David Gregory Asks If Glenn Greenwald Should Be Prosecuted

Does David Gregory consider Glenn Greenwald to be a reporter deserving of protection, or "just a blogger" who may be a potential criminal?

Glenn Greenwald Meet The Press

As news was breaking about Edward Snowden’s departure from Hong Kong, NBC’s David Gregory was interviewing Glenn Greenwald for today’s Meet The Press and asked Greenwald whether he thought he should be prosecuted for “aiding and abetting” Edward Snowden. Suffice it to say Greenwald wasn’t pleased:

“I think it’s pretty extraordinary that anybody who would call themselves a journalist would publicly muse about whether or not other journalists should be charged with felonies,” Greenwald said. “The assumptions in your question, David, is completely without evidence, the idea I’ve aided and abetted him in any way. The scandal that arose in Washington before our stories began was about the fact that the Obama administration is trying to criminalize investigative journalism by going through the e-mails and records of APreporters, accusing a Fox News journalist of the theory you just embraced, being co-conspirator in felonies for working with sources.”

“If you want to embrace that theory,” Greenwald continued, “it means that every investigative journalist in the United States who works with their sources, who receives classified information, is a criminal. It’s precisely those theories and precisely that climate that has become so menacing in the United States. It’s why the New Yorker’s Jane Mayer said investigative reporting has come to a standstill, as a result of the questions you just mentioned.”

Taken to its logical extreme, a “yes” answer to Gregory’s question would lead to a world in which investigative journalism itself is a crime. The reporters at The New York Times and The Washington Post?  Co-conspirators in the publication of The Pentagon Papers. Woodward and Bernstein? Co-Conspirators with a top FBI official revealing government secrets. The news outlets that reported on the torture at Abu Gharib? Co-Conspirators in the violation of military secrecy. There is virtually no instance of investigative journalism in recent American history that wouldn’t be considered a crime under the logic of Gregory’s question. Is that the kind of world that he wants? Yes, there are potentially circumstances where a journalist crosses the line from reporter to co-conspirator in espionage, but we have to be careful  in drawing that line, and we need to do so in a way that protects freedom of the speech and the press. Based on the evidence we have now, the idea that Glenn Greenwald is a criminal or potential co-conspirator is simply absurd. Greenwald was reporting on information provided to him by a source. If that becomes a crime, we’ve got a serious, serous problem.

Later in the program during the show’s “round table” segment, Gregory said that he was simply asking a question that others have raised since this story has become public, but I have to wonder if he’d be asking the same question of a reporter from the Times, Post, or from his own network that broke a major story based on classified information received from a source? What was interesting to me about Gregory’s question wasn’t just that he asked it, but the way that he asked it in that it seemed to assume that Gregory had accepted the premise of the question already. Is that because he considers Greenwald to be “just a blogger,” rather than a real reporter? Indeed, in response to Greenwald’s challenge to him in the last paragraph quoted above, Gregory said this:

“Well, the question of who’s a journalist may be up to debate with regard of what you are doing,” Gregory opined. “And of course, anybody who’s watching this understands I was asking a question, that question has been raised by lawmakers as well.”

“I’m not embracing anything, but obviously I take your point,” the NBC host insisted.

Not embracing anything? Are you sure about that, David?

Here’s the video of the exchange, judge for yourself:

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Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. al-Ameda says:

    Any one who watched David Gregory this morning now knows why the Sunday morning talkies are so unsatisfying. It’s a kind of pack/consensus journalism, the narrative is set. It makes one wonder if Gregory has bothered to do any research himself.

    Why in the world should Glenn Greenwald be prosecuted for aiding and abetting Edward Snowden in making public (again) the existence of an NSA program that we have been aware of at least since 2006?

  2. HarvardLaw92 says:

    Greenwald was reporting on information provided to him by a source.

    No, Greenwald received and published information which he knew to be classified. Both are criminal acts, and I’m willing to bet a year’s salary that he knew his acts to be criminal before he committed them . He just didn’t care. In pursuit of what he believes to be his higher moral authority, he believes himself to be above the law.

    Now, to my knowledge, the Espionage Act makes no exception for members of the press, nor does NYT Co. v. United States represent some blanket exception with regard to the press with respect to the printing of classified information. In fact, 5 of the 9 justices on that panel indicated that they would have supported such an indictment with respect to the Times.

