When Fox News' chief Washington correspondent published a story gleaned from a confidential source that detailed plans by North Korea to test a ballistic missile, he was acting as a professional journalist, not a criminal co-conspirator. But in its overzealous efforts to determine who leaked the information to James Rosen, the Obama administration has conflated a journalist performing his traditional role as a government watchdog with aiding and abetting a criminal conspiracy. President Barack Obama, despite saying this week he is "troubled" that leak investigations could chill reporting on the government, seems to have forgotten the press protections afforded under the First Amendment.
Rosen's 2009 FoxNews.com article detailed concerns by U.S. intelligence officials that North Korea would test a ballistic missile in response to a U.N. Security Council resolution condemning its nuclear and ballistic missile programs. Rosen quoted an unnamed source who described North Korea's missile capability.
In a Justice Department inquiry aimed at determining Rosen's source, investigators searched the reporter's emails, along with phone records and security logs at the State Department that recorded his comings and goings. Eventually, State Department adviser Stephen Jin-Woo Kim was indicted for leaking the classified information. Kim has pleaded innocent. Rosen has not been indicted, though a court affidavit filed by federal investigators describes Rosen as "at the very least, either as an aider, abettor and/or co-conspirator."
Cajoling a source is not a crime. Ultimately it is the source's decision whether to cooperate with a journalist. And for the Justice Department to suggest otherwise shows an extraordinary hostility to the traditions of a free press in this country and its vital role in American democracy.
Revelations in the Rosen case come in the wake of equally disturbing disclosures that the Justice Department had secretly seized two months' worth of cellular, home and office phone records of Associated Press reporters and editors in Washington, New York and New Hartford, Conn., to determine who leaked information about a disrupted al-Qaida Yemeni bomb plot.
But the potential damage to democracy goes beyond these incidents. The administration's efforts will give many potential sources pause before they work with a journalist to provide information, ultimately undermining transparent government. Obama said in a speech this week that "journalists should not be at legal risk for doing their jobs'' and that the Justice Department will review its guidelines for leak investigations involving reporters. That is a step forward. Calling a journalist doing his job a "co-conspirator" because he tried to persuade a source to provide information suggests an administration committed to controlling information even at the expense of a free press that helps hold government accountable.