Journalists nationwide were miffed on Wednesday after New York Congressman and Super Mario Bros. Mini-boss Peter King explicitly called on the Department of Justice to go after Guardian columnist Glenn Greenwald for publishing classified documents revealing how much the NSA has been spying on all of us. This is almost certainly not going to happen, and would be a huge injustice if it did. But it got us wondering: Since the Obama Administration is clamping down on leaks with the dangerous zeal of a snapping turtle latching onto a toddler's pinky at a petting zoo, what is the best way for enterprising journalists to reveal important classified information to the world without being caught up in a nasty espionage investigation?
Know the Law
The first thing to understand is that the Administration's War On Leaks has been pursued under an expansive reading of the poorly written Espionage Act of 1917, which makes it illegal to leak "defense information" with the intent of harming the U.S. or aiding it enemies. (Back in 1917, it was probably leaking by... steam engine?)
Obama has charged six people who leaked classified information to the media under the law, more than all others presidents combined. The biggest possible liability for journalists would probably be a conspiracy charge under the Espionage Act. This was driven home in the case of Fox News reporter James Rosen, who was labled and treated like "an aider, an abettor, and/or co-conspirator" during an investigation into a leak of North Korean intelligence, basically for doing an especially good job at grooming a source inside the State Department. (He was never charged with a crime, and Attorney General Eric Holder later said that was never the plan.)
Don't Worry About It
But even with the War On Leaks in full swing, one veteran national security reporter I spoke to told me he doesn't worry about possible legal fallout while reporting on classified stories, and with good reason: No journalist has ever been charged under the Espionage Act, and it doesn't seem like they will soon. Even the Obama Administration's Department of Justice almost certainly won't risk the political furor of prosecuting a journalist under the Espionage Act, said Columbia Law School Professor David Pozen, who specializes in government leaks. Pozen told me there is a strong and long-standing notion in D.C. that journalists should be protected under the 1st Amendment, even when it comes to leaks.
"The legal risk to Greenwald seems minimal to me," Pozen said. "[Peter] King's statement seems to me an old trope that surfaces on all these controversies. It never goes there." Instead, Pozen said, it's the government sources who leak to journalists are really at risk.
Don't Brag About Classified Information
Still, the national security reporter said that it's probably a good idea to keep any classified information safely in your pocket unless it's absolutely necessary. He suggested that Rosen unnecessarily put himself in the DOJ's crosshairs by reporting the fact that the CIA had learned of a possible North Korean nuclear test from a CIA source inside North Korea, even though the CIA source bit wasn't central to the story. Fred Kaplan, in Slate, also criticized Rosen's choice to reveal the CIA source:
He could have written his story without revealing that nugget about the inside source. The story might have been a little less compelling; his audience might have wondered how he or his official contacts knew that a test was coming. But the U.S. government might also still have a decent intelligence source inside North Korea.
Don't Pay for Secrets
Probably the one really explicit bit of advice is: Don't try to buy classified documents as if they were so many videos of Canadian mayors smoking crack cocaine. Pozen told me some Constitutional scholars hypothesize that First Amendment protections would not suffice if journalists went beyond a typical journalist-source relationship. "A situation where it came out that a journalist enticed an otherwise unwilling source to reveal information—that might be a legally difficult one," he said. When I asked national security attorney Bradley Moss for his advice to journalists dealing with classified information, it was simple: "Don't offer money."
Documents Are More Dangerous Than Words
Moss also suggested that classified documents could probably get you in trouble more than classified gossip. As of 2009, there had only been one espionage case in history in which private citizens were prosecuted for alleged spying that didn't involve documents, according to the New York Times. That was the the case of Steven J. Rosen and Keith Weissman, two lobbyists for the American Israel Public Affairs Committee (AIPAC) charged in 2004 with leaking government secrets to journalists and Israeli diplomats. They'd learned the information in conversations with U.S. officials then passed it along, in their role as lobbyists. The case fell apart in 2009, after it became clear that sending them to jail would basically criminalize all of D.C.
Don't Be a Megalomaniacal Albino Australian Hacker
There have been some reports that Wikileaks founder Julian Assange has been secretly indicted or targeted under the Espionage Act by a grand jury convened to investigate Bradley Manning's massive document dump. These are unconfirmed, but, according to Pozen, if he was charged it might be under the (wrong) idea that Wikileaks was not practicing journalism in its State Department cable leaks. "The government may have looked at: Is he a member of the media? I think there's some sense [in the government] that he may not qualify and then he wouldn't receive as much protection under the 1st Amendment," Pozen said. Greenwald is less likely to be the first journalist charged under the Espionage Act, because he works for a respected news agency.
[Photo via Getty; Image by Jim Cooke]