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May 24, 2013


It would seem that the left hand has no idea what the left hand is doing:

Attorney General Eric Holder signed off on a controversial search warrant that identified Fox News reporter James Rosen as a “possible co-conspirator” in violations of the Espionage Act and authorized seizure of his private emails, a law enforcement official told NBC News on Thursday.

The disclosure of the attorney general’s role came as President Barack Obama, in a major speech on his counterterrorism policy, said Holder had agreed to review Justice Department guidelines governing investigations that involve journalists.

How gracious of him. Maybe the DoJ should follow the DoD's brilliant strategy: when you find out that the people charged with making sure subordinates know/follow the rules aren't following the rules themselves....

...clearly the answer is, "more training". Or an investigation, followed by more training, because nothing succeeds a public lack of resolve, followed by doubling down on failure. That said, we're not sure we agree with the President here:

"I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable," Obama said. "Journalists should not be at legal risk for doing their jobs."

This foolishness seems to be everywhere we look these days. "They're criminalizing ordinary reporting!" Well, not quite. This is only true if we define "ordinary reporting" as pressuring government employees to violate the law (as well as the express conditions of their employment):

1. To begin with, let me define the problem, and define it broadly: A wide range of laws that bars certain people from revealing certain information that they themselves learned in confidence, having given a promise of confidentiality. To give just a few examples,

Federal law (18 U.S.C. § 793) does this (among other things) for secret defense information.
Federal law does it for confidential income tax information, and many other matters.
Trade secret law does it for certain kinds of business information (some trade secret claims are civil and some are criminal, but this doesn’t matter for First Amendment purposes).
Nondisclosure agreements do the same for other kinds.
Professional regulations and related statutes do this for attorney-client, psychotherapist-patient, and doctor-patient confidences.
Court orders do this for information gathered through discovery in legal cases.

Relatedly, federal law bars people from electronic eavesdropping on cell phone calls, and also prohibits the illegal eavesdroppers from communicating this information to others. This isn’t exactly the same, because the original misconduct here consists not of illegally leaking information to which one has legal access, but illegally accessing the information in the first place. Still, downstream publication of illegally leaked information and publication of illegally accessed information are quite similar in many ways — they all involve information that by law ought not be communicatable, that the original leaker (or illegal gatherer) has no right to communicate, but that he does communicate to third parties who did not themselves illegally leak or illegally gather the information.

2. These laws are generally seen as constitutional, mostly on the theory that they enforce promises of confidentiality, express or implied, that were legitimately extracted as a condition of access to the information (see Cohen v. Cowles Media (1991) and Seattle Times Co v. Rhinehart (1984)), or, in the case of the cell phone interception law, that the underlying acquisition of the information was illegal. That’s an oversimplification, but it’s a reasonable first approximation.

And in any event, I think it’s pretty clear that it’s constitutional to outlaw leaks of government information by those who have promised to keep it secret. I know there are arguments that the government classifies too much information as secret. But for the government to be trusted, whether by taxpayers, sources of information, foreign governments, or other government employees, it has to be able to punish those government employees who promised to keep a secret (whether a tax return or a defense-related document) but then broke that promise.

3. But what about people who never promised confidentiality, and who just receive — without soliciting or prearranging this — information that they know was illegally leaked (or illegally gathered)? Say you’re a reporter, and you get an unsolicited e-mail revealing something important gleaned from a prominent person’s tax return, a copy of an important secret government document, a business plan to create a controversial product or close a plant or engage in a particular marketing strategy, or a tape of an illegal intercepted conversation in which union members are discussing what sounds like a possible plan to engage in violent crime against management. (“If they’re not gonna move for three percent, we’re gonna have to go to their, their homes .... To blow off their front porches, we’ll have to do some work on some of those guys. Really, uh, really and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE).”) May the law bar even such disclosures by downstream recipients, who never promised confidentiality, never themselves engaged in illegal interception of information, and never solicited the breach of a confidence or illegal interception, or conspired in such an action?

