This article first appeared in the St. Louis Beacon, June 3, 2013 - National security reporting exists in a legal world just as murky as the intelligence community it covers. It a world of uncertainty with conflicting constitutional interests, laws, customs and policies.
The government has a legitimate interest in protecting intelligence secrets by prosecuting government employees who violate their legal pledge to keep classified information secret.
At the same time, the press has a legitimate interest in seeking to publish national security information, especially when the government may have acted improperly. The Pentagon Papers and the disclosure of President George W. Bush’s legally questionable warrantless wiretaps in 2005 are two examples.
So, in general, the leakers can be prosecuted, but the journalists are not. Of course, in trying to catch the leakers, prosecutors often collect information from the journalists. That’s what prosecutors did in both the AP and James Rosen leak stories.
When federal prosecutors are trying to obtain phone or travel records from journalists, they must abide by Attorney General Elliot Richardson’s 1973 guidelines to protect journalists from government overreaching.
Those guidelines put news organizations in a preferred position as compared to others who might have evidence of criminal wrongdoing – although readers might not have gotten that idea from recent press reports.
The guidelines require prosecutors to:
- Get approval of the attorney general before subpoenaing records,
- Try to identify the leaker using other methods first and,
- Try to negotiate with the news organization for the information, unless telling the news organization would jeopardize the investigation.
The Justice Department says it abided by the Richardson guidelines in the AP subpoena case by interviewing 500 persons and reviewing tens of thousands of documents before seeking the phone records of 100 AP journalists. Prosecutors did not try to negotiate with AP for the information because they thought that would blow the investigation.
Another custom of national security reporting is that news organizations, such as the New York Times and the Washington Post, talk to government officials before publishing secrets and will sometimes withhold ones that are especially sensitive. Most news organizations don’t publish information that discloses intelligence agents, sources or methods or U.S. troop movements.
That is one murky element of both the AP and Rosen episodes. The government maintains that the AP story exposed the existence of a double agent possibly preventing the agent from locating the master al-Qaida bomb maker. And the government says Rosen’s story suggested that a high-level intelligence source was talking to the West about North Korea’s ambitions. So both stories arguably blew the cover of highly valuable intelligence resources.
No reporter ever has been prosecuted under the century-old Espionage Act for disclosing top secret information, even though the wording of the law is broad enough to seem to justify such a prosecution.
In the Pentagon Papers case the Supreme Court ruled that the government couldn’t stop the printing of stories about government secrets – absent an imminent threat to national security. But several justices commented that the government could have prosecuted the journalists under the Espionage Act.
The most legally questionable practice for a journalist is to request particular top secret information from a source. That could theoretically make the reporter a criminal co-conspirator. James Rosen’s practice of seeking specific memos and intelligence estimates is on the edge of this gray area, one of the reasons the prosecutors viewed him as possibly criminal liable himself.
In a seminal work four decades ago, two noted legal scholars, Harold Edgar and Benno Schmidt of Columbia Law School, wrote that the nation had lived in a state of “benign indeterminacy about the rules of law governing defense secrets” ever since World War I. Journalists generally benefited from the uncertainties, they said. New laws setting hard boundaries could be worse for journalists than living with uncertainty, they added.