Obama administration spied on Fox News reporter James Rosen: Report [W:85]

Sheik Yerbuti · May 21, 2013

Taylor said:
It does?

What does this have to do with cryptography?

working with someone to knowingly commit a crime is conspiracy and potentially worse, knowingly publishing classified information, as Rosen may have done, could violate the law I posted earlier.

The Prof · May 21, 2013

Justice’s actions have been criticized by lawmakers and journalists across the political spectrum, including David Corn, a reporter for the liberal magazine Mother Jones.

“If a reporter asks a source who handles classified material for info, does DOJ see that as a crime?,” Corn asked on Twitter. “The Rosen case may be more imp. than AP.”

Rep. Henry Cuellar (D-Texas) on Friday criticized Justice’s tracking of AP phone records.

“Casing and chilling the press by doing that type of sweep, to me, as an attorney, I said, 'Ew, that's [worrisome],' ” Cuellar said. “They should have gone to a judge.”

Rep. Jared Polis (D-Colo.) introduced legislation with conservative Rep. Justin Amash (R-Mich.) last week that would require law enforcers to obtain a court order before they can procure reporters' records.

“It needs to be targeted,” Polis told MSNBC's Chris Jansing on Monday. “They can't simply cast a broad net in a fishing expedition as it appears like they did in this case.”

White House press secretary Jay Carney avoided comments on the Fox News case on Monday, repeatedly saying it was an ongoing investigation.

He argued President Obama is strong ally of news organizations’ right to investigate and report, but said national security leaks could jeopardize the lives of American military and intelligence officials.

Obama himself has made no apologies for the Justice’s sweep of AP phone records.

He said last week the administration has struck a balance between protecting troops in the field and allowing reporters the free reign to hold the government into account.

“Leaks related to national security can put people at risk. They can put men and women in uniform that I’ve sent into the battlefield at risk. They can put some of our intelligence officers, who are in various, dangerous situations that are easily compromised, at risk,” Obama said Thursday during a press briefing at the White House. “Part of my job is to make sure that we’re protecting what they do, while still accommodating for the need for information — or the need for the public to be informed and be able to hold my office accountable.”

Rep. Charles Rangel (D-N.Y.), says the administration “has more to share” with Congress about the AP episode.

“In terms of the Constitutional rights of freedom of speech and reporters I think, in this particular case, as long as it doesn't endanger the lives of any people, that they ought to make a special effort to be more forthcoming in why they took this very unusual step to acquire telephone numbers,” Rangel said Friday.

Tensions rise between press, Obama | TheHill

Sheik Yerbuti · May 21, 2013

trfjr said:
every day is one day closer getting rid of Obama the tyrant and is corrupt Chicago administration

That's very true. Every single day brings us 1 day closer to 1.1.2017

Sheik Yerbuti · May 21, 2013

Mason66 said:
How would Rosen know what was classified and what is not?

Umm, he asked for the classified information to be coded.

CaptinSarcastic · May 21, 2013

mpg said:
Clear-and-present danger test legal definition of Clear-and-present danger test. Clear-and-present danger test synonyms by the Free Online Law Dictionary.

Okay... well that tells precisely what the court may, or may not, think if they were to consider this case.

Taylor · May 22, 2013

Sheik Yerbuti said:
working with someone to knowingly commit a crime is conspiracy and potentially worse, knowingly publishing classified information, as Rosen may have done, could violate the law I posted earlier.

Actually, it's not illegal to publish classified material, with a few exceptions - one being cryptography, the law you posted. It's not relevant to this case which has nothing to do with codes, ciphers, or COMINT.

Sheik Yerbuti · May 22, 2013

Taylor said:
Actually, it's not illegal to publish classified material, with a few exceptions - one being cryptography, the law you posted. It's not relevant to this case which has nothing to do with codes, ciphers, or COMINT.

Which part of the highlighted sections do you believe don't apply to Mr. Rosen?

18 USC § 798 - Disclosure of classified information
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
Shall be fined under this title or imprisoned not more than ten years, or both.
(b) As used in subsection (a) of this section—
The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;
The terms “code,” “cipher,” and “cryptographic system” include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;
The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;
The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;
The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.
(c) Nothing in this section shall prohibit the furnishing, upon lawful demand, of information to any regularly constituted committee of the Senate or House of Representatives of the United States of America, or joint committee thereof.
(d)
(1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law—
(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and
(B) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.
(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1).
(3) Except as provided in paragraph (4), the provisions of subsections (b), (c), and (e) through (p) ofsection 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853 (b), (c), and (e)–(p)), shall apply to—
(A) property subject to forfeiture under this subsection;
(B) any seizure or disposition of such property; and
(C) any administrative or judicial proceeding in relation to such property,
if not inconsistent with this subsection.
(4) Notwithstanding section 524 (c) of title 28, there shall be deposited in the Crime Victims Fund established under section 1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601) all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.
(5) As used in this subsection, the term “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.[/QUOTE]

Taylor · May 22, 2013

sheik yerbuti said:
which part of the highlighted sections do you believe don't apply to mr. Rosen?

