Federal judges should be on notice: The U.S. Justice Department seems fully prepared to stretch the truth -- or worse, spread falsehoods -- to obtain search warrants. That's what it did in labeling a journalist as an espionage "co-conspirator" for simply doing what reporters have always done -- attempting to solicit information from government employees.
As has been revealed by The Washington Post, the FBI obtained a search warrant in 2009 allowing it to track the emails and phone records of James Rosen, a Fox News reporter. Rosen was working on a story about how North Korea was likely to react to U.N. sanctions. Rosen reportedly received information from Stephen Jin-Woo Kim, a State Department adviser who had received a top-secret CIA memo predicting that North Korea might conduct a nuclear missile test in response to sanctions.
No one is questioning the Obama administration's decision to investigate and prosecute Kim. Yet it is another matter entirely to label a reporter as "co-conspirator" for attempting to obtain that kind of information. That's what FBI agent Reginald Reyes did in successfully obtaining a search warrant against Rosen from Alan Kay, a U.S. magistrate judge.
Conservatives and liberals may not agree on much. Yet there should be consensus from both sides on this point: It serves the public interest when a free press is protected from prosecution for attempting to ferret out secrets that the government wants hidden. Once the government has free rein to arrest reporters for learning about secrets, we move one step closer to a totalitarian government.
The Justice Department of Attorney General Eric Holder, which has pursued more leak investigations under the 1917 Espionage Act than all previous administrations combined, is now trying to backpedal on claims that Rosen might have violated the law. "Saying that there is probable cause ... and charging the person with a crime are two different things," the department said in a statement Monday.
That just affirms the widespread belief that the Justice Department is willing to go to any lengths to obtain search warrants and create a chilling effect on investigative reporting.
To keep things secret, will federal agents lie to a court?
Federal judges, including Alan Kay, should ask themselves that question.