    So why shouldn’t he be prosecuted for criminal acts, when his acts were indeed criminal?

    Just as an example, should reporters who somehow knew about the Normandy invasion ahead of time and printed that information have been immune from prosecution for doing so? Because that is where I see your argument leading. After all, Germany knew that an invasion was a given, but it didn’t know the specifics. If the only limitation on the press is its own sense of propriety, then we’re at the mercy of the nuttiest of the True Believers in that regard.

  3. Mr. Replica says:

    I say prosecute Greenwald when Gregory gets prosecuted for the gun magazine kerfuffle.

    Seems fair to me.

  4. Matt Bernius says:

    Well, the question of who’s a journalist may be up to debate with regard of what you are doing,” Gregory opined. “And of course, anybody who’s watching this understands I was asking a question, that question has been raised by lawmakers as well.”

    Really, Gregory? Really?!

    While the entire question of whether or not an independent blogger, posting at their own site is a journalist, is still working it’s way through the lower courts, the fact is Greenwald is hired by, and writing for, one of the best known outlets of traditional journalism IN THE WORLD. So trying to play the “just a blogger” card is pure, high J-School BS.

    Historically all one needed to do to be a journalist was be hired to write content (not ad) by a newspaper. Which Greenwald has been.

  5. stonetools says:

    Wait, Dancin’ Dave said something stupid? How can that be? ;-).
    I presume Greenwald could be prosecuted as a co-conspirator. DOJ guidelines would forbid that though and its likely a court would dismiss it.

  6. Jr says:

    Gregory is a dolt……but this is a legitimate question. If you read Snowden’s timeline, he contacted Greenwald prior to getting the job at Booz Hamilton. So it does make you wonder if Greenwald knew what Snowden was up too in advance.

  7. gVOR08 says:

    @stonetools: Apologies. Wrong button. iPad.

  8. Spartacus says:

    @HarvardLaw92:

    No, Greenwald received and published information which he knew to be classified. Both are criminal acts, . . .

    These acts were no more criminal than most Sunday blue laws and they are prosecuted with about the same frequency.

    Let’s stop pretending that Greenwald has done something new and evil here.

  9. Andre Kenji says:

    Considering that Greenwald is married to a Brazilian citizen the diplomatic implications of the idea would be fun.

  10. HarvardLaw92 says:

    @Spartacus:

    These acts were no more criminal than most Sunday blue laws and they are prosecuted with about the same frequency.

    You are rationalizing because you agree with his actions.

    Receiving and/or publishing classified information without being authorized to do so are felonies, which carry a mandated penalty of 10 years in a federal prison and/or nasty fines for EACH act. (Note: in my experience it has ALWAYS been a case of active incarceration. Federal courts do not hand out fines for violation of this section of the code.)

    In other words, it’s 10 years or a fine for EACH classified document received. It’s a further 10 years or a fine for EACH classified document published.

    Receiving and publishing the order regarding Verizon alone would subject Greenwald to 20 years in a federal prison. Anything further which he may have received and published would only extend that time. Trying to compare that to buying beer on a Sunday is, frankly, ludicrous.

    Let’s stop pretending that Greenwald has done something new and evil here.

    No, let’s stop rationalizing that what Greenwald did wasn’t against the law simply because some of us believe ourselves to be entitled to know everything that we want to know. We have security classifications for a reason.

  11. legion says:

    @HarvardLaw92:

    No, Greenwald received and published information which he knew to be classified. Both are criminal acts, and I’m willing to bet a year’s salary that he knew his acts to be criminal before he committed them . He just didn’t care. In pursuit of what he believes to be his higher moral authority, he believes himself to be above the law.

    My understanding was that Snowden clearly broke the law by releasing classified information he had legitimate access to. If he had violated security protocols to get (and then release) information he did _not_ have proper access to, that would be a different set of laws. But Glenn Greenwald, to the best of my knowledge, has never held a security clearance and never signed any sort of agreement to protect classified information, and that’s the difference that keeps journalists out of jail for this sort of thing – I’m not sure exactly what laws he has broken here.

  12. HarvardLaw92 says:

    @legion:

    You’re misunderstanding. It is a criminal offense for anyone who has legitimate access to classified information to release said information to persons not authorized to see it.

    It is ALSO a criminal offense for a person who doesn’t have authorization to view said information. It is a FURTHER criminal offense for that person, having seen said information, to publish it.

