempts “fruits of a crime” or “property … used [] as a means of committing a criminal offense.””

    This strategy of criminalizing reporters is the same strategy being used against Barret Brown:

    “In December, the DOJ filed a second indictment, which is now the heart of the government’s case against him. It alleged that he “trafficked” in stolen goods, namely the Stratfor documents leaked by Anonymous and published by WikiLeaks. The indictment focuses on one small part of the leak: a list of Straftor clients and their credit card numbers. Critically, the indictment does not allege that Brown participated in the hack or in obtaining any of those documents.Instead, it simply alleges that he helped “disseminate” the stolen information. He did that, claims the DOJ, when he was in a chat room and posted a link to those documents that were online”

  21. Jeff A. Taylor says:

    I would like to suggest — knowing what we know about how the national security state operates — that there exists the possibility that some journalists have been flipped to government informants via these tactics.

  22. lefty665 says:

    “This criminalization of journalism is a fundamentally anti-democratic stance.”

    What can be done?

  23. thatvisionthing says:

    @harpie: It’s capitalized! They’re Serious!

    Alexa O’Brien [email protected]

    SSA [Supervisory Special Agent] Alexander Pott [sp.], FBI The Specification, charge 1 (Aid Enemy) and Wanton Publication Spec 1, Charge II

    turning lonely eyes to Stanley Kubrick and Monty Python

  24. Procopius says:

    @Ben Franklin: “We can only hope that some cajones will arise, as well.”

    What, your dresser doesn’t have enough drawers in it?

    I never studied Spanish, but I lived in California for a while, and I’m pretty sure that if you’re talking about machismo you mean cojones.

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