“Yes of course bub," responded Frese. “If helping her helps you, I’m down. I just want to see my bubs progress.”
Macias responded, “Of course buhlou.”
“Bubs” and “buhlou,” huh?
Those aren’t the clinical, op-sec terms you might expect from a major national media outlet communicating with a key government source. But there they are in an exhibit to one of the filings in United States of America v. Henry Kyle Frese, the criminal case against the now 31-year-old. In October 2019, the Justice Department charged Frese with “unauthorized disclosure of TOP SECRET information [that] could reasonably be expected to cause exceptionally grave harm to the national security.” He pleaded guilty in February and was recently sentenced to 30 months in prison.
Yes, another federal leak prosecution. The move to punish the revelation of state secrets to media outlets has hardened over the years into a reliable prong of anti-mediaism in the United States. It happens to be bipartisan, too, beginning in the second half of the George W. Bush administration and gaining steam under President Barack Obama and President Trump.
In addition to scaring potential sources in the federal government, it carries the fringe benefit of embarrassing journalists in the mainstream media who fail to take all the proper precautions to protect their sources. “Generally what [government officials] do is they use court documents, either from FBI agent affidavits or other court documents to make reporters look bad as part of their prosecution," says James Risen, director of First Look Media’s Press Freedom Defense Fund and a longtime reporter on U.S. intelligence, “and it’s really part of their broader effort to criminalize journalism.”
That effort sometimes piggybacks on the boneheaded decisions of the leakers and the journalists themselves. Macias, for instance, communicated with Frese via Twitter DMs — a third-party platform whose content the feds can vacuum with a search warrant.* Frese and Macias exchanged an enormous volume of phone and text communication, as documented in court filings. And we’re burying the op-sec lede here: Frese and Macias had a romantic relationship and shared the same address from from January 2018 until November 2018, according to court documents.
During that time, according to the Justice Department, Macias published eight articles containing classified information about the weapons capabilities of certain foreign countries. A sentencing memo from Frese’s attorney, Stuart Sears, spells out the pressures that the analyst felt as he hovered at the intersection of his personal and professional lives: “Following a traumatic break-up with a long-term girlfriend, Mr. Frese slipped into a depressive state. It was during that period that he met and began dating Journalist 1,” reads the document, referring to Macias.
“The relationship quickly became a priority and Mr. Frese focused a lot of time and energy in to making it work,” continues Frese’s sentencing memo. “At the same time, Journalist 1’s career was stalling and she would ask Mr. Frese to share information that she could use to either confirm other information she had received or to give her a lead on potential new stories. At first those requests were rebuffed, but as the requests mounted and as the relationship deteriorated over time, he eventually relented. He did so for the purpose of helping her advance her career and with the hope of improving their relationship.”
Right there is a heap of work for the CNBC standards folks. A federal court document indicates that Macias had a romantic relationship with a source and pressured that source for information. Is CNBC okay with that? Did Macias alert her supervisors about her relationship? If so, did they approve of the setup? There are few conflicts of interest more acute than this scenario, considering that it’s impossible to report objectively about any matter in the orbit of your romantic interest.
The Erik Wemple Blog sent questions to CNBC spokesman Brian Steel, who responded, “No comment.”
Contrast CNBC’s response with that of the New York Times, which faced far less troublesome circumstances in 2018. A federal indictment charged James Wolfe, former security director for the Senate Intelligence Committee, with lying to investigators about his contacts with reporters. One of the reporters was Ali Watkins, who carried on a multiyear romantic relationship with Wolfe while she covered the committee for outlets including HuffPost and Politico. By the time she’d moved to the Times, however, she’d changed beats, meaning she had no conflict of interest at the newspaper.
Even so, the New York Times — unlike CNBC — stepped forward to address the issues. “Ali is a talented journalist, and no one has challenged the accuracy of her reporting,” said Executive Editor Dean Baquet, who announced that Watkins would be moving to a new beat outside of Washington. “She has also made some poor judgments. But as she started her career, I believe she was not well served by some editors elsewhere who failed to respond appropriately to her disclosures about her relationships.” Those words figured into an industry-wide debate about coziness with sources.