    Short version: Snowden’s actions would be in violation of the Espionage Act regardless of his clearance level.

    Greenwald’s receipt of the information without authorization is criminal in and of itself. His publishing of the information is criminal in and of itself. It doesn’t matter what clearance Snowden may or may not have had. Greenwald’s acts are separately criminal irrespective of Snowden’s acts.

    Example: I have a security clearance. You do not. I give you classified information, which you subsequently publish.

    I have violated the law once. You have violated it twice.

  13. Ben Wolf says:

    @HarvardLaw92: Excepting, of course, the First Amendment which places no restrictions on freedom of journalists to publish what they will. And there is no law Congress can pass which supercedes the Constitution other than amending it.

  14. HarvardLaw92 says:

    @Andre Kenji:

    I know that Brasil has very recently opened the door to SSM, but has Greenwald actually married his partner? As I understood it they are not married.

  15. HarvardLaw92 says:

    @Ben Wolf:

    No Constitutional right is unequivocal. The same 1st Amendment that you are reading to grant an unequivocal right to the press to publish would similarly grant an unequivocal right to speak and an unequivocal right to peaceably assemble. Those rights are addressed within the same clause.

    And yet we have laws criminalizing the inciting of a riot, of defamation and of holding a rally without a permit.

    The 1st Amendment simply says that the freedom of the press may not be abridged, i.e. that prior restraint (with very limited exceptions) is a no no. It does NOT immunize the press from the consequences of what it decides to print.

    No differently than a law can’t prevent you from speaking, but it CAN hold you accountable for any harmful effects of what you choose to say. The 1st Amendment is not a get out of jail free card.

  16. HarvardLaw92 says:

    @Ben Wolf:

    Or, to put it in a blunter way:

    You’ve just effectively argued that the 1st Amendment protects defamation & inciting a riot, and that no laws may be passed which criminalize either of those.

    Was that your intent? if not, please feel free to differentiate.

  17. Spartacus says:

    @HarvardLaw92:

    You are rationalizing because you agree with his actions.

    No, I’m being rational in concluding that a 100-year old law that, prior to Obama, had been used to prosecute a grand total of only 3 people and has never, ever been used to prosecute a journalist is not a basis for prosecuting Greenwald.

    As I correctly pointed out, prosecutions under the Espionage Act are about as frequent as prosecutions under Sunday Blue Laws – and that’s certainly not been due to a lack of journalists printing classified information that had been leaked to them.

    You have completely lost all perspective on this matter. I suspect that is because you disagree with Greenwald’s actions. No one following this story can meaningfully distinguish Greenwald’s actions from those of all the other journalists who’ve conducted investigative journalism relating to govt affairs. There’s no basis whatsoever for thinking Greenwald’s actions are unique, evil or even harmful.

  18. HarvardLaw92 says:

    @Spartacus:

    No, I’m being rational in concluding that a 100-year old law that, prior to Obama, had been used to prosecute a grand total of only 3 people

    Sorry, but you’ll have to back that one up with a source. There have been literally hundreds of prosecutions under the Espionage Act of 1917 & amendments to the same since it was enacted. Hell, the 1950s alone had that many.

    You have completely lost all perspective on this matter. I suspect that is because you disagree with Greenwald’s actions.

    No, I simply tolerate no violation of the law, regardless of the circumstances. I’m the guy who would prosecute his mother if she violated the law, and in fact did end up prosecuting a friend & former classmate. No exceptions, ever, for whatever reason or under whatever imagined justification. It’s really that simple.

    Greenwald is no different than any other person who might have received or published classified information. Doing so is against the law, therefore Greenwald deserves to be charged and prosecuted. If he wishes to make a 1st Amendment argument in his defense, he’s more than welcome to do so, and it’ll properly be evaluated by a court of law.

  19. legion says:

    @HarvardLaw92:

    Example: I have a security clearance. You do not. I give you classified information, which you subsequently publish.

    I have violated the law once. You have violated it twice.

    The problem there is that you could have scribbled “Classified” on any set of scraps and handed it to me – without the legit in-briefing, I have no plausible way of actually _recognizing_ classified information, either by content or by labeling; nor can I have any realistic ability to determine the _actual_ threat to national security. That’s what makes such crimes nearly impossible to prosecute. And it creates an inherent ability to blackmail someone by doing just what I described – tricking them into reading “classified” documents.

