How much has DOJ overreached? Other news organizations might have to defend Fox News (Update – Search Warrant added)
... Had I seen this case last month, I’d have assumed that this had everything to do with the Obama team’s war on Fox News. Now, after the AP scandal, I’m not sure that’s all that went behind this. Eric Holder implied in his interview with NPR that spying on reporters has become routine in the Obama administration, so Rosen and Fox are probably not alone. However, I doubt that Rosen’s employer had nothing to do with this pursuit. Regardless, every reporter covering this administration has to wonder whether Big Brother Is Listening — or at least reading their e-mails and phone records. And so does every potential source within the administration.

And that, of course, is the entire point of these intimidation tactics....

Bombshell: Not just Rosen; A livid Megyn Kelly reports more at Fox News targeted by DOJ; Update: Fox statement; Update: Video

Fox News: ‘We Will Unequivocally Defend’ Rosen Against ‘Chilling’ DOJ Investigation
...Clemente’s statement comes as The New Yorker‘s Ryan Lizza uncovers the full warrant application, which makes it seem as though the FBI is interested in investigating Rosen as much as it is interested in investigating Rosen’s source. Chilling indeed.

On “America Live,” Megyn Kelly revealed that two other Fox News staffers were targeted for investigation by the DOJ on stories unrelated to Rosen’s....

Chilling report: Obama’s DOJ spied on Fox News’ James Rosen; Criminalizes reporting; Update: Fox issues statement
...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.

The case of Stephen Jin-Woo Kim, the government adviser, and James Rosen, the chief Washington correspondent for Fox News, bears striking similarities to a sweeping leaks investigation disclosed last week in which federal investigators obtained records over two months of more than 20 telephone lines assigned to the Associated Press....

...The focus of the Post’s report yesterday is that the DOJ’s surveillance of Rosen, the reporter, extended far beyond even what they did to AP reporters. The FBI tracked Rosen’s movements in and out of the State Department, traced the timing of his calls, and – most amazingly – obtained a search warrant to read two days worth of his emails, as well as all of his emails with Kim. In this case, said the Post, “investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.” It added that “court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist”....

Obama's War Against the Free Press Gets Creepier
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....

Obama DOJ formally accuses journalist in leak case of committing crimes
It is now well known that the Obama justice department has prosecuted more government leakers under the 1917 Espionage Act than all prior administrations combined - in fact, double the number of all such prior prosecutions. But as last week's controversy over the DOJ's pursuit of the phone records of AP reporters illustrated, this obsessive fixation in defense of secrecy also targets, and severely damages, journalists specifically and the newsgathering process in general....

...The focus of the Post's report yesterday is that the DOJ's surveillance of Rosen, the reporter, extended far beyond even what they did to AP reporters. The FBI tracked Rosen's movements in and out of the State Department, traced the timing of his calls, and - most amazingly - obtained a search warrant to read two days worth of his emails, as well as all of his emails with Kim. In this case, said the Post, "investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material." It added that "court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist"....

...Under US law, it is not illegal to publish classified information. That fact, along with the First Amendment's guarantee of press freedoms, is what has prevented the US government from ever prosecuting journalists for reporting on what the US government does in secret. This newfound theory of the Obama DOJ - that a journalist can be guilty of crimes for "soliciting" the disclosure of classified information - is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself. These latest revelations show that this is not just a theory but one put into practice, as the Obama DOJ submitted court documents accusing a journalist of committing crimes by doing this....

...That's what always made the establishment media's silence (or even support) in the face of the criminal investigation of WikiLeaks so remarkable: it was so obvious from the start that the theories used there could easily be exploited to criminalize the acts of mainstream journalists. That's why James Goodale, the New York Times' general counsel during the paper's historic press freedom fights with the Nixon administration, has been warning that "the biggest challenge to the press today is the threatened prosecution of WikiLeaks, and it's absolutely frightening."

Indeed, as Harvard Law Professor Yochai Benkler noted recently in the New Republic, when the judge presiding over Manning's prosecution asked military lawyers if they would "have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?", the prosecutor answered simply: "Yes, ma'am". It has long been clear that this WikiLeaks-as-criminals theory could and would be used to criminalize establishment media outlets which reported on that which the US government wanted concealed.

Now we know that the DOJ is doing exactly that: applying this theory to criminalize the acts of journalists who report on what the US government does in secret, even though there is no law that makes such reporting illegal and the First Amendment protects such conduct. Essentially accusing James Rosen of being an unindicted co-conspriator in these alleged crimes is a major escalation of the Obama DOJ's already dangerous attacks on press freedom. ...

...There is simply no defense for this behavior. Obama defenders such as Andrew Sullivan claim that this is all more complicated than media outrage suggests because of a necessary "trade-off" between press freedoms and security. So do Obama defenders believe that George Bush and Richard Nixon - who never prosecuted leakers like this or formally accused journalists of being criminals for reporting classified information - were excessively protective of press freedoms and insufficiently devoted to safeguarding secrecy? To ask that question is to mock it. Obama has gone so far beyond what every recent prior president has done in bolstering secrecy and criminalizing whistleblowing and leaks....

Is the Government Spying on Reporters More Often Than We Think?
The Justice Department's seizure of call logs related to phone lines used by dozens of Associated Press reporters has provoked a flurry of bipartisan criticism, most of which has cast the decision as a disturbing departure from the norm. AP head Gary Pruitt condemned the decision, part of an investigation into leaks of classified information, as a "massive and unprecedented intrusion." Yet there's plenty of circumstantial evidence suggesting the seizure may not be unprecedented—just rarely disclosed....

...It wouldn't be surprising if there were more cases like this we've never heard about. Here's why: The Justice Department's rules only say the media must be informed about "subpoenas" for "telephone toll records." The FBI's operations guidelines interprets those rules quite literally, making clear the requirement "concerns only grand jury subpoenas." That is, these rules don't apply to National Security Letters, which are secret demands for information used by the FBI that don't require judicial approval. The narrow FBI interpretation also doesn't cover administrative subpoenas, which are issued by federal agencies without prior judicial review. Last year, the FBI issued NSLs for the communications and financial records of more than 6,000 Americans—and the number has been far higher in previous years. The procedures that do apply to those tools have been redacted from publicly available versions of the FBI guidelines. Thus, it's no shocker the AP seizure would seem like an "unprecedented intrusion" if the government doesn't think it has to tell us about the precedents. And there's no telling if the Justice Department rules (and the FBI's interpretation) allow the feds to seize without warning other types of electronic communications records that could reveal a journalist's e-mail, chat, or Web browsing activity.

Is it paranoid to fear the Justice Department and the FBI are sidestepping the rules? Consider a case first reported in 2008, and discussed at length in a damning (but heavily redacted) 2010 report from the Justice Department's Office of the Inspector General. In this instance, the FBI obtained nearly two years of phone records for lines belonging to Washington Post and New York Times bureaus and reporters—even though the FBI had initially requested records covering only seven months. In what the OIG called a "serious abuse of the FBI’s authority to obtain information," agents seized these records under false pretenses, "without any legal process or Attorney General approval." And these records remained in the FBI’s database for over three years before the OIG or the press found out....