There, the matter is not entirely clear. Bartnicki v. Vopper (2001), the illegal interception case from which the quote above is drawn, holds that revelation of the information by these downstream recipients would be protected by the First Amendment, at least if the released information is important enough and if the initial illegality consisted of illegal interception of cell phone calls. But United States v. Rosen (D.D.C. 2006) holds otherwise as to revelation by downstream recipients of classified defense information. Still, there are very serious First Amendment arguments in favor of protecting such further disclosures by these sorts of downstream recipients.

4. There is, though, an intermediate category of speakers. Part of it consists of those who actively solicit criminal or tortious leaks or information gathering, knowing that what they are seeking is information that the leaker has no right to reveal or to gather. “Could you send me this classified document / tax return / secret about your client? I’ll write a story about it that will promote truth and justice / help advance your ideological agenda / get back at your enemies / make you feel important.” “You know, if you illegally taped that phone call and passed it along to me, there could be a great story in it.” “I like the story idea you’re pitching to me, but I need more proof. Your boss probably has documents that demonstrate this; can you rifle through his desk, and send me a copy of whatever you find?” And part consists of those who actively conspire with the leaker to promote the leak, for instance by working out specific plans that would keep the leaker from getting caught, or by providing tools (physical or electronic) that can help the leaker get the information in the first place.

This is what the government is saying James Rosen of Fox News of did — soliciting the leak of classified documents, aiding and abetting the leak by working out means by which the leaker could leak the documents more safely, and generally conspiring with the leaker. (The government isn’t prosecuting Rosen for this, at least at this point, but it is alleging that he did this, since allegation of such criminal conduct by a newsgatherer allows the government to search the newsgatherer’s papers under 42 U.S.C. § 2000aa, the federal statute limiting searches of newsgatherers.)

And it seems to me that this behavior is rightly treated as criminal. Solicitation of crime (see United States v. Williams (2008)), aiding and abetting crime by providing instrumentalities for the crime, and conspiracy to commit a crime are rightly punishable, and I don’t think that the answer should be different when the crime is an illegal leak of information (however newsworthy that information might be).

The Editorial Staff have no idea why so many conservatives are mindlessly repeating the "criminalization of journalism" mantra, but we're pretty darned sure they weren't saying anything so foolish during the Bu$Hitler years. We understand the delicious irony of pointing out the present administration's hypocrisy on matters journalistique, but this is a dangerous line of argument we don't think should be embraced.

During the Bush years, we argued repeatedly that journalists should not get a pass on breaking the law. If we don't like the law (and we firmly believe the government should be allowed to go after leakers), then let's change the law.

But arguing for stricter enforcement when a Republican is in the Oval Office and then screaming bloody murder when a Democrat occupies that position is every bit as hypocritical as the President's suddenly renewed support for shield laws for journalists.

Feel free to point out our many errors in the comments section, knuckle draggers :p

Posted by Cassandra at May 24, 2013 07:01 AM

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No, you'll get no counter argument from me, lady. A pet peeve of mine has always been disclosure of classified data by the media. "The people have a right to know!" No, the DON'T have a right to classified information. And journalists who cite a source who speaks anonymously tick me right the hell off. For one thing, I'm being asked to trust that the journalist had correctly vetted his source. And given the track record of journalists verifying people's claims of military service (i.e. Stolen Valor cases) I'm not willing to make that leap of faith. Then there's the issue of the source's veracity. Anyone willing to lie when they agree not to discuss something who then turns around and blabs to a reporter regardless of the reason is already operating with a strike against their trustworthiness. Sure, they MIGHT be leaking truthful information. But they also might be itching for a measure of revenge against someone, so maybe they fudge some of it (or even all of it). WE DON'T KNOW. We are being asked by the journalist to "trust me, this guy's on the level", but we're not able to verify anything his source says.

And all of that is before we even TALK about classified data. Divulging classified data is a CRIME. Period. There's no exception for "unless you think it's not fair for it to be secret." Or "unless you think (in your asinine opinion) that it's illegal." Or "unless you have a moral objection to what's in the document." Unless you are the declassifying authority for that information it is NOT your call. Morons like Manning think that their fewwings justify putting lives at risk. And make no mistake, divulging classified data can and DOES put lives at risk. And not just for the obvious cases like Aldrich Ames (one of our most prolific mass murderers... his data leaks led directly to the deaths of over a hundred people), but by inadvertently revealing sources. If only three people in the Taliban know that all transmissions dealing with sheep buggering are done over radio frequency X, then if the Taliban find out that we're monitoring frequency X for sheep buggering, then they know one of those three guys is their leak. Silly example, true, but the concept is the same.