  20. It should be noted that it’s especially ironic for David Gregory to asking this question given he was himself recently in hot water for breaking the law in the name of journalism:

    Influencing our judgment in this case, among other things, is our recognition that the intent of the temporary possession and short display of the magazine was to promote the First Amendment purpose of informing an ongoing public debate about firearms policy in the United States, especially while this subject was foremost in the minds of the public

    I guess Greenwald doesn’t get credit for “promoting the First Amendment purpose of informing an ongoing public debate”. Loyal bootlicks like Gregory get a pardon, legitimate journalists like Greenwald get the book thrown at them.

  21. @HarvardLaw92:

    No, Greenwald received and published information which he knew to be classified. Both are criminal acts, and I’m willing to bet a year’s salary that he knew his acts to be criminal before he committed them .

    Unfortunately, the Supreme Court disagrees with you:

    http://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States

    You’d think someone with a fancy-pants Harvard law degree would know that.

  22. Andre Kenji says:

    @HarvardLaw92: They share a home and they have a stable relationship, so, even if they are not married they are living under a Civil Union. That´s not so different from a marriage under Brazilian Law.

  23. Boyd says:

    @Stormy Dragon: Since David Gregory is a “legitimate journalist,” it’s okay for him to break the law in order to educate the unwashed masses, even though he knew at the time he committed the crime that what he was doing was illegal.

  24. HarvardLaw92 says:

    @Stormy Dragon:

    Thanks for the legal lesson.

    Now, go back and read that case again. It was a strong statement against prior restraint. It was not a statement against subsequent prosecution. In fact, as I’ve already noted above, 5 of the 9 justices on that panel indicated that they would have voted in favor of conviction had the state chosen to seek indictments after the fact of publishing instead of seeking a restraining order enjoining publication at all.

  25. HarvardLaw92 says:

    @Andre Kenji:

    I wasn’t expressing an opinion in disfavor. I’m a huge supporter of SSM. I just didn’t believe them to, in fact, be married and was asking if that was inaccurate.

  26. HarvardLaw92 says:

    @legion:

    Call me crazy, but that notation at the top of the order, combined with the signature of a FISA judge, would lead one to believe that it was legitimately classified information.

    Greenwald obviously believed it to be, otherwise he 1) wouldn’t have printed it at all or 2) would have notated it as being potentially specious. He didn’t do so. His own actions strongly argue in favor of mens rea.

    I was a pretty conservative prosecutor, but I have no problem thinking I’d be able to get a conviction out of that one.

  27. Andre Kenji says:

    @HarvardLaw92: Under Brazilian Law, a couple in a stable relationship and that lives in the same house is living in a Civil Union. A Civil Union is not so different from marriage in Brazil, and that´s why Glenn manages to live in Rio de Janeiro. For instance, a man lives with her girlfriend. If he dies, his girlfriend can request her part of his estate, even if there is no will, no contract or no formal civil union. When singer Cassia Eller died ten years ago, the courts allowed her partner to raise Cassia´s child. And at that time there was no Civil Union for same sex couples.

    And almost all same sex couples that I known in a stable relationship married soon as they managed to get authorization from the courts. But I asked Glenn about that, let me see if he answers.

  28. Spartacus says:

    @HarvardLaw92:

    Sorry, but you’ll have to back that one up with a source. There have been literally hundreds of prosecutions under the Espionage Act of 1917 & amendments to the same since it was enacted. Hell, the 1950s alone had that many.

    I should have written more precisely. The point I was trying to make is that prior to Obama the Espionage Act had been used only 3 times to prosecute people for having disclosed classified information. It has never been used to prosecute a journalist. So, again, my point stands: There is no rational basis for concluding that Greenwald should be charged with violating the Espionage Act when none of the other thousands of journalists who have also disclosed classified information given to them have been prosecuted.

    It doesn’t matter if you believe Greenwald violated the Act. It doesn’t matter if you hold the view that every single violation of law should be prosecuted. The fact remains that no prosecutor has ever charged a journalist with violating the Espionage Act. So, I maintain that your reluctance to accept those facts stems from your dislike of Greenwald’s actions and not from an understanding of the history of the Espionage Act in relation to journalists.

    http://truth-out.org/news/item/16120-six-whistleblowers-charged-under-the-espionage-act

    “The Espionage Act, enacted during the first World War to punish Americans who aided the enemy, had only been used three times in its history to try government officials accused of leaking classified information — until the Obama administration. ”

    http://www.nationalreview.com/article/349372/obama-and-1917-espionage-act

    “Barack Obama and his Justice Department seem to be of a different mind. They have used the Espionage Act of 1917 six times to bring cases against government officials for leaks to the media — twice as many as all their predecessors combined.”

