June 25, 2013

Obama (left) and Holder
(Pablo Martinez Monsivais / The Associated Press)

Rep. Peter King (R-N.Y.) kicked things off on June 12, when he said the following in regard to Glenn Greenwald of the Guardian: “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.”

On Sunday, David Gregory of NBC News posed a steeply premised question to Greenwald: “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?”

Andrew Ross Sorkin of CNBC’s “Squawk Box” yesterday endorsed the prosecution of National Security Agency leaker Edward Snowden and then some: “I would arrest [Snowden] and now I’d almost arrest Glenn Greenwald, the journalist who seems to be out there, he wants to help him get to Ecuador.”

Fox News commentator Erick Erickson also lent his expertise to the matter:

 

 

All this chatter about Greenwald furnishes an outstanding tribute to the First Amendment. Any good media lawyer will tell you that speculating on the criminal wrongdoing of some guy skirts dicey libel terrain. Greenwald’s numerous TV appearances have likely elevated him to the status of public figure, giving media types license to engage in often ill-informed speculation on his actions. Herewith a guide to the baselessness of such speculation.

To detail the basics, former NSA contractor Snowden, Greenwald’s source, stands charged with “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person.” Both charges stem from the Espionage Act of 1917. (Snowden was also charged with theft of government property).

The Espionage Act has a fascinating history whose early chapters scandalize present-day sensibilities about what can and cannot be said in the public square. As Anthony Lewis documented in his book “Freedom for the Thought that We Hate: A Biography of the First Amendment,” “Hundreds of people were prosecuted under the act for merely speaking or writing critically. The most innocuous criticism of government or discussions of pacifism were found to violate the Espionage Act; judges told juries to convict if they found a defendant’s words ‘disloyal.’” Among the act’s victims was Socialist Party leader Eugene V. Debs, who, according to Lewis’s account, had started a speech in Canton, Ohio, by “telling the audience that he had just visited three men who were in jail nearby for aiding another man in failing to register for the draft.” Debs protested that the men were suffering for “seeking to pave the way to better conditions for mankind.”

For that, Debs received a 10-year prison sentence. (He was released after three years).

Rather than deploy the Espionage Act to punish run-of-the-mill political vituperation, the Obama administration has leaned on the statute to go after leaks of government secrets. Six of the nine leak* indictments in the history of this act are the work of the Obama administration. (*Word added post-publication)

As described previously in this space, those leak investigations have focused on everything from surveillance of Israeli diplomats to the disclosure of the name of a covert operative.

In each of those prosecutions, the Justice Department pursued charges against the leakers — not against the people or news organizations to which they leaked. And there’s a reason for such forbearance.

In 2005, the Justice Department brought charges under the Espionage Act against Steven J. Rosen and Keith Weissman, two lobbyists for the American Israel Public Affairs Committee (AIPAC). These two men had learned of classified information from a government official and passed it along, in classic influence-peddling fashion, to colleagues and diplomats and journalists. Prosecutors dropped the case in 2009.

Why’d they do that?

At least in part because the U.S. District Court Judge T.S. Ellis III, in an August 2006 opinion, laid out the government’s burden of proof vis-a-vis the two men accused of passing along classified information. Consider Rosen and Weissman as stand-ins for a media organization, since they were charged for passing along information from a government source. Ellis noted that the Espionage Act requires proof that a defendant acted “willfully” in carrying out “prohibited conduct.” In the words of the judge:

Thus, the government in this case must prove beyond a reasonable doubt that the defendants knew the information was [national defense information], i.e., that the information was closely held by the United States and that disclosure of this information might potentially harm the United States, and that the persons to whom the defendants communicated the information were not entitled under the classification regulations to receive the information. Further, the government must prove beyond a reasonable doubt that the defendants communicated the information they had received from their government sources with “a bad purpose either to disobey or to disregard the law.”

Just what does that mean? Attorney Jeffrey J. Pyle, a partner in the Boston-based firm Prince Lobel Tye LLP, takes a whack at that question in this post on Greenwald’s exposure:

To prove that Greenwald acted willfully, the government would have to demonstrate beyond a reasonable doubt that he acted “with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.” Bryan v. United States, 524 U.S. 184, 191-92 (1998). For all we can see, Greenwald acted in the time-honored tradition of investigative reporting. It would be next to impossible for the government to prove that he knew his conduct was unlawful.

Hold on: Greenwald clearly knew that the information from Snowden was classified and closely held by the government. So why wouldn’t he have known quite well that his conduct was unlawful? That’s an easy one, according to Pyle. Decades of U.S. history tell us that the government has leaked all manner of classified information to journalists — it’s a commonplace occurrence around these parts. Yet journalists haven’t been prosecuted for publishing that information. When was the last time Bob Woodward faced indictment?

To slam-dunk the situation, consider that around the same time that Greenwald dropped his first NSA scoop, Attorney General Eric Holder said this: “[T]he [Justice] Department has not prosecuted, and for as long as I’m attorney general of the United States, will not prosecute any reporter for doing his or her job.”

Let’s have another look at that tweet from Erickson:

 

The implication here is that, somehow, Snowden and Greenwald are peas in a First Amendment pod. They are not. As the Ellis opinion in the AIPAC case makes clear, there are two distinct classes in a case like this:

The first class consists of persons who have access to the information by virtue of their official position. These people are most often government employees or military personnel with access to classified information, or defense contractors with access to classified information, and are often bound by contractual agreements whereby they agree not to disclose classified information. As such, they are in a position of trust with the government. The second class of persons are those who have no employment or contractual relationship with the government, and therefore have not exploited a relationship of trust to obtain the national defense information they are charged with disclosing, but instead generally obtained the information from one who has violated such a trust.

This “first class” — e.g., a guy like Snowden — enjoys little First Amendment protection for releasing classified information. Protecting that information, after all, is written into their employment terms. On the other hand, the “second class” — e.g., a guy like Greenwald and the Guardian — enjoys considerable First Amendment protection for passing along such information. And for great reason, too: Call it the “welcome debate” clause. Exposing the breadth of the government’s official snooping powers, for example, is a matter of extreme public importance, vague protestations by some officials to the contrary notwithstanding. In a superb analysis of the Espionage Act, Shaina Jones and Jay Ward Brown write that news organizations proceed in publishing classified information with the intent “to inform the public of matters pertinent to self-government, not to violate the statute or to injure the government — a characterization of intent that courts have accepted in analogous circumstances.”

Greenwald and the Guardian didn’t reveal troop movements or the identities of CIA agents — the sort of revelations that would justify overriding their First Amendment rights. They revealed information about government programs. Programs! Only in a true surveillance state would shedding light on programs! be considered a five-alarm national security threat.

As Pyle notes, generations of judicial precedents have established that the “publication of truthful information is protected by the First Amendment.”

Reading through the opinions and scholarly work on the Espionage Act reveals how carefully this country’s finest legal minds have sought to protect press freedoms vis-a-vis our precious national security interests. Stunning to behold how carelessly some commentators would trample it all.

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