18 usc § 798 - disclosure of classified information
(a) whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the united states or for the benefit of any foreign government to the detriment of the united states any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the united states or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the united states or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the united states or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
shall be fined under this title or imprisoned not more than ten years, or both

COMINT is the acronym for communications intelligence... not relevant.

Sheik Yerbuti · May 22, 2013

Taylor said:
COMINT is the acronym for communications intelligence... not relevant.

You could be correct; and indeed, perusing the affidavit reveals the relevant statute is Title 18 usc § 793, not Title 18 usc § 798

18 U.S.C. § 793 : US Code - Section 793: Gathering, transmitting or losing defense information

(d)Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

... and ...

(g)If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

Taylor · May 22, 2013

Sheik Yerbuti said:
You could be correct; and indeed, perusing the affidavit reveals the relevant statute is Title 18 usc § 793, not Title 18 usc § 798

18 U.S.C. § 793 : US Code - Section 793: Gathering, transmitting or losing defense information

(d)Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

... and ...

(g)If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

I'm not sure (d) applies because he did not have lawful possession or access. They've certainly accused him of conspiring, but if he's guilty of that, so is just about every major reporter in Washington... hundreds or thousands.

The government would also have to demonstrate why the information relates to national defense -not just national security but to the defense of the nation, including evidence that he understood it as such. Based on the information currently available, the idea that he conspired to knowingly publish information critical to the defense of our nation seems silly... it's not like he published information on how to build nukes, or on vulnerabilities to our military infrastructure.

Sheik Yerbuti · May 22, 2013

Taylor said:
I'm not sure (d) applies because he did not have lawful possession or access. They've certainly accused him of conspiring, but if he's guilty of that, so is just about every major reporter in Washington... hundreds or thousands.

Well he can't possibly be innocent of section (d) unless he's guilty of section (g). As far as other reporters, they are irrelevant. That's like complaining that you got a speeding ticket while everyone else around you was also speeding. That certainly doesn't render you innocent.

Taylor said:
The government would also have to demonstrate why the information relates to national defense -not just national security but to the defense of the nation, including evidence that he understood it as such. Based on the information currently available, the idea that he conspired to knowingly publish information critical to the defense of our nation seems silly... it's not like he published information on how to build nukes, or on vulnerabilities to our military infrastructure.

The government only needs to demonstrate that if they're going to prosecute him, which so far, they have not done (though they did charge Kim). Regardless of whether or not he violated that statute, there was enough probable cause to issue a court ordered warrant.

Taylor · May 22, 2013

Sheik Yerbuti said:
Well he can't possibly be innocent of section (d) unless he's guilty of section (g). As far as other reporters, they are irrelevant. That's like complaining that you got a speeding ticket while everyone else around you was also speeding. That certainly doesn't render you innocent.

He isn't guilty of (d). The way I read it, to conspire you only need to have knowledge that your partner(s) are guilty of (d), but admittedly there's a bit of ambiguity given that first line in (g).

As far as other reporters, they are only irrelevant if you don't believe there should be equal protection under the law.

The government only needs to demonstrate that if they're going to prosecute him, which so far, they have not done (though they did charge Kim). Regardless of whether or not he violated that statute, there was enough probable cause to issue a court ordered warrant.

They aren't going to prosecute because it would never stand up in court. I doubt it was ever their intent.

Sheik Yerbuti · May 22, 2013

Taylor said:
He isn't guilty of (d). The way I read it, to conspire you only need to have knowledge that your partner(s) are guilty of (d), but admittedly there's a bit of ambiguity given that first line in (g).

As far as other reporters, they are only irrelevant if you don't believe there should be equal protection under the law.

They aren't going to prosecute because it would never stand up in court. I doubt it was ever their intent.

Not sure how you figure there's an issue with equal protection given there are no less than 20 other reporters who've been targets of investigations? At any rate, with the appearance of the law above being violated, there was sufficient probable cause for the warrant.

nota bene · May 22, 2013

Dana Milbank thinks this assault on the First Amendment is more serious than the Benghazi and IRS scandals and explains why--whether you're liberal, conservative, or not paying attention--you should care and how serious this is:

"To treat a reporter as a criminal for doing his job — seeking out information the government doesn’t want made public — deprives Americans of the First Amendment freedom on which all other constitutional rights are based. Guns? Privacy? Due process? Equal protection? If you can’t speak out, you can’t defend those rights, either."

Beyond that, Milbank says, "the administration’s actions shatter the president’s credibility ."

Dana Milbank: In AP, Rosen investigations, government makes criminals of reporters - The Washington Post

Taylor · May 22, 2013

Sheik Yerbuti said:
At any rate, with the appearance of the law above being violated, there was sufficient probable cause for the warrant.

