(Updates with additional comment from the Justice Department.)
Fox News says it is outraged by a Washington Post report that the Justice Department monitored one of its reporters — even tracking his visits to the State Department — as it investigated a leak of classified material.
"We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter," said Fox News executive vice president of news Michael Clemente in a 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 is pictured at left.)
The Post report Monday followed the Associated Press saying last week that the Justice Department obtained phone records for more than 20 of its phone lines for a two-month period in another leak investigation. News of the Rosen surveillance raises yet more questions about the extent of the Obama Administration's spying on reporters.
The Justice Department used Rosen's security badge to track how often he visited the State Department, according to an affidavit obtained by the Post. (See below.) It also traced the timing of his calls with a State Department security adviser suspected of sharing the classified information, and obtained a search warrant for Rosen's personal emails, the Post said. The investigation took place in 2010.
The adviser accused of disclosing the information, Stephen Jin-Woo Kim, faces federal charges of disclosing national defense information. An FBI agent said in the 2010 affidavit that there was "probable cause to believe" that Rosen broke the law "as an aider and abettor and/or co-conspirator."
But two years later, Rosen has not been charged with any wrongdoing. That could suggest that there was no evidence against him, that the Justice Department realized the potential blowback of prosecuting a reporter for trying to gather information, or both.
Critics of the monitoring say it threatens reporters' ability to uncover information that the public has a right to know.
"Search warrants like these have a severe chilling effect on the free flow of important information to the public,” First Amendment lawyer Charles Tobin told the paper. “That’s a very dangerous road to go down."
The Justice Department said in a statement that it "exhausted all reasonable non-media alternatives for collecting this evidence before seeking court approval for a search warrant. Based on the investigation and all of the facts known to date, no other individuals, including the reporter, have been charged since Mr. Kim was indicted nearly five years ago."
The department also said leaks can "pose a serious risk of harm to our national security" and that its investigators "follow all applicable laws, regulations, and longstanding Department of Justice policies intended to safeguard the First Amendment interests of the press in reporting the news and the public in receiving it."
The Post noted that privacy protections limit searching or seizing a reporter’s work, unless there is evidence of lawbreaking. A federal judge signed off on the FBI agent's request for a search warrant, agreeing that there was probable cause for investigating Rosen.
As Fox News and the Post have pointed out, no reporter, including Rosen, has ever been prosecuted for seeking information.
But New York Times reporter Judith Miller was held in contempt of court and jailed for 85 days in 2005 for refusing to identify a source, and FoxNews.com reporter Jana Winter potentially faces jail time for refusing to name sources in her reporting on Colorado shooting defendant James Holmes.
Read the affidavit: