While experts in media law say the stolen-goods theory has a questionable legal basis, the idea was floated on Tuesday by Rep. Mike Rogers (R-Mich.), chairman of the House Intelligence Committee, and Director of National Intelligence James R. Clapper Jr., both critics of Snowden.
In an exchange with FBI Director James B. Comey, who was a witness in a hearing about “Worldwide Threats,” Rogers pushed Comey about whether selling “access” to classified material to newspapers or another publication amounts to “fencing stolen material” and should be prosecuted.
Comey said that selling stolen goods, such as jewelry, is indeed a crime. But he stopped short of saying it would be a crime if it involved selling a story.
That answer didn’t deter Rogers, who drilled in. Without mentioning Greenwald or Gellman by name, he asked Comey, “So if I’m a newspaper reporter for — fill in the blank — and I sell stolen material, is that legal because I’m a newspaper reporter?”
Comey, a former No. 2 at the Justice Department, replied that this was “a harder question” because the First Amendment might protect reporters and publishers. He demurred, saying Rogers should ask the Justice Department.
Rogers obliquely referred to the reporters working with Snowden as “accomplices” — the same word Clapper used in separate testimony on Tuesday and last week during a Senate hearing in which he called on Snowden and those possessing NSA documents to return them.
In interviews Tuesday, Greenwald, a journalist and lawyer, and Martin Baron, the editor of The Post, both said Rogers and Clapper’s characterizations “criminalize” the act of being a journalist. By extension, said Greenwald, their comments implicate any news organization that publishes or broadcasts information based on NSA documents.
“You have to be concerned when a member of Congress is framing the issue this way,” said Baron. “It leaves the suggestion that legitimate news reporting is tantamount to a criminal act. It’s not and shouldn’t be characterized that way.”
Despite many prosecutions involving the leak of classified material, no journalist or news organization has ever been tried on a “stolen goods” theory, said Lucy Dalglish, the former executive director of the Reporters Committee for Freedom of the Press, which monitors First Amendment issues.
The closest parallel was the espionage scandal involving a former Defense Department employee, Lawrence Franklin, who passed classified documents regarding U.S. policy toward Iran and Israel to two employees of the American Israel Public Affairs Committee. The employees, Steven Rosen and Keith Weissman, were later indicted on charges of conspiracy to disclose classified information, but the case against them was dismissed in 2009.
The case is analogous to news reporting because Rosen and Weissman were merely middle men in the dissemination of classified documents, much as journalists are, said Dalglish, who is now dean of the University of Maryland’s journalism school.
Nevertheless, Greenwald said Rogers and Clapper were “trying to mainstream the idea that journalists can be intimidated. This is a very concerted effort on the part of the government to create a climate where [journalists] constantly feel threatened and where at any moment the power of the state will be brought down on you.” He added, “I will continue being super-aggressive in my reporting.”
In October, the head of the National Security Agency, Gen. Keith B. Alexander, called on journalists to stop “selling” NSA documents, although he stopped short of saying that doing so was a criminal act.