Should Journalists Who Talk to Leakers Be Worried?

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Glenn Greenwald, a reporter of The Guardian, speaks to reporters at his hotel in Hong Kong Monday, June 10, 2013. Greenwald reported a 29-year-old contractor who claims to have worked at the National Security Agency and the CIA allowed himself to be revealed Sunday as the source of disclosures about the U.S. government's secret surveillance programs, risking prosecution by the U.S. government. (AP Photo/Vincent Yu)
Glenn Greenwald speaks to reporters at his hotel in Hong Kong on Monday. (AP Photo/Vincent Yu)

There’s been a lot of discussion about how Edward Snowden should be prosecuted. But there’s another question: What should happen to journalists who published the information Snowden leaked, among them Guardian columnist Glenn Greenwald and filmmaker Laura Poitras?

Last month, The Washington Post reported that the government had searched Fox News reporter James Rosen’s personal emails and obtained his phone records, as well as the records of other Fox employees, while investigating a leak. In a 2010 affidavit requesting permission to do so, the FBI claimed Rosen was “at the very least” an “aider, abettor and/or co-conspirator” with a government advisor, Stephen Jin-Woo Kim. Later that year, Kim was indicted under the Espionage Act for telling Rosen that the intelligence community thought North Korea would respond to U.N. sanctions with more nuclear tests — information Rosen used in an article.

In the wake of Snowden’s disclosures — which Director of National Intelligence James Clapper claims have caused “huge, grave damage” — will the government take the next step and press charges against the journalists as well as the leaker?

Rep. Peter King, R-N.Y.

Rep. Peter King (R-N.Y.) speaks to reporters on Capitol Hill in Washington. King has called for Greenwald to be prosecuted. (AP Photo/J. Scott Applewhite, File)

“It would be completely unprecedented if that were to happen. Everyone was pretty outraged when James Rosen was just named in a court document as a potential co-conspirator, and he wasn’t even indicted,” said Trevor Timm, a lawyer and activist with the Electronic Frontier Foundation who, like Greenwald and Poitras, is a founding board member of the Freedom of the Press Foundation. An attempt to prosecute, he said, “wouldn’t pass muster under the First Amendment. Obviously, that doesn’t mean the Justice Department wouldn’t try.”

Timm noted that, earlier this month, Attorney General Eric Holder said, “The department has not prosecuted, and as long as I’m attorney general, will not prosecute any reporter for doing his or her job.” But that did not stop Representative Peter King of New York, the chairman of the House Subcommittee on Counterterrorism and Intelligence, from calling for Greenwald to face charges. “Greenwald, not only did he disclose this information, he has said he has names of CIA agents and assets around the world and threatening to disclose that,” King said. Greenwald quickly responded on Twitter that he had never said any such thing.

“It’s really disturbing King would make that claim and literally make up facts to justify it,” said Timm. “He’s a congressman who sits on the chair of a powerful committee. He has a responsibility to not make those comments. He’s flagrantly misinterpreting the First Amendment.” In a response to King’s claim yesterday that Greenwald’s reporting threatened American’s security, Timm cited Justice Hugo Black’s concurring opinion in New York Times Co. v. United States, which allowed the Times and The Washington Post to publish the Pentagon Papers.

“The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment,” Black wrote. “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”

Greenwald told The Washington Post’s Greg Sargent that, though he’s spoken to lawyers in case he does end up facing prosecution, he’s not too worried. “We know that as journalists we have the right to report on what the government is doing,” he said. “I can’t imagine that anyone other than Peter King” thinks otherwise.

In an interview with Salon, Poitras also said she’s ready to weather a possible government investigation. “If there’s fallout, if there’s blowback, I would absolutely do it again, because I think this information should be public,” she said. “Whatever part I had in helping to do that I think is a service.”

“People take risks,” she added. “And I’m not the one who’s taking the most in this case.”

