Following up on Steve’s post, and in timely anticipation of Just Security’s event this afternoon, I was struck by Gabriel Schoenfeld’s somewhat fevered suggestion that the Obama Administration is on the verge of prosecuting journalists for publishing secrets (or for “soliciting” government officials to leak such secrets)—a course of action Schoenfeld has been urging for years.

In support of his prognostication, Schoenfeld points to the case of Fox News’s James Rosen, who is alleged to have solicited classified information from a State Department employee, Stephen Jin-Woo Kim, and to have “aided and abetted” Kim’s wrongdoing.  By “naming” Rosen as “an unindicted co-conspirator in a leak investigation,” Schoenfeld writes, “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.”

That does, indeed, sound fairly ominous.

But what, exactly, did Rosen’s alleged espionage-in-all-but-name consist of?  (And what is the Department of Justice doing about it?)

Well, for starters, Rosen flattered Kim, “playing to [his] vanity and ego”–classic spycraft, in Schoenfeld’s telling, but also, of course, an everyday tool of the journalist’s trade.  And then, having buttered him up, Rosen asked Kim to leak sensitive information.  To be sure, that might be a bit more aggressive than the reportorial norm, but at most it would be a “solicitation” of Kim’s unlawful disclosure.  And since Rosen offered Kim no inducement, prosecution for such solicitation might well be seen as analogous to advocacy of unlawful action, and thus “could be subject to significant First Amendment constraints,” according to a 1997 Department of Justice Report.  (See my further discussion of the question here.)  For that and other reasons, it’s virtually unheard of for the government to endeavor to prosecute reporters for importuning their sources to leak (even when they deviously resort to flattery).

Rosen went further, however:  As Schoenfeld describes it, Rosen suggested that Kim communicate with him “using aliases and a system of coded signals to determine when they should meet,” something that Schoenfeld characterizes as “functionally identical to the behavior of spies.”

And what was this behavior, exactly, that was “functionally identical” to espionage?  Rosen allegedly suggested that he and Lee refer to one another in emails as “Leo” and “Alex,” and that Lee should include one asterisk in an email to indicate that “suggested plans for communication are to proceed as agreed,” whereas two asterisks would “mean[] the opposite.”  Such Paul Revere tradecraft is, to say the least, a far cry from providing a government source with unbreakable encryption.

In any event, a DOJ affidavit in support of a search warrant later alleged that those actions were sufficient to establish probable cause that Rosen aided and abetted Kim’s unlawful disclosure.  Schoenfeld seizes on that affidavit as evidence of a sea change in the way the government will now treat journalists who encourage and publish national security leaks.

It is an interesting academic question, I suppose, whether Rosen’s fairly rudimentary efforts to avoid detection amounted to his materially “aiding and abetting” Lee’s unlawful disclosure.  But even if they did—that is, even if DOJ’s assertion in the affidavit was correct—that is a far cry from the government actually prosecuting Rosen for that same conduct, let alone for publishing the leaked information.  As the Attorney General explained in connection with the Rosen affidavit, the Department of Justice “has never prosecuted a journalist for publishing classified information,” and it’s not about to start doing so now.  What, then, explains the DOJ aiding-and-abetting allegation?  Well, as the Attorney General also noted, in order to obtain a warrant to search Rosen’s emails, the Privacy Protection Act required the government to make such a showing . . . and that was apparently the strongest case it could make.

Whatever one thinks of the adequacy of the DOJ affidavit, or the wisdom of the government’s decision to search Rosen’s email, the Rosen case does not presage a new age in which the federal government treats journalists as spies.  And for an obvious reason—namely, that virtually everyone, especially DOJ prosecutors, understands that there is a world of difference between the two.  Most importantly, as Steve notes, a spy works for a foreign power, and makes efforts to compromise U.S. interests on behalf of that power.  (That’s why spies don’t publish their findings on the front page of a newspaper for the world to see.)

Not so fast, insists Schoenfeld.  We are unable to see such reporters for the proto-spies they truly are because our veneration of the American press has left us blind to the true nature of the modern, worldwide press:  Just imagine, he posits, that the reporter in question worked not for Fox News, but instead for Al Jazeera . . . or, what’s worse, that he lived in Brazil and writes for the Guardian!

OK, let’s consider that hypothetical case.  Say a government contractor egregiously violated the law by leaking very sensitive national security information to an American journalist (in Rio de Janeiro–as though that fact were remotely relevant to the question)—and the journalist then proceeded to publish those leaks . . . in the Guardian, no less.

Indeed, let’s make it an even more clear-cut legal case:  Let’s say the journalist willfully publishes leaked information “concerning the communication intelligence activities of the United States,” something that 18 U.S.C. 798(a)(3)–another provision of the “Espionage” chapter of the U.S. criminal code–unambiguously makes a felony.  Surely in that case, Schoenfeld appears to assume, we would treat him as a spy, wouldn’t we?

Well, no, we wouldn’t; and we don’t.  Indeed, the government’s historic (non)usage of section 798(a)(3) is striking evidence of just how unthinkable it is in our present culture even to consider prosecuting journalists for publishing leaked national security information.

