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?
Edward Jay Epstein has written an innuendo-laden column for The Wall Street Journal in which he strongly insinuates that filmmaker Laura Poitras and/or journalist/blogger/lawyer Glenn Greenwald of The Guardian criminally assisted Edward Snowden in leaking National Security Agency documents.
Epstein’s toxic brew of archly worded questions leads to the inescapable conclusion that he believes the two journalists ought to be investigated and possibly charged under the World War I-era Espionage Act.
The First Amendment and press freedom questions that haunt the Espionage Act are particularly important right now. Changes in media and technology have put the tools of journalism and media making in the hands of more and more people, challenging old assumptions about who is a journalist and how journalism is done. Increasingly, independent journalists, nonprofit news outlets and citizens are playing critical roles in newsgathering and reporting on the most important issues of our time.
I don’t think Stearns gives sufficient weight to the idea that merely publishing leaked documents is, in fact, a violation of the law, and that investigative journalism depends on the hopeful notion that the government won’t use its authority. Otherwise, though, it’s a useful guide to the issues at stake.
More: Greenwald responds to the Epstein column in this Storify involving (mainly) Jeff Jarvis and Michael Wolff.
The editors of The New York Times appear to have forgotten an important principle: the First Amendment is for all of us, and does not grant any special privileges to the institutional press. Thus if Edward Snowden is prosecuted for leaking classified documents about the National Security Agency’s secret surveillance programs, the news organizations that published those documents could face criminal charges as well.
The possibility that journalists could be in legal jeopardy for doing their jobs seems not to have occurred to whoever wrote an editorial in today’s Times, which argues that Snowden should be prepared to pay the price for civil disobedience by way of his leaks to The Guardian and The Washington Post.
Though the editorial dismisses the absurd notion that Snowden has committed treason, it concludes with this observation, which comes across as semi-sympathetic but contains toxic implications: “Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.”
In fact, if Snowden, as seems likely, is charged under the Espionage Act of 1917, there is nothing to stop the government from going after The Washington Post as well — or The Guardian, if someone would like to seek extradition of Glenn Greenwald, who broke the story, and his editor, Alan Rusbridger.
American journalists in these situations operate on the premise that they are free to publish information even if the source or sources who gave it to them violated the law in obtaining it. That’s largely true — First Amendment protections against censorship are extraordinarily high. The corollary, though, is that there may be consequences to be paid post-publication.
The best-known example is the Pentagon Papers, a case that should be near and dear to the hearts of Times editors. In a 6-3 decision, the U.S. Supreme Court ruled that the Times and the Post could not be prevented from publishing the government’s secret history of the Vietnam War.
But as civil-liberties lawyer Harvey Silverglate pointed out in a 2006 article for The Boston Phoenix, five of the nine justices essentially invited the government to file charges against the Times and the Post after publication — and the Nixon administration was preparing to do just that before it got caught up in the burgeoning Watergate scandal.
Silverglate was concerned that the Times faced possible charges under the Espionage Act for revealing the existence of the Bush administration’s warrantless wiretapping program. Even though the program illegally circumvented the Foreign Intelligence Surveillance Court, then-president George W. Bush called the Times’ reporting “a shameful act” — and Gabriel Schoenfeld, writing in Commentary, was just one on the neocon right who argued that the Times should be prosecuted.
More recently, the Times published many of the WikiLeaks documents exposed by Bradley Manning, who is now on trial and who may face a life sentence. And in 2010 John Cook posted a short piece in Gawker making the commonsense observation that the Times‘ potential liability was precisely the same as that of WikiLeaks founder Julian Assange, who had been targeted by Attorney General Eric Holder. Cook wrote:
So if it was a crime when Assange obtained the database, why wasn’t it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It’s a crime to “obtain [it] from any person, or from any source whatever.” Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act.
This is a moment of great peril for journalism. With 56 percent of Americans saying they don’t mind if the government monitors their phone records, public opinion is hardly on the side of whistleblowers and the news organizations that work with them.