Timm said he didn’t think that reports about intelligence officials worrying that Snowden may defect to China will change the journalists’ situation. “Government officials may just be trying to spin the story to the media to make Snowden look like a person he’s not,” he said. Even if Snowden did defect, Timm said, he wouldn’t have any secrets to reveal that the Chinese government didn’t already know from hacking American servers.

“The only people who don’t know about what Edward Snowden is revealing is the American public,” Timm said.

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  • Scott Ramirez

    It bogles the mind how some can both claim to use the Constitution as their guiding values while at the same time try to do away with it. Free speech, freedom of/from religion and protection from unwarranted search and seizure are all under attack by the current and previous administrations and Washington in general. When will the mainstream media stop pandering to both parties and their support groups and start calling out those who seek to take our rights away while giving corporations unfettered access to our government?

  • Anonymous

    Rep. King’s deliberate misrepresentations should not be ignored. His first responsibility is to protect the Constitution, which includes Freedom of the Press and the 4th Amendment. If Mr. King has abandoned those principles, he needs to either step down or be removed from office altogether. King is no friend to the citizens he claims to represent.

  • Anonymous

    Mainstream media is owned by corporations that are fully on board with the NSA agenda. It’s only when they get bitten by the system (as in the recent AP monitoring scandal) do they momentarily wake up.

  • Anonymous

    From
    a MacLean’s editorial:

    “Following several high-profile leaks involving information about North Korea and
    al-Qaeda, the U.S. government has reacted by secretly, and in unprecedented
    fashion, seizing the phone and Internet records of reporters for the sole
    purpose of identifying the source behind the information.

    “Rather than violating personal privacy to keep the public safe, this shows a
    government using its extraordinary anti-terrorism powers to protect itself from
    political embarrassment. A line has clearly been crossed. It’s worth noting
    that the Obama White House has prosecuted more government officials for
    the release of secret information than all previous administrations combined.”
    [ http://www2.macleans.ca/2013/06/12/where-to-draw-the-line-on-government-surveillance/

  • Sweet Sixteen~But Wicked Smart

    Journalists quite correctly live by the shibboleth: The Public Has a Right to Know.

  • http://posologist.blogspot.com/ Jeff Healitt

    If the Government collected the private email, telephone conversations, and online usage of all Americans, and can use that information to investigate anyone it pleases, then why hasn’t it used that same data as evidence to investigate and prosecute the “traitors” or “narcissists” who perpetrated the massive financial fraud that created the Great Recession and ruined so many innocent Americans’ lives?

    By not doing so, wouldn’t that suggest selective use of that collected private information to persecute or prosecute people solely based upon political motivations, and thereby providing evidence that not only journalists who talk to leakers should be worried, but that ALL citizens should be worried?

  • Dave

    Certainly in a time of war, there are legal boundaries on reporters and anyone for publicly sharing classified information that put our troops or other American lives at risk. Of course the facts should be gathered and if that line was crossed, reporters should be prosecuted.

  • SalinasPhil

    What does it say about a country when its core values are subverted by an overreaction to terrorism? Is it really possible that a few guys with some airplanes can destroy the founding principles of a great nation? It shouldn’t be. But it’s possible with the help of our own government.

  • Anonymous

    Go to YouTube and watch a clip of World Trade Center #7 crimp in the center and then collapse into its own footprint at free-fall velocity, exactly as it would if it were being demolished by explosives and then ask yourself if the Reichstag fire of 1933 was an “overreaction”.

  • Brent Stauffer

    it’s been happening for a log, long time . . . look at the Dept of Homeland Security, a shockingly massive and dangerous tool of governmental overreach I mean, Homeland Security? Who are they kidding? Mr. Orwell himself could not have imagined a more ludicrous title… That nonsense was quickly followed, I think, with the blatantly unconstitutional “Patriot” Act, oy vey! what’re gonna do, eh? mind you, that’s back when Congress was “getting things done!”

  • Sweet Sixteen~But Wicked Smart

    This is not the end of the beginning, but rather it is the beginning of the end.