The first is that, as I said earlier today, you cross a big line when you go from investigating journalists to prosecute leakers to accusing journalists themselves of committing crimes by doing what is by any measure their jobs - trying to sleuth out as much information as possible in order to inform their readers. It's important to note that the DOJ didn't do that. Rosen wasn't charged with anything. He apparently didn't even know any of this had happened until the piece was published in the Washington Post over the weekend. But the government did walk up to the line by suggesting the theory that Rosen had himself committed a crime in order to get a warrant to examine his email.
Reporters and anyone who believes in the 1st Amendment is right to find this worrisome. But it's wrong to suggest that using a legal argument to get a warrant is the same as trying to charge Rosen with a crime. It's simply not the same.
The point that Shafer makes though is one that's been rattling around my head since I caught up on this story yesterday morning. Rosen may have been doing what national security reporters do as a matter of course. But I can practically guarantee you he went about it unlike most any national security reporter I know. I used to do a decent amount of national security reporting myself. And to protect your sources rather than yourself directly, there are basic things you do and don't do. One is you don't get into the details of exchanging classified information over the phone or over email.
Shafer says it better than I can ...
Rosen's journalistic technique, if the Post story is accurate, leaves much to be desired. He would have been less conspicuous had he walked into the State Department wearing a sandwich board lettered with his intentions to obtain classified information and then blasted an air horn to further alert authorities to his business. For example, one data point investigators used to connect Rosen with his alleged source, Kim, was the visitor's badge the reporter wore when calling on the State Department offices. According to security records, Rosen and his source left the building within one minute of each other and then returned only several minutes apart inside the half-hour. A few hours later that day (June 11, 2009), Rosen's secret-busting story was published.
Even teenagers practice better tradecraft than this when deceiving parents.
Shafer also notes the little noted fact that Rosen essentially burned a US intelligence asset (i.e., someone who was ratting out his country to the US) in a hostile foreign country, for no clear reason. It's doubtful that many other editors or publications would have published the piece at all.
As you can probably tell, I'm a bit conflicted about this whole episode. I've spent a decent amount of money over the last decade paying for pricey legal advice to keep myself and other TPM reporters out of trouble. So the issues raised here are ones I'm quite familiar with from personal experience and about which I've received a lot of professional advice. But the DOJ didn't indict anyone or seemingly make any effort to. They took a step I think they should not have taken. But they did so putting together a case against a government employee who more or less in plain sight (thanks to Rosen, in part) leaked what looks to have been highly classified information about US spy networks overseas. It's difficult for me not to be more shocked by the self-interested preening of fellow journalists over a comically inept reporter and source than the arguable dangers this episode holds for press freedoms. Indeed, I've tried and failed. I can't.