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Opinion Fox News and James Rosen: How much notice did they give the government?

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Judging from federal court documents, June 11, 2009, was a busy day for Fox News reporter James Rosen. Phone records suggest that he was hounding Stephen Jin-Woo Kim, a State Department security adviser. The two appeared to have had a face-to-face meeting around noon, according to the documents. And a few hours later, Rosen published on a story on North Korea, featuring confidential information to which Kim had access.

Rosen’s activities that day have come to light in a federal investigation focused on the alleged leak by Kim of top-secret information. News of the probe came right after revelations about the Justice Department’s secret subpoena of phone records for the Associated Press, raising questions about the appropriateness of the federal government’s snooping on the media, as well as the fitness of Attorney General Eric Holder to continue in his post.

The timeline detailed in the court documents, though, raises another question: Did Fox News apprise the government of its findings on a sensitive national-security matter before putting them on the Internet?

June 2009 was a heady time for news related to North Korea. Two journalists for Current TV were on trial for crossing into North Korean territory without a visa. North Korea had conducted a nuclear test in May, and the U.N. Security Council passed a resolution on June 12 condemning the regime of Kim Jong Il and instituting sanctions against it.

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Rosen was hustling to get ahead of the U.N.-North Korea developments. His story, which appears to have triggered the investigation of Kim, addressed how North Korea would react to the Security Council’s action. The scoop in Rosen’s story? That the regime would in all likelihood stage another nuclear test, along with taking other defiant steps to boost the country’s nuclear-weapons capabilities.

The revelations in Rosen’s story rested on intelligence that “the Central Intelligence Agency has learned, through sources inside North Korea.” It gives little information about how its information is sourced, indicating that “FOX News has learned” the information. Furthermore, the piece states that “FOX News is withholding some details about the sources and methods by which American intelligence agencies learned of the North’s plans so as to avoid compromising sensitive overseas operations in a country — North Korea — U.S. spymasters regard as one of the world’s most difficult to penetrate.”

An unnamed White House source consulted by Rosen declined to comment for the story.

The text of the piece, however, leaves unclear just how much detail Fox News disclosed to the White House or any other government agency prior to publishing its account. The passage about withholding information, for example, doesn’t specify whether Fox News took this step in deference to a government agency, one of its sources or its own sense of propriety. Nor does it reference any negotiations whatsoever with government officials, as sensitive national-security stories often do.

On this front, media organizations and their government counterparts have developed something of a protocol over the years. After a reporter secures confidential information that could possibly compromise national security or overseas intelligence assets, the protocol calls upon the media organization to present its findings.

Bill Keller, the former executive editor of the New York Times, cites a “basic rule” among news organizations: “Obviously we don’t tell the government how we know what we know, but we try to lay out in as much detail as we can about what we’re going to report,” says Keller. The practice aligns with the best traditions of journalism: “We could be wrong,” says Keller, “and we’re giving them the opportunity to correct possible misinformation. Second, if they want to argue that, unbeknownst to us, something we’re about to report could get somebody hurt, we want to hear that out.”

It’s possible that Fox News did just that. Neither the network’s public affairs office nor Rosen, however, responded to requests for comment. The CIA, likewise, declined to comment on the matter. P.J. Crowley, who served as the State Department’s assistant secretary for public affairs at the time, says, “I’ve been involved in a lot of conversations over the years where reporters in possession of intelligence information enabled us to comment or express concerns about compromising intelligence sources. I don’t remember any such conversation prior to James Rosen’s story.”

That the government launched an intrusive leak investigation following the Rosen story suggests that if it had had the opportunity, it may well have voiced objections to the contours of Rosen’s North Korea scoop. “What they’re freaked out about is that we’re tipping off the North Koreans to some valuable source,” says Keller, riffing on the possible unease over the story. “If it wasn’t important to Rosen’s story to say that this came from some high-level North Korean source, the government might well have asked them to leave that detail out.”

Fox News may have felt it didn’t have enough time to negotiate with the government over the story, which debuted on the eve of the U.N. resolution. If published on a later date, its revelations would have had less resonance.

Though the CIA declined to comment regarding the North Korea story, it wasn’t so tight-lipped last October, when Fox News published a bombshell story offering an insider’s account of the U.S. response to the Benghazi attacks of Sept. 11, 2012. The agency doesn’t appear to have had a chance to comment on the story prior to its publication, and it issued a rare on-the-record refutation hours after it surfaced. Many of the allegations in the story have since been challenged by official reports and media accounts.