The timing of the recent exposure of Department of Justice snooping on the Associated Press and Fox News' James Rosen couldn't have been worse for the White House. The IRS scandal had just exploded, and the emergence of three State Department whistle-blowers had brought Benghazi back to the front burner. With the media outraged over the aggressive snooping and allegations of espionage against reporters for doing what reporters have always done — court insiders for secrets — the media suddenly has become a lot less sympathetic to the Obama administration at precisely the moment that the White House needs journalists the most.
The timing isn't bad for everyone, though. As the media wrestles with the Obama administration's snooping, the trial of an American soldier also accused of espionage started this week. The juxtaposition has some wondering whether the court-martial of Bradley Manning over the WikiLeaks scandal falls into the same category as the Department of Justice's pursuit of reporters, which was motivated by DOJ's zeal to plug leaks of classified information. Because they all involve America's national-security interest in stopping leaks, the cases of Manning, Rosen, and the AP have similar stakes.
MSNBC's Ari Melber wrote that Manning's trial would establish as treason the leaking of any information that could possibly be used by an enemy, greatly escalating the stakes for leakers and making true whistle-blowing to the media an act with potentially deadly consequences. "Prosecutors are insisting that the single act of leaking information to a publisher is equivalent to leaking information to an enemy, like al Qaeda or North Korea. … That could be a hollow victory for the United States, however," Melber warns, "by chilling press freedoms and government accountability in the long run."
Chris Hedges, in a film review of We Steal Secrets (a documentary of the Wikileaks case that Hedges calls "agitprop for the security and surveillance state"), declares that "the persecution of Manning and [Wikileaks founder Julian] Assange is not an isolated act. It is part of a terrifying assault against our most important civil liberties and a free press." Hedges argues that the attack on the AP and Rosen is part of a single assault on information gathering, and that it's aimed at both leakers and reporters. "Once there are no Mannings or Assanges, once no one is willing to take risks to expose the crimes of empire," Hedges warns, "there will be no freedom of the press."
Even the more conservative Eli Lake, a well-respected reporter on national-security matters for the Daily Beast, explicitly links the Manning case to the leak investigations that prompted the DoJ scandals. "All three cases point to an underlying truth about Barack Obama," writes Lake. "He has gone to great lengths to stifle unauthorized sources of information about his foreign policy."
But does Manning really belong in the same category as Rosen and the Associated Press? Not really — even if those linking them still make good points about the dangers of over-prosecution in leaks cases.
First, Manning isn't a reporter — he's the source. Conflating Rosen and Manning obscures the important distinction between leaking and reporting. In the WikiLeaks case, Assange would be the analog to Rosen and the Associated Press, and at least so far, the U.S. has not filed charges against Assange for publishing Manning's leaks. (Assange has taken refuge in Ecuador's embassy in London to prevent his extradition to Sweden over allegations of sexual assault, not to the U.S. for Wikileaks, although the U.S. probably would like to interrogate Assange if given the chance.)
The U.S. has a national-security interest in preventing leaks and enforcing criminal laws prohibiting them, as anyone who has ever held a security clearance knows. I held clearances at different times over a period of 20-plus years in the private sector, although only in a few years did I have actual contact with classified material. During that period, I was briefed regularly on security requirements and the threat of prosecution for releasing any classified material to those outside of the cleared, need-to-know universe. No one who leaks classified data can claim with any credibility not to have understood the legal risks of releasing any of it. Since the U.S. issues the clearances to many, many people who require them to perform critical tasks, Uncle Sam has to make sure that violations of these laws get prosecuted, if only to provide a deterrent to those who might exploit them for their own gain.
Furthermore, Manning has a tough row to hoe in claiming whistle-blower status. Those with clearances are briefed on how to raise issues on legality and ethics within the parameters of security, and none of those processes involve sending the data to a newspaper. If all else fails, one can contact a member of Congress to discuss whatever issue arises, especially those on committees with oversight of the activities involved. That's doubly true for those within the military, where chain-of-command prevails in most cases. Manning made the whistleblower defense even more difficult with his indiscriminate release of material — hundreds of thousands of pages of classified cables and other data — that belies a compelling need to expose any specific wrongdoing.
All of the above applies to both the Rosen and AP cases, too. In both cases, the leaks involved were serious and could have compromised people on the ground in sensitive operations. The DOJ screwed up not in its pursuit of leakers, but in the way it pursued reporters. Congress enacted regulations in the wake of Watergate to ensure that the Department of Justice acted in a restrained fashion when dealing with the media in leak investigations, 28 CFR 50.10. In the AP case, Justice ignored its provisions. With Rosen, Attorney General Eric Holder signed a warrant request that accused a journalist of being a potential co-conspirator in espionage to get around those regulations. On top of that, Holder then misled the House Judiciary Committee on May 15 by stating that he'd never heard of any such effort, only to have his direct involvement in the warrant application exposed by NBC News eight days later.
To some, this may seem a distinction without a difference. If government goes after leakers, sources for reporters will dry up, Hedges claims, representing a de facto end to freedom of the press. That, however, also confuses the roles of source and reporter, and it flies against common experience over the last few decades, too.
People have an almost irrepressible desire to tell secrets, especially those that don't belong to them, which is why government has to establish strong deterrents to leaks that could get people killed and damage our ability to defend ourselves. The real danger lies in making criminals out of reporters and espionage out of normal source-currying behaviors, establishing precedents that will allow those in power to deter journalists from pursuing legitimate stories about the way in which our government operates. That is both a distinction and a difference, and one that matters to both national security and freedom of the press.