  29. Jenos Idanian says:

    Personally, I think Glenn Greenwald should be prosecuted on general principles. But in this case, I’m not seeing much of a case for it. He should be treated like any other journalist — such as, say, James Rosen of Fox News.

    On the other hand, maybe he should be treated like David Gregory — the laws are meant for little people, not prominent liberals. They’re special and above the law.

  30. Spartacus says:

    @HarvardLaw92:

    I’m the guy who would prosecute his mother if she violated the law, and in fact did end up prosecuting a friend & former classmate. No exceptions, ever, for whatever reason or under whatever imagined justification. It’s really that simple.

    I mean no offense, but it is precisely this kind of simple-minded lack of discretion that gives people great pause when they hear of their govt spying on them and acquiring massive amounts of data without their permission or even knowledge.

  31. Tillman says:
  32. Tillman says:

    Friggin’ phone.

  33. @HarvardLaw92:

    The point of the courts ruling is that, unlike people who have signed agreements to be bound by the classification system, the government cannot prosecute “outsiders” for releasing classified information solely because it is classified. It is their burden to show that the message caused “grave and irreparable harm” to national security. It’s not be shown that anything Glenn Greenwald has written in the Guardian caused even minor harm to the US, much less grave and irreparable harm (and no, making politicians and bureaucrats uncomfortable about the questions they’re being asked by the public is not harm).

  34. Bob @ Youngstown says:

    Consider this:
    If I were to know the location and manner of contacting a person who is in flight from justice, do you suppose the police would be questioning me?

    Were I to say that I am in possession of government classified documents that I have no right to possess and do not intend to return, do you suppose that the DOJ would be questioning me?

    If, by my own admission, those documents are so sensitive to national security that I am reluctant to expose them, do you think I have a moral, ethical, or legal responsibility to return them?

    I don’y know if what Greenwald and Snowden are doing is a violation of the Espionage act or not, a courtroom is the place to decide that. But what I do believe is that Greenwald is facilitating Snowden’s agenda to damage the United States both at home and abroad.

    Regardless of being a reporter or not, Greenwald has made himself part of the story. I fail to see how Mr Greenwald has more latitude to facilitate a law breaker than any other citizen, particularily in so much as he is no longer proyecting the identity of his source.

  35. Spartacus says:

    @Bob @ Youngstown:

    Regardless of being a reporter or not, Greenwald has made himself part of the story. I fail to see how Mr Greenwald has more latitude to facilitate a law breaker than any other citizen, . . .

    Can you describe how it would be possible for any reporter to write about classified information he has received without facilitating a “law breaker?”

    And, if it’s not possible for a reporter to do this, are you content with a govt that is free to carry out wrongdoing and avoid all accountability because it has prohibited those who know of its wrongdoing from ever disclosing it to the press or anyone else?

  36. wr says:

    @HarvardLaw92: “No, I simply tolerate no violation of the law, regardless of the circumstances”

    So Daniel Ellsberg should have spent decades in jail?

    It’s funny, I’ve known a lot of lawyers in my life, and most of them are aware that the law is a flawed thing, that justice oftens demands tempering the letter of the law with mercy, or even reason, and that laws can generally be twisted quite easily by someone with money and power.

    I’ve never met anyone who’s made it through law school and practiced law who’s managed to hold on to this vision of the law as a pure and shining thing which must be obeyed by all in every instance, and of which every violation must be punished.

    You must be a hoot at the law school reunion…

  37. HarvardLaw92 says:

    @Spartacus:

    So, I maintain that your reluctance to accept those facts stems from your dislike of Greenwald’s action

    I thought I’d been pretty clear about that point already. I don’t like lawbreakers, period. I especially dislike those who believe themselves to be entitled to break the law either because it somehow magically doesn’t apply to them or because they’re following some mythical “higher purpose”, which is just another name for rationalizing.