Fox News felt the sting of federal scrutiny in 2013, via an affidavit for a search warrant involving a State Department leak case. The document showed how then-Fox News reporter James Rosen dealt with alleged source Stephen Jin-Woo Kim. “Let’s break some news,” exhorted Rosen in one email. He even devised code names for their communications, with Rosen’s being “Alex.” The FBI document mocks Rosen’s daft op-sec by noting what rested below “Alex” on one of his emails to his source: “(The electronic signature to this email following the word ‘Alex’ identifies the Reporter by the Reporter’s full name, phone number, e-mail address, and media organization.)” Jack Shafer, then with Reuters, slammed Rosen’s tradecraft.
Don’t forget the Intercept, either. In 2017, the feds filed an indictment of National Security Agency contractor Reality Winner, complete with shaming details about reportorial tactics. After the outlet received a document with revelations about Russian hacking, it sent the document to the government for verification purposes. Mistake! "The U.S. Government Agency examined the document shared by the News Outlet and determined the pages of the intelligence reporting appeared to be folded and/or creased, suggesting they had been printed and hand-carried out of a secured space,” reads the criminal complaint. Investigative reporter Barton Gellman ripped the Intercept for “egregious mistakes” in pursuing the story.
The Intercept, which received the document anonymously, acknowledged shortcomings in its source-protection methods. “As the news outlet Winner is accused of leaking to, the Intercept has a unique perspective on her case and a passionate desire to see her receive a fair trial — even though we had no idea who our source was and still have no independent knowledge of the source’s identity,” said top Intercept editor Betsy Reed in a statement. A fund operated by the Intercept’s parent company, First Look, assisted Winner with her legal defense.
News organizations should be held accountable for how they protect their national security sources; that’s one of their core responsibilities. That said, the Erik Wemple Blog refuses to snark about any of the op-sec miscues exposed in leak-case court documents. No journalist, after all, wants their worst moments captured by the FBI and stored on PACER for eternity.
Yet there’s a more momentous backdrop here: The leak prosecutions that have forced this accountability on the media are themselves a scourge in which federal law enforcement is deployed to stifle the sharing of newsworthy information and to depict reporters as corrupt actors out to harm national security. In the affidavit regarding Rosen, for instance, the Justice Department asserted that there was probable cause to believe he was an “an aider and abettor and/or co-conspirator” in a violation of the Espionage Act.
There’s probable cause, too, to question whether the federal countermeasures are equal to the conduct in question. In the Rosen-Kim case, a State Department official said in court documents that the information leaked to Rosen was a “nothing burger.” In the Wolfe case, the former Senate aide was accused only of lying to investigators about his contacts with reporters, not leaking classified information.
In the Frese case, who knows? Macias used allegedly leaked information to produce several inside-baseball snoozers about foreign weapons systems. Did they compromise national security? In its sentencing memo, the Justice Department notes that it need only show that leaks could cause potential harm to national security; in this case, however, it lays out “actual harm” — in a classified document provided to the court under seal.
In the past, when an official was suspected of leaking, it was handled differently. The official might find himself cut out of the loop and not invited to the key meetings. He might get a letter of reprimand in his file. He might even lose his security clearance and be fired. But it was virtually unheard of, until very recently, for the government to treat as a crime the unauthorized public disclosure of military and intelligence information.
National security attorney Mark Zaid attributes the boom in leak prosecutions to the recent ability of authorities to track loose-lipped officials — and their interlocutors in the media — via email, Twitter and other Internet platforms. “I don’t think there’s any difference in the fervor by which the government wants to find leakers,” says Zaid. “The government just couldn’t find these people and now it’s a lot easier to do so.”
As for the impetus to make the media look bad, Zaid says, “There’s an ability to embarrass the media when the media deserves to be embarrassed.”
*Correction: A previous version of this post indicated that Twitter DMs could be secured with a subpoena. From Twitter itself: “Requests for the contents of communications (e.g., Tweets, Direct Messages, media) require a valid search warrant or equivalent to be properly served on the correct Twitter corporate entity.”
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