From what I've read, Fox New reporter, James Rosen didn't learn about the FBI's investigation into his solicitation of classified documents until this weekend, when the Washington Post did their story. And the WaPo only found out about Rosen's investigation because they were looking into the investigation and prosecution of the person who leaked the documents - they didn't know Rosen had ever been investigated as part of the matter; and neither did Rosen. Rosen wasn't charged. He was never told of the investigation.
That means at least three years passed between the investigation and the discovery of the investigation. And, if the WaPo didn't basically stumble upon the info, the investigation may have never been discovered.
But the media (who love stories about themselves), and the GOP (who jump at any chance to make Obama look bad), and the permanently-paranoid, are all sure this is intimidation. But how was the DOJ "intimidating" anyone ?
Surely, to intimidate someone, the person has to know he's being intimidated. Knowing that someone out there is watching you and can act against you is what intimidation means. But if you don't know they're looking at you (as Rosen didn't), and they make no effort to tell you (which the DOJ didn't), and make no effort to retaliate (which the DOJ didn't), they're not intimidating you. They're investigating you, spying on you maybe, but definitely not intimidating.
But one can be intimidated after the fact, sure. Reporters can worry that future attempts to procure classified info might get them investigated. But why wouldn't they already assume this? In instances like these, reporters have traditionally been allowed immunity from prosecution (as Rosen was), but that's not the same thing as immunity from investigation.
Surely you, as a reporter, would expect that the govt would run down every connection to the leaker in such a case - especially when your methods were so sloppy. You would likely be more surprised to find out that you weren't investigated, since that would mean the govt was letting an obvious connection to the leaker go unexplored - and that might be an even better story to investigate.
The options are: assume the government is laughably incompetent when it comes to tracking down and investigating leakers and will not look at you when they find emails from you asking the leaker to get more and more of the information the leaker is charged with leaking; or you can assume the government is going to look at everyone who has made significant contact with a leaker, especially the person soliciting and receiving the information that the leaker is charged with leaking. The first option seems unlikely. If you're encouraging someone to break the law, you should expect the govt to wonder why.
OK, I get that the media is in frenzy mode right now, but this one still seems way overblown. Rosen attached himself to someone who broke the law (at Rosen's urging, no less); and the govt did what it should do in a case like this; it figured out where the info went, and for what purpose. Which necessitated looking at Rosen. Then it ultimately determined that since Rosen was a journalist, doing journalistic things, and it did what govt has always done in such cases: it declined to bring charges. Rosen suffered no real harm. He got his story. His source got prosecuted. Rosen didn't even know anything had happened.
Or, if that's too much - if looking at a journalist to verify that he's acting as a journalist, and not as a foreign agent (or whatever) is too much - what should the process be? When the govt discovers a leaker of classified info, and the info is received by someone who works at a media outlet, should the government immediately stop all investigation of the receiver? If so, I can tell you what the official job title of all future spies will be.
It’s a tough balance. Obviously the Feds have an interest in preventing classified information from leaking, OTOH there is whole loads of embarrassing sh1t that’s classified and shouldn’t be. Finally, there’s “the public’s right to know.”
DOJ tries to strike this balance by going after reporters only as a last resort, but that appears to only apply to forcing reporters to reveal sources in open court. There seems to be lower bar for tapping phone/email records (although I could be mistaken).
Since I’m of the opinion that the federal government could turn everything it knows over to, well, everyone and not much harm would come to the US (I suppose if the nuclear launch codes were released that could be a problem, but even then I’m not so sure) given its current position in the world, I’m not inclined to cut the Federal Government much slack, especially in this area.
So, I think my rule would be, unless the person who revealed the information to the world is under an obligation not to reveal it – i.e., they entered into whatever agreement those granted access to classified information must enter into (or however it works) – then the feds cannot start the investigation from that person and try and work backwards to the leaker.
Unfortunately that probably doesn’t work as I guess it leaves the question of what to do if, say, Leaker X tells Reporter Y about Classified Information Z and Y doesn’t reveal Z to the world (for whatever reason, e.g., not newsworthy, limited time/space, hoping for additional information, etc.). I guess the rule could be – Feds are not allowed to start an investigation of a person who releases classified information to the general public, absent some sort of obligation of the person not to of the type described above.
Obviously the Feds have an interest in preventing classified information from leaking
and, if a leak has occurred, they at least need to see where it went. because they can’t allow for any kind of journalistic immunity if they haven’t yet determined that it’s a journalist acting as a bona fide journalist. some investigation has to be done to determine that much.
Since I’m of the opinion that the federal government could turn everything it knows over to, well, everyone and not much harm would come to the US
some days, i’d agree with this without hesitation. other days, maybe not.
the feds cannot start the investigation from that person and try and work backwards to the leaker.
so they could only investigate leaks from the inside, out ? that’s a pretty big restriction. go back to those nuclear launch codes. for fun, let’s assumed they got out and got used, and there’s a good reason to suspect a reporter got them and used them, your rule would say we couldn’t ask (or investigate) the reporter where he got them (in order to see what else got out) ?
I guess my assumption was that if all the Feds know is that Reporter Y published Information Z (nuclear launch codes, Obama’s prom pictures, etc.), then they can’t start the investigation with Reporter Y.
If they subsequently come into information that Y did more than just publish information – i.e., used it or sold it to a foreign government/agent – then I guess I’d be more comfortable with them then targeting Y. But that’s a harder line to draw.
And I also worry about the Feds just constantly keeping tabs on the top investigative reporters that seem to have government sources under the guise of investigating a specific leak. I’d assume the current rules don’t allow this but I’m not sure (and certainly not sure that, say, the NSA or CIA feel obligated to follow the current rules).
If they subsequently come into information that Y did more than just publish information
but they can’t look at the reporter to see if he did more than publish ?
They’d have to get the information from elsewhere first, I guess is what I’m saying.
That is, if the feds learn of leak because it’s published in the WaPo (or even the internets) and Reporter Y is listed as the author, they can’t subpoena Reporter Y’s communications based on the published report alone. They can target the investigation internally based on what they’ve read in the paper/internet.
I guess I’m assuming it’s hard to be engaged in true espionage if you’re telling everything about it to the world. Part of stealing secrets is keeping the fact that you stole them secret. I suppose there’s the potential for some sort of press espionage-laundering there, especially for time-sensitive information.
They’d have to get the information from elsewhere first, I guess is what I’m saying.
ok.
I guess I’m assuming it’s hard to be engaged in true espionage if you’re telling everything about it to the world.
‘reporter’ gets two sets of classified docs, publishes one, shops the other. Feds never find out because they can’t look at him ?
They can only look at him if they find out he shopped the second set some other way.
And upon review I think I stated the same rule twice….. for emphasis!
i’m sure i only said the same thing a dozen or so times, in the OP.