  38. HarvardLaw92 says:

    @wr:

    So Daniel Ellsberg should have spent decades in jail?

    Yup. Daniel Ellsberg violated the law. Hell, he ADMITTED to violating the law. He should therefore have been convicted and sentenced to prison.

    Absent misconduct on the part of law enforcement, that’s exactly where he would be. Ellsberg’s actions were never vindicated. He simply got lucky and managed to avoid being convicted.

  39. HarvardLaw92 says:

    @Stormy Dragon:

    The point of the courts ruling is that, unlike people who have signed agreements to be bound by the classification system, the government cannot prosecute “outsiders” for releasing classified information solely because it is classified

    That’s an inventive interpretation of a ruling which addressed nothing more than the premise that the government couldn’t just run off to court and peremptorily get a restraining order to prevent a newspaper from publishing classified information.

    Yet again, for the learning impaired, 5 of the 9 justices on that panel indicated that they WOULD have voted to convict if the government had sought indictment against the Times & its reporters post-publication.

    It is their burden to show that the message caused “grave and irreparable harm” to national security.

    If they wish to justify a restraining order preventing publication, not if they wish to indict after the fact of publication. Reporters (and civil libertarians, which I admit to detesting) seem to believe that NYT Co. is a carte blanche ok to print whatever they like without fear of repercussions from doing so. That simply is not true.

    It’s not be shown that anything Glenn Greenwald has written in the Guardian caused even minor harm to the US,

    Again, which is a great argument that the government shouldn’t have been able to prevent him from printing it in a US newspaper (which it didn’t do). You’re stretching that ruling to immunize him from any consequences at all. Again, that simply isn’t accurate. Had he done what he did in my jurisdiction, instead of publishing from the safety of Brasil, I’d have sought (and gotten) an indictment against him.

  40. HarvardLaw92 says:

    @Spartacus:

    “The Espionage Act, enacted during the first World War to punish Americans who aided the enemy, had only been used three times in its history to try government officials accused of leaking classified information — until the Obama administration. ”

    Just off the top of my head …

    Aldrich Ames
    Samuel Loring Morison
    Jonathan Pollard
    Robert Hansen
    John Anthony Walker
    Jerry Whitworth
    Michael Walker
    Arthur Walker

    Oh, and just incidentally, in May of 1986 Ol Bill Casey threatened to prosecute the New York Times, Washington Post, Washington Times, Time and Newsweek, and successfully managed to delay a Post story. The other four took the threat of prosecution so seriously that they desisted in printing at all.

    Perhaps TruthOut needs to learn how to do better research, or alternatively just needs to learn how to count.

    Or maybe you just need to find better sources …

  41. @HarvardLaw92:

    Uh… none of those names were prosecuted for leaking to journalists.

  42. HarvardLaw92 says:

    @Stormy Dragon:

    Actually. Morison WAS prosecuted for leaking classified information to journalists (specifically Jane’s), but his blockquote (the one that I helpfully cited in my reply) didn’t specify that limitation.

  43. @HarvardLaw92:

    Reporters (and civil libertarians, which I admit to detesting) seem to believe that NYT Co. is a carte blanche ok to print whatever they like without fear of repercussions from doing so.

    Not at all. But the paper most be prosecuted for causing actual harm, not merely the potential for harm. Otherwise they government could just declare everything classified and use it as an excuse for wholesale censoring of the media.

    Had he done what he did in my jurisdiction, instead of publishing from the safety of Brasil, I’d have sought (and gotten) an indictment against him.

    Well, as the saying goes, a prosecutor could get an indictment for a ham sandwhich. While I believe your claim, I don’t find it particularly illustrative of anything but your own lack of character.

  44. HarvardLaw92 says:

    @Stormy Dragon:

    But the paper most be prosecuted for causing actual harm, not merely the potential for harm.

    Again, no. The promulgation of classified information to unauthorized persons is held to be, in and of itself, harmful to national security. There is no “well, he didn’t really hurt anybody” aspect to this. The test is a yes or no question – either the defendant did commit an unauthorized release, receipt or publication (among others) of classified information or he didn’t. Lack of harm isn’t a mitigating factor.

    Otherwise they government could just declare everything classified and use it as an excuse for wholesale censoring of the media.

    There is an oversight process with regard to the appropriateness of security classifications. The media doesn’t get to decide what should be and shouldn’t be classified.

