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The main-stream-media justifiably has its dander up about the Justice Department secretly obtaining records for AP phone lines impacting over 100 journalists.

The Justice Department seized the AP records as part of a "leak investigation," which fits nicely with the Obama administration's unprecedented crackdown on so-called "leakers," who are usually whistleblowers, using the heavy-handed Espionage Act. Espionage Act defendant Stephen Kim appears to be another whistleblower, whose disclosures that U.S. intelligence officials had warned that North Korea planned to respond to a new round of U.N. sanctions with another nuclear test, while hardly revolutionary for anyone with expertise on North Korea, were indisputably in the public interest. Putting aside Kim's status as a whistleblower, his case is another "leak" investigation that the government used as the basis for spying on a journalist.

The Washington Post reported today:

When the Justice Department began investigating possible leaks of classified information about North Korea in 2009, investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. 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 e-mails.

Glenn Greenwald extrapolated how far the Justice Department's arguments in the Kim case go:
But what makes this revelation particularly disturbing is that the DOJ, in order to get this search warrant, insisted that not only Kim, but also Rosen - the journalist - committed serious crimes. The DOJ specifically argued that by encouraging his source to disclose classified information - something investigative journalists do every day - Rosen himself broke the law.
(emphasis added.)

Keep in mind that all experts agree that far too much information is deemed "classified." In FY 2011 alone, government agencies reported over 90 million decisions to classify information. That's a lot of information that could potentially criminally implicate journalists. The Justice Department's directly accusing a journalist of breaking the law by encouraging a source to revealed allegedly "classified" information is even more nefarious considering that the biggest "leaker" of all is the U.S. government.

The message to journalists is clear. If the media publishes "classified" information that the government wants made public, those journalists receive increased access and can continue their work unfettered by invasive surveillance. But, if journalists write about government waste, fraud, abuse, mismanagement or illegality, they should be ready for harassment, surveillance, and criminal investigation.

The government's extensive targeted surveillance aimed at Fox News reporter James Rosen in the Kim case has an undeniable chilling effect on reporters' and sources' First Amendment rights, and, worse, the monitoring is not all that unusual for the Justice Department over the past decade.  

In 2006, the government targeted New York Times reporter and author James Risen. Risen is in the midst of fighting the Justice Department's repeated attempts to force him to testify about his source in another Espionage Act prosecution, and described the invasive surveillance in an affidavit:

ABC News reported on May 15, 2006, that senior federal law enforcement officials had informed them that the government was tracking the phone numbers of journalists without the journalists' knowledge as part of an effort to root out the journalists' confidential sources. . . I was mentioned by name as one of the reporters whose work the government was looking into.
At the National Press Club last year, Risen explained that democracy depends upon the Fourth Estate.
Can you have a democracy without aggressive investigative journalism? I don't believe you can, and that's why I'm fighting.
Risen's New York Times colleague Eric Lichtblau actually moved off of the Justice Department beat in part out of fear of a subpoena:
I heard from various news sources that the FBI had been monitoring my phone and Internet communications with certain people as part of its leak investigation into our NSA story. . . When I initially moved off the Justice Department beat in 2009, part of the thinking there was the threat of the subpoena
Countless other journalists have said the Espionage Act prosecutions and increased government surveillance have chilled their reporting. The Freedom of the Press Foundation has a must-read synopsis.

Combine the chilling surveillance of the AP, Rosen, Risen, and Licthblau with what National Security Agency (NSA) whistleblowers like Bill Binney have had to say about NSA's domestic spying operations, and what the public knows about the government's targeting of journalists could be the tip of the iceberg.

Originally posted to Jesselyn Radack on Mon May 20, 2013 at 07:33 AM PDT.

Also republished by Whistleblowers Round Table.

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