Whether we approve of everything Edward Snowden did or not, The New York Times and others in our craft ought to show more solidarity. If he is in trouble, so are all of us.
As we all express our outrage over the Verizon snooping, as we should, let’s remember: President Obama did this legally, following a provision of the Patriot Act that, as a senator, he voted for, and that Hillary Clinton, among others, opposed.
For years, politicians who voted against such things were demagogued as soft on terror. When The New York Times exposed George W. Bush’s illegal secret wiretapping, Bush called the story “shameful,” and some (including then-attorney general John Ashcroft) called for the Times to be prosecuted under the Espionage Act.
Kudos to David Carr of the New York Times for shining a light on an issue that doesn’t attract nearly the attention that it should: the Obama administration’s abuse of the Espionage Act, which in turn has led to a virtual war on journalism and free expression.
As Carr notes, the Espionage Act, approved in 1917 during the hysteria of World War I, was used three times before President Obama took office in 2009 — and six times during his presidency.
We live in a dangerous era, and there have been prosecutions with which it may be hard to disagree. Carr cites the case of Bradley Manning, who’s been charged with stealing national-security documents that are at the heart of the WikiLeaks disclosures.
But Carr also writes that leak prosecutions often seem to be aimed more at punishing people for embarrassing the government than for genuinely damaging national security. In a particularly ironic case, a former CIA officer named John Kiriakou has been charged with leaking the names of agents involved in interrogating terrorism suspects. Carr points out that “none of the individuals who engaged in or authorized the waterboarding of terror suspects have been prosecuted.”
Kudos, too, to Jake Tapper of ABC News, whose confrontation with White House press secretary Jay Carney is the hook Carr uses to delve into the issue. A fuller account of Tapper and Carney’s exchange can be found here. Here’s Tapper responding to Carney’s praise for the journalist Marie Colvin, killed in Syria last week:
How does that square with the fact that this administration has been so aggressively trying to stop aggressive journalism in the United States by using the Espionage Act to take whistleblowers to court? You’re — currently I think that you’ve invoked it the sixth time, and before the Obama administration, it had only been used three times in history. You’re — this is the sixth time you’re suing a CIA officer for allegedly providing information in 2009 about CIA torture. Certainly that’s something that’s in the public interest of the United States. The administration is taking this person to court. There just seems to be disconnect here. You want aggressive journalism abroad; you just don’t want it in the United States.
I suspect Obama and Attorney General Eric Holder have gotten a pass from many liberals because they believe a Republican president would be even worse on such matters. The fact is, though, that no president has been more aggressive than Obama in prosecuting suspected leakers.
And given the way the media work, it’s no surprise that they’ve said little, since the heart of what they do is respond to accusations. The storyline being promoted by Mitt Romney, Rick Santorum and Newt Gingrich is that Obama is weak on national security, so they’re certainly not going to criticize the president for being too tough on leakers. Thus, no story.
When the government wants to take suspected leakers to court, it inevitably demands that journalists reveal their confidential sources. There is no constitutionally recognized right for journalists to protect their sources, and no federal shield law, which means that such cases have a considerable chilling effect on tough reporting.
In 2006, “Frontline” interviewed Mark Corallo, who was director of public affairs for George W. Bush’s first attorney general, John Ashcroft. In this transcript, you’ll see that Corallo, with the support of Ashcroft — not generally thought of as a friend of the First Amendment — approved only one subpoena for a journalist out of “dozens” that were requested. Corallo continued:
I can’t tell you about that case. It was a national-security case. I believed, after long reflection, that it did put innocent people’s lives in danger, our allies, people in other countries who would be subject to terrorist attacks. The case was so egregious; it was such a horrible instance of unethical behavior by a journalist to boot.
I hope Tapper’s tough questioning and Carr’s column are the beginning of a genuine attempt to hold the Obama White House to account for its repressive policies.