Funny thing is, after doing some additional checking, I was right - 793(d) doesn't apply to the Rosen because he didn't have lawful possession or access - the correct section would have been (e) - so you really have to wonder about the level of scrutiny applied by the judge.

See Senate Report #2369, part 1, 81st Congress, 2nd session (1950):
"The only difference between subsection (d) and subsection(e) of section 793 is that a demand by the person entitled to receive the items would be a necessary element of an offense under subsection (d) where the possession is lawful [compared to (e) where possession is unauthorized]"

Taylor · May 22, 2013

Sheik Yerbuti said:
Not sure how you figure there's an issue with equal protection given there are no less than 20 other reporters who've been targets of investigations?

It's not just me - many, many journalists have made the same claim. With this law, there is clearly a danger of selective prosecution and concerns are well founded that the government could use it to punish its enemies.

humbolt · May 22, 2013

Taylor said:
It's not just me - many, many journalists have made the same claim. With this law, there is clearly a danger of selective prosecution and concerns are well founded that the government could use it to punish its enemies.

According to the BLS, there were 58,500 reporters working full time in this country in 2010. Let's see. 20 divided by 58,500. Thats 3.14% to the -4th, which is a really small number.

Taylor · May 22, 2013

humbolt said:
According to the BLS, there were 58,500 reporters working full time in this country in 2010. Let's see. 20 divided by 58,500. Thats 3.14% to the -4th, which is a really small number.

Well I should hope so!

But the fact remains that there are 100's of reporters that the administration could go after, but they've only gone after the guy from Fox News. Why? Either they singled him out to send a message, or there is a lot more to this story than what we know right now. They didn't need to accuse of committing a crime in order to search his phone records.

polgara · May 22, 2013

humbolt said:
According to the BLS, there were 58,500 reporters working full time in this country in 2010. Let's see. 20 divided by 58,500. Thats 3.14% to the -4th, which is a really small number.

I think that America needs feisty Alexandra Petri from the Washington Post to be moved to a front page editor position! :thumbs: She's one that calls 'em as she sees 'em, and I don't believe she's easily intimidated. I'd like to see more by Woodward, and others like him, too! Attempting to intimidate and strangle the press, and others who differ with the administration, is so wrong!

"....It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State." Joseph Goebbels

humbolt · May 22, 2013

Taylor said:
Well I should hope so!

But the fact remains that there are 100's of reporters that the administration could go after, but they've only gone after the guy from Fox News. Why? Either they singled him out to send a message, or there is a lot more to this story than what we know right now. They didn't need to accuse of committing a crime in order to search his phone records.

Oh, I agree. The NY Times has printed more leaked information than anybody else in the news business. It's the nature of the leak, the reporter, the company the reporter works for, and any others who have similar work in mind. My point in quoting the numbers is that this effort was highly, highly selective, and included a reporter, who is not responsible for the nature of the material provided, for no justifiable reason.

Sheik Yerbuti · May 22, 2013

Taylor said:
Well I should hope so!But the fact remains that there are 100's of reporters that the administration could go after, but they've only gone after the guy from Fox News. Why? Either they singled him out to send a message, or there is a lot more to this story than what we know right now. They didn't need to accuse of committing a crime in order to search his phone records.

Huh? How do you figure they've "only gone after the guy from Fox" when they went after 20 others from the AP?

Taylor · May 22, 2013

Sheik Yerbuti said:
Huh? How do you figure they've "only gone after the guy from Fox" when they went after 20 others from the AP?

They accused 20 AP reporters of committing crimes? I don't think so.

Sheik Yerbuti · May 22, 2013

Taylor said:
They accused 20 AP reporters of committing crimes? I don't think so.

They obtained warrants for those other 20 some odd journalists. Each warrant, requiring probable cause of committing a crime.

Taylor · May 22, 2013

Sheik Yerbuti said:
They obtained warrants for those other 20 some odd journalists. Each warrant, requiring probable cause of committing a crime.

On behalf of the analyst. Rosen was the only journalist accused of committing a crime.

The Prof · May 22, 2013

The chief judge of the District’s federal court issued an unusual order Wednesday, apologizing to the public and the media for not making certain court documents widely available online.

The gesture of transparency by U.S. District Judge Royce C. Lamberth comes at a time when the Obama administration is under scrutiny for an unprecedented number of leak investigations, including one showing that the Justice Department had secretly probed the news-gathering activities of Fox News reporter James Rosen.

The investigation of Rosen was first reported Monday, after The Washington Post obtained court documents containing details of the case.

A federal judge had ordered the documents unsealed in November 2011, but they were kept sealed for 18 months and not posted on the court’s online docket until last week, after The Post inquired about them.

Lamberth blamed a series of administrative errors and said a review of the “performance of the personnel involved is underway.” He also said he was creating a new category on the court’s Web site where all search and arrest warrants will be made public unless they fall under a separate sealing order.

Judge apologizes for lack of transparency in leak probe - The Washington Post