Another Chilling Leak Investigation

With the decision to label a Fox News television reporter a possible “co-conspirator” in a criminal investigation of a news leak, the Obama administration has moved beyond protecting government secrets to threatening fundamental freedoms of the press to gather news.

The latest reported episode involves James Rosen, the chief Washington correspondent for Fox News. In 2009, Mr. Rosen reported on FoxNews.com that North Korea planned to launch a missile in response to the condemnation of its nuclear tests by the United Nations Security Council. The Justice Department investigated the source of the article and later indicted Stephen Jin-Woo Kim, a State Department security adviser, on charges of leaking classified information. Mr. Kim pleaded not guilty.

Normally, the inquiry would have ended with Mr. Kim — leak investigations usually focus on the source, not the reporter. But, in this case, federal prosecutors also asked a federal judge for permission to examine Mr. Rosen’s personal e-mails, arguing that “there is probable cause to believe” Mr. Rosen is “an aider and abettor and/or co-conspirator” in the leak.

An affidavit filed with the judge made it clear that Mr. Rosen’s comings and goings at the State Department were carefully monitored. It said further that he tried to elicit information by “employing flattery and playing to Mr. Kim’s vanity and ego.” That would hardly be a first in the relationship between journalists and government officials, and, certainly, it is not grounds for a conspiracy charge. Though Mr. Rosen was not charged, the F.B.I. request for his e-mail account was granted secretly in late May 2010. The government was allowed to rummage through Mr. Rosen’s e-mails for at least 30 days. (The New Yorker reported Tuesday that Justice Department officials also seized phone records associated with White House staffers and Fox News as part of the Kim case.)

Michael Clemente, the executive vice president of Fox News, said on Monday that it was “downright chilling” that Mr. Rosen “was named a criminal co-conspirator for simply doing his job as a reporter.” Bruce Brown, the executive director of the Reporters Committee for Freedom of the Press, added on Tuesday that treating “routine news-gathering efforts as evidence of criminality is extremely troubling and corrodes time-honored understandings between the public and the government about the role of the free press.”

The Rosen case follows other signs that the administration has gone overboard in its zeal to find and muzzle insiders. The Associated Press revealed last week that the government had secretly seized two months’ worth of records for telephones used by the agency’s staff, partly to determine the source of a leak about a report involving a foiled terrorist plot in Yemen. At least two other major leak investigations are continuing. Six current and former administration officials have been indicted under the old Espionage Act for leaking classified information to the press and public. In 2010, a federal judge in Maryland sentenced a leaker to 20 months in jail while admitting that he was “in the dark as to the kind of documents” involved in the leak or what impact they had on national security.

Obama administration officials often talk about the balance between protecting secrets and protecting the constitutional rights of a free press. Accusing a reporter of being a “co-conspirator,” on top of other zealous and secretive investigations, shows a heavy tilt toward secrecy and insufficient concern about a free press.

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