Are journalists above the law?

Leak investigations bring to the foreground two incommensurate values. The government wants to protect national security information and enforce the law preventing its disclosure. Journalists have a right and a duty to publish information that serves as a check on government power, to hold government accountable, to make government and other powerful actors uncomfortable, and to expose secrets that reveal compromised principles. I believe in a strong reading of the First Amendment. And generally, so does the legal system.

It is not legal to knowingly disclose protected "national security" information.

But it is not explicitly illegal to disclose classified information if you haven't promised to protect it.

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Some of the best journalism ever committed has come out of the gap between these two poles. Who determines what constitutes "national security" information? The executive branch insists that it does. The definition is loose, though. It allows the government to extend the definition of "national security" in order to punish whistleblowers.

But journalists have to be prudent. To say that journalists have a right to publish classified information that was obtained in violation of a law or a rule is also to say that journalists have the right to facilitate the disclosure of classified national security information. It is also to say that journalists have a right, or duty, to magnify the effect that the breaking of a law has. That's a privilege we have. We have to protect it. Yes, it's traditional news-gathering. But it is not, strictly speaking, legal. But it also is not wrong. I'd call it a non-legal action that is nonetheless protected by the constitution.

Do journalists facilitate or co-conspire when they ask a source to provide information that the journalist knows is classified? Is the line crossed when the journalist asks for specific classified documents? The Justice Department believed that James Rosen of Fox News did so when he communicated with a source, Stephen Kim, who told him about the CIA's view of North Korea's intentions. They called him a co-conspirator for the purposes of probable cause of establishing a search warrant. That was enough to convince a judge to sign off on a warrant to look at the content of his emails, and not merely the to-and-from meta-data. The analyst, Rosen's source, allegedly broke a law. Rosen was the distribution mechanism for the fruit of that poisonous tree. (Would Justice Department ever indict Rosen? I doubt it.)

The problem for the department going forward is that it doesn't want to explicitly say that it will never prosecute journalists. Rosen is clearly a journalist. But is a blogger on Daily Kos a reporter? And if they are, is a blogger for someone who supports different national security goals than the United States? Does everyone with access to the public square deserve the same (extra) protection that traditional journalists engaged in traditional news-gathering do?

This is significant because the Justice Department has generally adhered to the view that journalists are vessels, not active conspirators. for the purposes of obtaining probable cause. Again, the law in question is not the publication, which arguably has a greater effect on national security. It is the act of disclosure, illegal disclosure, by a source. In a sense, it deferred to the principle that a free press ought to be able to function freely. This system generally worked because, by and large, journalists were and are responsible and tend to negotiate with the government before they publish classified information. It also creates a zone where policy makers can discuss sensitive subjects without fear of prosecution themselves. (In every ethics briefing that I've ever sat in on, we reporters are told very explicitly never to ask someone to steal classified information or to obtain information that is not in their possession.)

Basic news-gathering procedures conflict with the law. Journalists ask people who have legal commitments never to disclose classified information to do so if they have a good reason to. And we journalists get to determine what that reason is. Is the whistleblower legitimate? Does he or she have an ax to grind? That's our call, first. And then the government gets to come in and decide for itself.

I think the Obama administration has decided that the habits of Washington are not sufficient to protect national security information in the modern era. They think the balance is off. They think journalists are given too much discretion. By selective shows of force, it wants to make it harder for journalists to report on sensitive subjects. That may backfire; poking the AP like the Justice Department did may provoke a legal counter-reaction that results in a formal privilege or right for journalists, or in legislation that makes it easier for journalists to protect sources.