To appreciate how significantly our perspective on such questions has changed over time, consider the following case from the Second World War:

In 1942, Attorney General Biddle asked Assistant Solicitor General Oscar Cox whether a reporter for the Chicago Tribune, Stanley Johnston, could be prosecuted for violating the Espionage Act by virtue of his publication of a list of Japanese ships that had taken part in the Midway battle.  Johnston had found the list on the desk of a naval officer during his authorized visit on a battleship before the battle, and had surreptitiously copied it.  His subsequent publication of the list, in an article entitled “Navy Had Word of Jap Plan to Strike at Sea; Knew Dutch Harbor Was a Feint,” effectively disclosed that naval cryptographers had cracked the Japanese Navy’s code.

In an opinion that OLC recently released (see page 93 of, Assistant Solicitor General Cox informed the Attorney General that the reporter had, indeed, violated a provision of the Espionage Act, and could be prosecuted.  The AG appointed a special prosecutor, who convened a grand jury.  Although a Vice Admiral crowed that “we’re going to hang this guy higher than Haman!,” the case was doomed from the outset, largely because the Navy (understandably) refused to allow its officers to testify concerning how the article had harmed national security.  (Indeed, it was unclear that the publication had had any such effect:  The Japanese apparently continued to use the same codes.  Therefore, as is often the case in such circumstances, the prosecution might have caused much greater harm to national security interests than the leak itself–another reason such prosecutions are so rare.)  In large measure because the prosecutor could not demonstrate how loose lips would indeed sink ships, the grand jury dismissed all charges.  (There’s a dramatic account of the case at pages 428-440 of this biography of the Tribune editor, prominent FDR adversary Robert McCormick.)

After the war, Congress took steps to amend the “Espionage and Censorship” chapter of the U.S. criminal code to facilitate prosecutions in cases of that kind.  In 1951 it enacted what is now section 798, making it unlawful to (among other things) willingly publish any classified information concerning U.S. cryptographic capabilities, or obtained by intelligence from foreign government communications, or “concerning the communication intelligence activities of the United States or any foreign government” generally.  The legislation did not engender much controversy—indeed, even the American Society of Newspaper Editors supported it!  See 95 Cong. Rec. 2774 (1949) (remarks of Sen. Hunt).

As far as I know, there has never been a prosecution of the press under section 798.  But not for lack of possible cases.  These days, newspapers regularly violate section 798 with what might fairly be described as virtual impunity.  Many news stories of the past eight or so years concerning NSA leaks, for example, including the numerous Snowden-based accounts, have plainly violated section 798 insofar as they have revealed classified information “concerning the communication intelligence activities of the United States.”  Yet I’d be surprised if the government has so much as seriously contemplated a 798 prosecution in any of those cases.  Stephen Aftergood, head of the Government Secrecy Project of the Federation of American Scientists, would go further:  He is quoted as saying that it would be “unthinkable today” even to prosecute a reporter such as Johnston, who had in effect stolen and published information revealing military intelligence of enemy ship movements!

Whether or not Aftergood is right about that particular, extreme case, it is certainly safe to predict that we won’t be seeing a raft of section 798 prosecutions anytime soon, even though it is difficult to pick up the morning paper these days without learning of classified information “concerning the communication intelligence activities of the United States.”  The fact that newspapers publish such stories without serious fear of prosecution is largely a function of the fact that our constitutional understandings are very different today than they were in 1942 or 1950.  A newspaper defendant in a section 798 case undoubtedly would raise a First Amendment defense, and that defense might well be successful . . . although the only two Supreme Court Justices to have opined on the question thought otherwise.  See New York Times v. United States, 403 U.S. 713, 735-37 (1971) (White, J., joined by Stewart, J., concurring).  (The Court’s free speech doctrines have evolved considerably in the four decades since the Pentagon Papers case.)

But I think it’s a fair bet we’ll never find out the answer to that constitutional question, since we now (thankfully) live in a culture of a very different constitutional ethos, in which both the public and government officials have a more robust appreciation of the risks of starting to go down that road, and of the substantial value of leaving the press free to make its own judgments of when the public would be well-served by publication of leaked information.  (I don’t mean to suggest that this is a function only of high-minded constitutional principle, although I think that’s a big part of it.  As David Pozen explains in his terrific forthcoming article, government practice in this and related contexts will often be shaped by a complex array of considerations and incentives.)

This does not mean, of course, that the press always makes the proper judgments.  In cases such as Johnston’s and Rosen’s, for example, some might seriously question whether the public interest in learning of the particular information in question justified the possible harm to national security.  Even so, we have as a legal and political culture settled upon a rough consensus that criminal prosecution of the press is not the ideal response to such cases.  At a minimum, and more directly to Schoenfeld’s point, even in cases where the press’s conduct falls squarely within a prohibition of the “Espionage” chapter of the criminal code, prosecutors and other reasonable observers have little trouble understanding the difference between spies and independent journalists.

According to Schoenfeld, this de facto immunity of journalists from “espionage” prosecution is “a privilege that no functioning democracy can bestow.”  But we can; and we do.