Journalism and/as Espionage: A Surreply to Gabriel Schoenfeld

I suspect we’re quickly reaching the point in the conversation about the relationship between national security journalism and espionage in which everything has been said, just not everyone has said it. But there are two claims Gabe makes in his reply to my and Marty‘s responses to his initial guest post that I couldn’t leave unaddressed–that I was “disappointingly careless” in attributing to Gabe views he doesn’t hold; and that I evaded the “central question” Gabe tried to raise, i.e., “how to appraise” the conduct of Fox News reporter James Rosen. Below the fold, I offer brief responses to both assertions–which, as I explain below, appear to reflect Gabe’s unwillingness to accept the logical consequences of his own arguments.

I.  Gabe’s Position–and My “Careless” Description Thereof

Gabe’s principal objection to my response stems from my suggestion that, from Gabe’s perspective, “protecting national security secrets is the paramount public interest.” Gabe rightly points out that he never wrote those words–but I didn’t suggest that he did, e.g., by putting that phrase in quotes. Gabe writes instead that his “view is more conventional: it is simply that we need to find a better equilibrium, remaining an open society but not so open that, on account of an inability to stanch the flow of necessary secrets, we succumb to terrorist attacks or suffer major national-security setbacks.” That’s all well and good, but the thrust of his National Affairs essay–and his opening blog post–was that the equilibrium in which we currently operate places insufficient weight on preventing such terrorist attacks and/or “major national-security setbacks.” Placing more weight on those concerns, as opposed to principles of press freedom, open government, or an informed electorate–which seems to be the unambiguous heart of Gabe’s argument–strikes me as arguing that protecting national security secrets is indeed about the most important thing the government should do in this context, even if the reasons for doing so vary. More to the point, given how little formal protection U.S. law currently provides for media publication of national security secrets, it’s hard for me to see how an argument for tilting the equilibrium even further in the government’s direction reflects anything other than the conclusion that all of these other concerns are secondary. Indeed, what would justify the equilibrium adjustment for which Gabe is arguing other than the very view of the relevant interests that Gabe says I “carelessly” ascribed to him?

II.  Answering the “Central Question”

Leaving aside my use of the word “paramount,” Gabe argues that, in my silliness, I evaded the central question he was trying to raise, i.e., what to make of the conduct by Fox News reporter James Rosen that led him to be named as an unindicted co-conspirator in an Espionage Act prosecution. In his National Affairs essay, Gabe wrote (with my emphasis) that, in so acting, “The administration has forced an examination of the line at which leaking and ‘ordinary’ journalism become spying on the U.S. government” (and, presumably, punishable as such under the Espionage Act). And in his guest post at this blog, Gabe concluded (again, emphasis mine) that “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.” It was those statements to which I was responding when I argued in my reply that there are serious problems in applying the Espionage Act to members of the press–problems that stem in part from the First Amendment, but also from the extent to which most of the Espionage Act (other than § 798, anyway) is at best ambiguous about whether and to what extent it applies to the press (or other third-party recipients of national security secrets). Thus, my response to Gabe argued that the way to resolve this tension is to adopt a form of “Pickering balancing” to better assess the extent to which the First Amendment protects speech related to national security secrets. If that’s “evading the central question,” then I’m confused as to what the “central question” actually is.

Not to worry; as Gabe now explains (emphasis mine), “The issue is not whether Rosen was engaging in espionage. Clearly, he wasn’t. But was he engaging in some other crime and if he was, does he have First Amendment protection for what he was doing? Apart from the legal issues, one might also ask whether Rosen’s conduct was wise, a good model for the conduct of national-security journalism.” I don’t know enough to know whether Rosen may have committed “some other crime” in the process of his newsgathering, but either way, my answer on the First Amendment question hasn’t changed. And as I’m not an expert on journalism ethics, I’m not really qualified to answer the “good model” question. But if those are the questions Gabe meant to ask, he sure picked a provocative way to raise them in both his National Affairs essay and his guest post at this blog. As for my “silliness” in characterizing those pieces as arguing, instead, that what Rosen did may well have been tantamount to “espionage,” Gabe appears now to agree that such an argument would itself have been “silly.” 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).