The Obama Justice Department’s crusade against leakers just took a quantum leap—and it’s extremely worrisome.
It’s one thing to go after officials who leak classified information to the press. The Obama administration has gone after more of them than all previous administrations combined. Nonetheless, officials with security clearances sign a contract pledging not to share material with the outside world—and they know they could face criminal penalties if they do. (Daniel Ellsberg figured he might go to prison for leaking the Pentagon Papers and was willing to make the sacrifice.)
However, it’s something else entirely to go after a reporter who receives the leak. That’s what federal prosecutors are doing to James Rosen, the chief Washington correspondent for Fox News. And they’re going after him not as a witness to a crime—nor as a pressure tactic to get him to give up his source (in this case, the source has already been caught)—but rather, in the words of a Justice Department affidavit, as “an aider, an abettor, and/or a co-conspirator”: in short, as someone who might be indicted under the Espionage Act.
This has never happened in this country. (Even in the Pentagon Papers case, several newspapers were served injunctions not to publish stories, but no reporter or editor was ever investigated, much less tried, as a co-conspirator.) If the prosecutors go through with their threat, the entire enterprise of national security journalism—which inherently involves uncovering secrets, to some degree—will be in jeopardy.
A similar case occurred in 2006, during George W. Bush’s presidency. In United States v. Lawrence Anthony Franklin, et al., prosecutors indicted a Pentagon official and two policy analysts with AIPAC under the federal espionage statute. The official, Larry Franklin, was charged with leaking classified information. (He pleaded guilty and served a brief sentence.) The two AIPAC analysts, Steven Rosen and Keith Weissman, were charged simply with receiving it.
The section of the indictment titled “Ways and Means of the Conspiracy” found that Rosen and Weissman:
“… would cultivate relations with Franklin and others and would use their contacts within the U.S. government and elsewhere to gather sensitive information, including classified information, relating to national defense, for subsequent unlawful communication, delivery and transmission to persons not entitled to receive it.”
Those final words are worth noting. They were charged with giving classified information not to foreign governments or spies but simply “to persons not entitled to receive it.”
As I noted in a Slate column at the time, “This is what journalists do routinely every day. They receive information from insiders, write it up in a story, send it to editors, who publish it in newspapers, magazines, wire services, or on Web sites … which are seen by readers who have not been officially authorized to view that classified material.”