By Dan Kennedy • The press, politics, technology, culture and other passions

What “special protections” is Carr talking about?

David Carr

David Carr

There are a couple of problems with David Carr’s column in The New York Times on Glenn Greenwald and the line between journalism and activism.

First, Greenwald isn’t really a close call. He is an opinionated liberal columnist and blogger who works for a large, well-regarded news organization, The Guardian. The key: he’s independent. No advocacy group is paying his salary. If we must draw lines, Greenwald is well on the journalistic side of the divide.

What I really want to see more discussion of, though, is Carr’s assertion that “when it comes to divulging national secrets, the law grants journalists special protections that are afforded to no one else.” What is Carr talking about?

As I explained recently, the Espionage Act, under which Edward Snowden has been charged in the National Security Agency leaks, makes no distinction between leaking classified information and publishing classified information.

The question of whether to prosecute news organizations came up after the Pentagon Papers and again after the revelation of the Bush administration’s illegal wiretapping program. U.S. Rep. Peter King, R-N.Y., has called for journalists to be prosecuted over the Snowden leaks.

Yes, there are limited protections for journalists trying to shield their sources in 49 states. But I don’t think that’s what Carr was referring to. In any case, there are no shield protections at the federal level.

So help me out here. What do you think Carr has in mind?

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  1. Robert Novak published the name of a covert CIA operative in 2003, yet there was never any talk of prosecuting him for this. Why not?

    • Dan Kennedy

      @Steve: I know you keep asking this question in various forums. It’s an interesting one, but keep in mind that no journalist has actually been prosecuted for publishing leaks — at least not since the World War I era. It’s a danger because there’s nothing in the law to prevent it from happening, but so far it’s still a theoretical danger.

      • Most of the time I ask that question to point up hypocrisy like David Gregory’s. Here I’m asking it more in the context you (and Carr) put it in. My answer would be – it would raise a firestorm of bad press. There is seldom a prosecution for a journalist publishing secrets (Ellsberg was the closest I think), and if it was going to happen, I have a feeling Obama’s justice department would be the one to do it. But I don’t think that even they want to go there.

        But contra Snell below – I expect Carr to be the best informed around about this stuff. As I expect of you. When you two disagree, it is a puzzlement. I hope Carr weighs in here.

    • Ken Gornstein

      How many guesses do I get?

  2. Why do you assume Carr has anything in mind? It’s likely he is simply wrong or misinformed on this point.

    • Dan Kennedy

      @George: They don’t come any smarter than Carr. I suspect he’s been drinking the Kool-Aid that Times lawyer James Goodale has been ladling out for the past several decades.

  3. So far, most leaks do not seem to have compromised Americans’ actual security, or have posed any threat to U.S. troops abroad. Military and intelligence analysts have testified that nothing Bradley Manning revealed to WikiLeaks had done such “damage,” and, so far, there has been no compromise of our security from what Edward Snowden allegedly has done.

    But the leaks have EMBARRASSED our stupid, corrupt, criminal military bureaucrats, the incompetent diplomats such as Hillary Clinton, and so forth.

    That’s the bottom line. THAT is what Bradley Manning and Snowden are really guilty of.

    What really compromises our security is when our Rulers intentionally start wars of aggression against other countries, such as Iraq (1991 and 2003) and Afghanistan (2001), and impose sanctions and no-fly zones (Iraq throughout the 1990s), aggressions against other countries which had not posed any threat against us whatsoever. When you invade and occupy other people’s territories, they will retaliate. Duh.

    And the other thing that compromises our security is when our own government unconstitutionally and immorally searches us and porn-scans us at airports and at other means of travel, illegally spies on us, breaking into our “persons, houses, papers, and effects.”

    Thanks God for all the journalists, leakers and government whistleblowers for all they have done to let the American people know what the hell our Rulers have been up to.

  4. Tom Gagen

    In the Pentagon Papers case, the Supreme Court ruled that the U.S. government could not, by use of an injunction, prevent a news organization from publishing classified material. This decision grants news organizations great power from government control. They can publish stories about official secrets without fear that the courts will intervene to forbid publication of other secrets.

    Journalists, of course, are the people who write, blog, televise or other tell the stories about the secrets. The power given to news organizations accrues to them as well.

    Tom Gagen

    • Dan Kennedy

      @Tom: In the Pentagon Papers case, a majority of the Supreme Court invited the government to prosecute The New York Times and The Washington Post for violating the Espionage Act. The principle is that the bar for censorship is very high, but not nearly as high for holding the press legally accountable post-publication. In fact, the Nixon administration made some moves in that direction, though the effort was abandoned as Watergate came to occupy most of its attention.

      • This is interesting. Does this mean that charges might be appropriate, but be braced for the ‘firestorm’?

        My understanding of ‘espionage’ is that it benefits a specific nation state. Is it even possible to commit espionage on behalf of a religious philosophy?

        And one difference between Snowdon and Manning is that one is civilian and one is military. Military has its own laws, codes, etc., so one could be guilty under military code but not under civilian code with parallel acts.

        • Dan Kennedy

          @Cynthia: My understanding is that you can be charged with violating certain provisions of the Espionage Act without necessarily engaging in espionage per se.

  5. “Overall then, whether it be federal statutes or federal constitutional law, the debate over who qualifies as a “traditional journalist” does not matter as much as one might think, as many of the protections that reporters rely on could also be relied on by “activist” journalists.”

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