The revelation that Fox News reporter James Rosen (along with other Fox News employees) was not only extensively surveilled but identified by the administration as a lawbreaker (in an affidavit to obtain, among other things, his personal emails), an accessory to disclosure of national security secrets, came as a shock and blow to those in the media and otherwise on the left who still harbored the notion that President Obama respected civil liberties. What Rosen is accused of doing — using a code name and receiving information from a source — is nothing unusual; it is reporting. And now the great liberal icon (“no apologies” for his pursuit of leakers) is overseeing the criminalization of journalism.

Bob Woodward
Bob Woodward (Jim Watson/AFP/Getty Images)

But how can this be? Doesn’t it break some law?

I spent time yesterday discussing the issue with some top First Amendment lawyers. It reaffirmed an unsettling reality: Our Constitution does not provide protection against every imaginative abuse of authority; our system requires restraint and good faith by the executive branch. When it is absent, the essence of freedom is eroded.

The law on leaks starts with the vastly over-broad Espionage Act of 1917. First Amendment expert Floyd Abrams explained via email:

Let me put it this way. Justice Harlan, in his dissenting opinion in the Pentagon Papers Case, referred to the Espionage Act (adopted in 1918) as a “singularly opaque” statute and it has become no less so in the nearly 42 years since then. There were opinions on both sides of the first issue you raise in the Pentagon Papers Case—Justices Douglas and Black answering “no” because of the absence of the word “publishing” in Section 793 of the Espionage Act and other legislative history and Justices White and Stewart (and perhaps more justices) indicating that publication by the Times and Post could have been illegal and constitutionally so at that.

Abrams continued that we also lack a firm understanding of what state of mind would be required (“mens rea”) to prosecute a journalist. He asked, “Would the US have to prove that the journalist intended to harm the US or to help a foreign nation?”

We don’t know what the ambit of the Espionage Act is, as Benjamin Wittes of the Brookings Institution told me, because “no administration has ever attempted to use it so aggressively.” And that is what is striking here. Not since 1917 has any president, Democrat or Republican, tried to criminalize reporting.

A third constitutional expert who spoke only on background opined that there are also later criminal statutes that may be relevant, at least one of which makes it a crime to knowingly publish classified signals intelligence. That, however, doesn’t seem relevant here. And yet again, the government has never attempted to use such legislation to prosecute members of the media.

If not in statute, then, is there some constitutional protection here? Abrams isn’t so sure. Neither is Wittes, who tells me: “I think most (sane) observers agree that there is some First Amendment limitation in the Espionage Act as written. There is no general agreement on where that line lies, however.” Again, since all presidents until this one exercised restraint and respected the realm of the free press, the issue hasn’t been tested.

What should really set civil libertarians and journalists teeth on edge is the notion that the government could bypass all these hard questions by designating members of the press as “accessories.” Wittes argues, “It’s very aggressive. I don’t think we know the limits of what is permissible here. For what it’s worth, I would be stunned if they brought such a case — rather than simply supporting a warrant application.” He adds, “But even what they [have] done is much more aggressive than I would have expected.”

Abrams was emphatic: “The accessory theory is a radical one and one deeply threatening to First Amendment rights. Law in this area has treated a government source as having a far greater and more enforceable duty than any third party.” He says, “It is this theory that would imperil reporting about national security issues far more gravely than anything this Administration (or any recent one) has even hinted at.”

And so we — the country, the media, the legal community — are in a place that we’ve never been. This is what comes from an administration that shows contempt (literally in some cases) for Congress, disdains the media and puts critics in the class of enemies. What was thought to be beyond reasonable standards for a president and the province of crack- pot conspiracy theorists no longer is; virtually anything is justifiable in service of the administration’s ends, according to this president. The arrogance of power, fueled by yes-men and -women convinced of their own virtue, leads to very scary results.

Congress can pass laws restricting such conduct, recognizing that this president requires special restraint. But the real remedy is in the court of public opinion and at the ballot box. Is this the sort of administration we want to indulge? If not, the media and the citizenry need to speak up. Loudly.

 

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.