Perhaps the most chilling aspect of the U.S. Department of Justice "investigation" of Fox News chief correspondent James Rosen isn't the intrusive tracking of his movements and contacts — although that's disturbing enough — but the basis for the criminal charges he may ultimately face. At its heart, the allegation that Rosen broke the law "at the very least, either as an aider, abettor and/or co-conspirator” is based on nothing more than meeting with and asking questions of government adviser Stephen Jin-Woo Kim, who told him the non-shocking information that North Korea could very well respond to United Nations sanctions with more nuclear tests. That's right. Meeting an official and asking questions, which is what journalists do, is interpreted as criminal conspiracy. Taken with the already brewing scandal over the snooping of Associated Press phone records, we're looking at a full-fledged assault on the free press.
The path that led to allegations of illegal journalism is bad enough. In search of leaks, reports the Washington Post, Justice Department officials went full spy movie:
They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails.
So, now we have a control-freak government that's determined to plug every source of unauthorized information and that has already prosecuted more leakers than all of its predecessors combined. So much for transparency. But to go after journalists who receive that information and to actually accuse them of crimes for asking questions is a fresh new step. As the Post adds:
[I]t remains an open question whether it’s ever illegal, given the First Amendment’s protection of press freedom, for a reporter to solicit information. No reporter, including Rosen, has been prosecuted for doing so.
Glenn Greenwald points out in the Guardian that the idea that asking questions can be criminal is at the root of the U.S. government's efforts against Julian Assange.
That same "solicitation" theory, as the New York Times reported back in 2011, is the one the Obama DOJ has been using to justify its ongoing criminal investigation of WikiLeaks and Julian Assange: that because Assange solicited or encouraged Manning to leak classified information, the US government can "charge [Assange] as a conspirator in the leak, not just as a passive recipient of the documents who then published them."
Having been tried out against a relative outlier like Assange, the theory that soliciting information can be criminal is apparently now ready for application against the mainstream press. We already know that the president explicitly considers freedom of the press to be only one consideration among several that have to be balanced, apparently according to the priorities of officials in his administration. He told us so just days ago, when asked about the government's treatment of the AP:
Now, with respect to the Department of Justice, I’m not going to comment on a specific and pending case. But I can talk broadly about the balance that we have to strike. 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.
U.S. national security is dependent on those folks being able to operate with confidence that folks back home have their backs, so they're not just left out there high and dry, and potentially put in even more danger than they may already be. And so I make no apologies, and I don't think the American people would expect me as Commander-in-Chief not to be concerned about information that might compromise their missions or might get them killed.
So, in the name of "balancing" government officials' priorities with core individual freedoms protected in the Bill of Rights, we're at a point now where journalists can be spied upon to find out their sources of information. And then they may actually be prosecuted for asking the "wrong" questions.