The case of Stephen Jin-Woo Kim, the government adviser, and James Rosen, the chief Washington correspondent for Fox News, bears striking similarities to a sweeping leaks investigation disclosed last week in which federal investigators obtained records over two months of more than 20 telephone lines assigned to the Associated Press.
At a time when President Obama’s administration is under renewed scrutiny for an unprecedented number of leak investigations, the Kim case provides a rare glimpse into the inner workings of one such probe.
Court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist — and raise the question of how often journalists have been investigated as closely as Rosen was in 2010. The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.
“Search warrants like these have a severe chilling effect on the free flow of important information to the public,” said First Amendment lawyer Charles Tobin, who has represented the Associated Press, but not in the current case. “That’s a very dangerous road to go down.”
Obama last week defended the Justice Department’s handling of the investigation involving the AP, which is focused on who leaked information to the news organization about a foiled plot involving the al-Qaeda affiliate in Yemen. AP executives and First Amendment watchdogs have criticized the Justice Department in part for the broad scope of the phone records it secretly subpoenaed from AP offices in Washington, Hartford, Conn., and New York.
“The latest events show an expansion of this law enforcement technique,” said attorney Abbe Lowell, who is defending Kim on federal charges filed in 2010 that he disclosed national defense information. A trial is possible as soon as 2014. “Individual reporters or small time periods have turned into 20 [telephone] lines and months of records with no obvious attempt to be targeted or narrow.”
The president said press freedoms must be balanced against the protection of U.S. personnel overseas. According to the office of Ronald Machen Jr., the U.S. attorney for the District, its prosecutors followed federal regulations by first seeking the information through other means before subpoenaing media phone records. Machen’s office is investigating both the Kim and AP cases. The Justice Department said in a statement that in both cases it had abided by “all applicable laws, regulations, and longstanding Department of Justice policies intended to safeguard the First Amendment interests of the press in reporting the news and the public in receiving it.”