Posted by: MikeD at May 24, 2013 11:26 AM

Mike, you ignorant slut :p

As Bill Keller so ably reminded us during the BushHitler Era, the 4th Estate was created by Congress to provide a check on the arrogant and reckless exercise of power by public servants we elect.

Unlike elected public servants (whose power MUST be checked and continually monitored), unelected and unaccountable journalists have the magical ability to unilaterally declassify government secrets without necessarily knowing any of the surrounding circumstances... you know, those petty details like exposing the names and addresses of foreign allies working with us against the Taliban. Or publishing details of how to defeat Marine body armor.

Moreover,Joe and Jane SixPack don't need to worry that the media will abuse their unlimited power - after all, they're *journalists*!

Sheesh :)

Posted by: Cass - Confirmation Bigot-in-Training at May 24, 2013 11:36 AM

Just as an aside - my favorite juicy leak of all time has to be that classified report asserting that we'd lost Anbar Province... just as the Sunni Awakening was gathering strength :p

How long did the media obsess over that one?

Posted by: Cass - Confirmation Bigot-in-Training at May 24, 2013 11:38 AM

Mike, you ignorant slut :p

Just like a Rethuglican to engage in slut-shaming! :P

Posted by: MikeD at May 24, 2013 02:49 PM

"Mike, you ignorant slut :p"

Oh puhleeeze, since when is being a slut a crime (or even an anomaly) on this site?!

Posted by: DL Sly at May 24, 2013 03:51 PM

Howdy Cass,
First, due credit for digging references and history; quite helpful.

Second, while I and many/most others agree that gov't can indeed monitor journalists in order to investigate 'leaks,' most adults (incl GW & his Justice Dept, and others before them) held that the gov't bore an obligation to exhaust other sources first, and then limit investigation of press as narrowly as possible (in deference to 1st amendment concerns) . . . we've recently heard that the AG himself has to sign off on a warrant request against journalists!

The investigation of Rosen, and the plain languange in the warrant requests, make it plain this administration was
- targeting journalists w/o showing other leads weren't sufficient,
- obviously were not narrow & limited searches, and worse,
- were fatuously *not* primarily about a genuine national security issue; the administration was simply trying to control the timing of release of information for *political* purposes!
- frame an incredible contrast w/ admin sponsored leaks to favored news outlets that made the gov't look good (which BTW are quite legal, if approved by POTUS; he is ultimate classification athority).
>>> recall DefSec Gates famous words to WH on learing that details of Seal Team Six raid had been leaked?

Best Regards,

Posted by: CAPT Mike at May 24, 2013 08:22 PM

Because journalists have not been held legally accountable for breaking the law for so long, we have forgotten what the law says about soliciting leaks (or leaks by people who have sworn NOT to leak as an express condition of their employment).

You won't get any argument from me that this administration's prosecution of leakers has been selective and self interested.

But the point remains that illegal is illegal. I think it's fair to point out that the administration is prosecuting the laws unevenly. But I think it's wrong headed to complain that they are prosecuting the law at all - especially when those complaints seek to spread the false notion that soliciting leaks is either "legal" or "normal reporting".

It's not.

Posted by: Cass at May 25, 2013 07:24 AM

Thank you, Cass, for the first intelligent commentary I've seen on this leak scandal.

I think there is a time and place for real journalists to expose classified information, especially when that information is classified specifically to hide serious governmental misconduct. But...big but...they must be prepared to take the heat. First, like an officer who disobeys an order, they better be right about the importance and necessity of the information and the need to break the law/disobey. Second, even then, they have to be willing to take the legal repercussions, as Thoreau suggested in "Civil Disobedience". You have to be prepared to accept the consequences of your disobedience of the law, or you risk attacking the very concept of law.

I'm afraid most "journalists" want just the opposite. "If we printed it, it needed to be printed, and how dare you suggest that we could be punished- we're journalists, our judgment can't be questioned!"

Courageous the 4th Estate is not.

Posted by: DaveJ at May 29, 2013 12:22 AM