James Rosen: Fox News reporter targeted as 'co- conspirator' in spying case

The Obama administration has investigated a reporter with Fox News as a probable "co-conspirator" in a criminal spying case after a report based on a State Department leak.

The Justice Department named Fox News's chief Washington correspondent James Rosen "at the very least, either as an aider, abettor and/or co-conspirator" in a 2010 espionage case against State Department security adviser Stephen Jin-Woo Kim. The accusation appears in a court affidavit first reported by the Washington Post.

Kim is charged with handing over a classified government report in June 2009 that said North Korea would probably test a nuclear weapon in response to a UN resolution condemning previous tests. Rosen reported the analysis on 11 June under the headline 'North Korea Intends to Match UN Resolution With New Nuclear Test'.

The FBI sought and obtained a warrant to seize all of Rosen's correspondence with Kim, and an additional two days' worth of Rosen's personal email, the Post reported. The bureau also obtained Rosen's phone records and used security badge records to track his movements to and from the State Department.

Fox News issued a sharply worded statement on Monday calling the episode "downright chilling".

"We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter," Fox News executive vice-president of news editorial Michael Clemente said in the statement. "In fact, it is downright chilling. We will unequivocally defend his right to operate as a member of what up until now has always been a free press."

Rosen has not been charged with a crime in the case. Kim was indicted in August 2010 on charges of violating the Espionage Act of 1917, one of a batch of six cases in which the Obama administration began to use the first world war-era spying law to prosecute suspected government whistleblowers.

Even in cases of historic import in which the Espionage Act was used to prosecute whistleblowers, notably the 1971 Pentagon Papers case, the government did not, in spite of strenuous efforts, find grounds to prosecute the media for publishing the results of a leak. The government has not charged WikiLeaks founder Julian Assange for the publication online of an unprecedented amount of classified material. However, Assange, who has taken refuge at the Ecuadorian embassy in London, has said he expects to be charged.

The government has prosecuted and even imprisoned journalists in leak cases in the past for the journalists' refusal to disclose a confidential source. In such cases, notably the 2005 Judith Miller case, journalists have been charged with contempt of court.

Instead of relying on the threat of a contempt charge to get journalists to divulge their sources, the Obama administration has used warrantless wiretapping and dragnet records seizures to identify who is talking to whom.

Last week it emerged that the Department of Justice had seized phone records for more than 20 lines used by the Associated Press, in possible violation of regulations governing such seizures. There have been no reports of the government accusing journalists of criminal activity in that case.