June 23, 2013

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On Sunday’s “Meet the Press,” NBC News host David Gregory conducted an informative and provocative interview with Glenn Greenwald, the Guardian journalist who has broken much of the recent material on National Security Agency (NSA) surveillance. Gregory pushed Greenwald for details on where his source, former NSA contractor Edward Snowden, was headed; on secrecy and accountability; on whether Snowden had broken the law. And, finally, on whether Greenwald himself had broken the law:

GREGORY: Final question for you…. To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?

Greenwald blasted away:

GREENWALD: I think it’s pretty extraordinary that anybody who would call themselves a journalist would publicly muse about whether or not other journalists should be charged with felonies. The assumption in your question, David, is completely without evidence, the idea that I’ve aided and abetted him in any way. The scandal that arose in Washington before our stories began was about the fact that the Obama administration is trying to criminalize investigative journalism by going through the e-mails and phone records of AP reporters, accusing a Fox News journalist of the theory that you just embraced, being a co-conspirator in felonies, for working with sources.

If you want to embrace that theory, it means that every investigative journalist in the United States who works with their sources, who receives classified information, is a criminal. And it’s precisely those theories and precisely that climate that has become so menacing in the United States. It’s why The New Yorker’s Jane Mayer said, “Investigative reporting has come to a standstill,” her word, as a result of the theories that you just referenced.

GREGORY: Well, the question of who’s a journalist may be up to a debate with regards to what you’re doing. And of course anybody who’s watching this understands I was asking a question; that question has been raised by lawmakers, as well. I’m not embracing anything. But obviously, I take your point.

The back and forth continued later, as Greenwald tweeted:

And Gregory rejoined on the program:

I want to acknowledge there is a debate on Twitter that goes on online about this, even as we’re speaking. And here’s what Greenwald has tweeted after his appearance this morning: “Who needs the government to try to criminalize journalism when you have David Gregory to do it?” And I want to directly take that on.

Because this is the problem from somebody who claims that he’s a journalist, who would object to a journalist raising questions, which is not actually embracing any particular point of view. And that’s part of the tactics of the debate here when, in fact, lawmakers have questioned him. There’s a question about his role in this, The Guardian’s role in all of this. It is actually part of the debate, rather than going after the questioner, he could take on the issues. And he had an opportunity to do that here on Meet the Press.

David Gregory’s logic has a cursory appeal. Why wouldn’t Greenwald have the courage to take on the issues swirling around his reporting? Shouldn’t a Sunday talk show host have the latitude to pose tough questions to another journalist?

Of course. Too bad, however, Gregory didn’t do that. Rather, he seeded his question with a veiled accusation of federal criminal wrongdoing, very much in the tradition of “how long have you been beating your wife.” To repeat the question: “To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?”

Bolded text added to highlight a clause loaded with assumption, accusation, baselessness and recklessness. A simple substitution exercise reveals the tautological idiocy of the query: “To the extent that you have murdered your neighbor, why shouldn’t you, Mr. Greenwald, be charged with a crime?”

Now, about the notion that “debate” over the actions of Greenwald and the Guardian. To the extent such debate exists, it came into this world off the lips of Rep. Peter King (R-N.Y.) in an interview on Fox News. Here’s what King said:

Not only did he disclose this information, he has said that he has the names of CIA agents and assets around the world, and they’re threatening to disclose that. The last time that was done in this country, you saw a CIA station chief murdered in Greece. No right is absolute. And even the press has certain restrictions. I think it should be very targeted, very selective and certainly a very rare exception. But in this case, when you have someone who has disclosed secrets like this and threatens to release more, then to me, yes, there has to be — legal action should be taken against him. This is a very unusual case with life-and-death implications for Americans.

That bit about Greenwald threatening to release CIA identities? Never happened. So that’s the factual footing of the “debate” that Gregory is referencing.

A more direct question may have served Gregory better: “Mr. Greenwald, have you done anything to aid or abet Snowden in these past few weeks?” Or: “Peter King has called for your prosecution. You say?”

Nor did Gregory appear to understand the legal intricacies into which he was wading. In the seminal 2001 case Bartnicki v. Vopper, the Supreme Court considered a set of circumstances in which a media outlet had published a private conversation that had been illegally recorded. Since the news organization hadn’t participated in the illegal recording — it merely received it — and since the conversation was of great public consequence, the court ruled that its publication was protected by the First Amendment.

So there’s the standard: If the media outlet doesn’t participate in illegal conduct and the material at hand is of public import, it’s protected. Clay Calvert, a University of Florida professor and an authority (who is often quoted on the Erik Wemple Blog), notes:

As long as Greenwald lawfully obtained the information from Snowden, meaning Greenwald didn’t aid or abet Snowden in obtaining it or ask him to break the law, the government would need to prove it had a compelling interest to punish Greenwald. There is no doubt the information is truthful and of public concern – the other parts of Bartnicki. A case against Greenwald would certainly hinge on whether the government has an overriding interest. It would be quite a battle.

The entire question of Greenwald’s “aiding and abetting,” furthermore, collapses when considering what it would entail. Snowden was a contractor for the National Security Agency. Over his years of work in intelligence, he developed an exquisite understanding of the government’s eavesdropping activities. Plus, he had passcodes and access privileges that came with his position.

Just how was Glenn Greenwald, a journalist, going to help Snowden in extracting files from the NSA? Greenwald is steeped on issues of privacy law, he’s good on Twitter and appears to understand the Web, but really — any suggestion that he aided and abetted a intelligence veretan-cum-computer wiz perhaps accords him a bit too much credit.

Read more: Greenwald interview — Beltway media are “courtiers to power”

Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.