The Espionage Act and National Security Reporting

Liberals and conservatives seem to agree that the Obama administration has been waging a “war against the press.”  On the Left, we have Salon and the Huffington Post condemning, respectively, Obama’s “war on journalism” and his “escalating war on freedom of the press.”  On the Right, Jennifer Rubin of the Washington Post has hit the president for his “war on the media,” while Jonathan Tobin of Commentary magazine denounces what he calls a “jihad against the press”; Tobin has even suggested that some of what our president is doing “renders the First Amendment protections of the press null and void” and comparable to what Vladimir Putin has done to the press in Russia.

Pardon me if I find some of this criticism a bit overheated, if not plain ridiculous.

There certainly are problems with what the Obama administration has been doing in our ongoing secrecy wars—but they are quite different from what is commonly supposed.

In the fall issue of National Affairs, in a piece entitled Journalism or Espionage?, I take a broad look at the issues that have recently cropped up in connection with the President’s crackdown on leakers and leaking.  I won’t reprise the full argument here, but I do want to call attention to one area where there is a troublesome Left-Right convergence of opinion buttressing a bad idea.

A good deal of national-security journalism as it is practiced today in the United States skirts the edge of the law. That sounds like a controversial assertion, but it is not. Benno Schmidt, Jr. and Harold Edgar, writing in their magisterial analysis of the espionage statutes, conclude that that the Espionage Act of 1917 is a “loaded gun pointed at newspapers and reporters who publish foreign policy and defense secrets.”

But if the Espionage Act is a loaded gun, it is one that, as Schmidt and Edgar observed, has rarely been fired at the news media, and never successfully. The Obama administration has altered the picture in a highly significant way. By naming a reporter, James Rosen of Fox News, an unindicted co-conspirator in a leak investigation, the Justice Department has fired the loaded gun of the Espionage Act directly at the press, and forced a discussion of the sometimes blurry borderline between journalism and espionage.

According to court documents, Rosen received highly classified information concerning North Korean nuclear testing from a source in the State Department, allegedly Stephen Jin-Woo Kim, a contractor employee. Cultivating his source with flattery, Rosen asked Kim to provide him with intelligence analyses and internal State Department documents. Rosen further suggested that the two communicate using aliases and a system of coded signals to determine when they should meet. Observing this pattern of covert communications, the FBI concluded that Rosen was acting “[m]uch like an intelligence officer [running] a clandestine intelligence source.” It was on this basis that Rosen was named “an aider and abettor and / or co-conspirator” in a plot to violate the Espionage Act.

Journalists and their allies on both Left and Right regard the Justice Department’s action here as a travesty. The New York Times editorialized that by labeling Rosen a co-conspirator the administration was doing nothing less than “threatening [the] fundamental freedoms of the press to gather news.” The Reporters Committee for Freedom of the Press, the leading legal-aid society for journalists, released a statement asserting that the administration’s decision to treat Rosen’s “routine newsgathering efforts as evidence of criminality is extremely troubling.”

But all this raises several questions.  Does the First Amendment truly provide members of the press a license to behave in a manner that is functionally identical to the behavior of spies? That it does provide such a license is a widespread assumption in the press. The sin of the Obama administration has been to call that assumption into question.

One obvious issue raised by the Rosen case is: who qualifies for the kind of protection from prosecution that the press is claiming in this instance? If an ordinary citizen engaged in the kind of conduct that Rosen engaged in—soliciting classified information from a State Department employee using aliases and codes—the FBI would have every right to haul that individual in on espionage charges.  If the “press” enjoys an exemption from being hauled in, it becomes imperative to define the contours of that protected class.

Yet our constitutional tradition defines the press in a very broad way. “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers,” said the Supreme Court as recently as 2010. The ranks of the press thus include not only reporters for major networks like Fox, but lonely pamphleteers like Thomas Paine and journalists working for foreign news outlets like Glenn Greenwald, an American citizen who lives in Brazil and writes for the British newspaper, the Guardian. Indeed, any sentient individual anywhere who dispenses opinion or information in some medium can be considered a member of the press.

If James Rosen is free to engage in conduct that looks every bit like espionage, but according to the Reporters Committee, is merely “routine” news-gathering, does the same right apply to a reporter from the Guardian? How about al Jazeera? How about China’s People’s Daily?

Such questions suggest that the institutional press in this instance is demanding a privilege that no functioning democracy can bestow. The Obama Justice Department was absolutely right to call this demand into question. Yet for that it has been greeted with professions of outrage from Left and Right. Commentary, for example, says that the Rosen episode is a case in which the administration is attempting “to eviscerate the First Amendment” and that its conduct reflects an “unhinged obsession with targeting journalists.”

Pardon me, once again, if I find this position ridiculous and the language as out of place as it is abusive. The only thing “unhinged” here would be if the U.S. government effectively legalized espionage by making the activity of espionage legal when carried out by someone claiming to be a member of the press. 

About the Author(s)

Gabriel Schoenfeld

Senior Fellow at the Hudson Institute in Washington, DC., Senior Adviser to the Mitt Romney for President Campaign Follow him on Twitter (@gabeschoenfeld).