    While I believe your claim, I don’t find it particularly illustrative of anything but your own lack of character.

    First time I’ve ever been accused of having a lack of character for wanting to uphold the law, but hey, whatever gets you through the day.

  45. Spartacus says:

    @HarvardLaw92:

    I thought I’d been pretty clear about that point already. I don’t like lawbreakers, period.

    You did make this clear, but what you haven’t done is made clear that you understand that your personal distaste for those you “believe” have broken the law is a completely separate and unrelated issue from whether what Greenwald has done justifies prosecution under the Espionage Act. Instead, you’ve written as if your distaste for these supposed lawbreakers is driven by a clear-eyed, dispassionate understanding of the Espionage Act, and nothing could be further from the truth. And, you’ve invoked your prior experience as a prosecutor to suggest that your understanding of the Espionage Act is more insightful than the understanding of other commenters here.

    It’s one thing to simply say, “I feel Greenwald has violated the Espionage Act and I’d really like it if prosecutors had the same thoughtless, narrow-minded view of the Act that I have because then, not only would they prosecute Greenwald, but they’d also prosecute all the thousands of other journalists who have done the same thing as Greenwald over the past 9 decades and what a great and more free society this would be.” But that’s not what you’re saying.

    Again, in almost 100 years of the Espionage Act, not a single prosecutor in this entire country has ever attempted to prosecute a journalist for disclosing classified information he’s received. Yet, you apparently believe Greenwald is undoubtedly guilty of violating the law.

    As WR pointed out, your view on this is what one would expect from someone who just got a high score on his LSAT exam and doesn’t know anything about the law, much less have any actual experience practicing.

  46. HarvardLaw92 says:

    @Spartacus:

    is a completely separate and unrelated issue from whether what Greenwald has done justifies prosecution under the Espionage Act. Instead, you’ve written as if your distaste for these supposed lawbreakers is driven by a clear-eyed, dispassionate understanding of the Espionage Act, and nothing could be further from the truth.

    The statute is not vague or ambiguous in any way. I’m simply reading it, as an attorney and former prosecutor, and making a judgment about the appropriateness of prosecution based on what the statute mandates.

    I’d offer, instead, that you guys are making an argument akin to “well, the statute might say that, but it really shouldn’t be allowed to say that, because in my opinion that is just wrong and I don’t like it.”

    Tough noogies. The law says what it says. If you don’t like it, get it changed, but spare me the arguments about how it should be twisted to suit your preferred outcome. As I said, it is not an ambiguous statute, by any stretch of the imagination.

    And, you’ve invoked your prior experience as a prosecutor to suggest that your understanding of the Espionage Act is more insightful than the understanding of other commenters here.

    Imagine the gall an attorney must possess to believe that he knows more about the law than a layman. I mean, whew, who would ever support a supposition like that?

    Again, in almost 100 years of the Espionage Act, not a single prosecutor in this entire country has ever attempted to prosecute a journalist for disclosing classified information he’s received. Yet, you apparently believe Greenwald is undoubtedly guilty of violating the law.

    Yes, I do, without hesitation. Yet again, the statute is not vague. Not even remotely so. You are confusing “hasn’t ever” with “can’t”, and those are very different animals. Prosecuting a journalist has political implications. It makes people mad, ergo it doesn’t happen. Don’t confuse that with meaning that it can’t happen. Many people aren’t convicted of speeding, just as an example, because the prosecutor decides not to pursue prosecution. That doesn’t imply that he CAN’T prosecute them. It simply indicates that he WON’T prosecute them.

  47. Spartacus says:

    @HarvardLaw92:

    Perhaps TruthOut needs to learn how to do better research, or alternatively just needs to learn how to count.

    Or maybe you just need to find better sources …

    Not at all; you just simply need to read more carefully. The people you listed were convicted for spying on behalf of other governments. They were not convicted for leaking classified information to the press.

  48. HarvardLaw92 says:

    As WR pointed out, your view on this is what one would expect from someone who just got a high score on his LSAT exam and doesn’t know anything about the law, much less have any actual experience practicing.

    Nice. Go for the ad hominem in response to an argument that you dislike, but can’t refute.

    Not that it needs to be defended, but before accepting the position I currently occupy, I spent several years as a JAG, several more as a state’s attorney and several more after that as an AUSA.

    By all means, feel free to let us know your CV, since you seem to believe yourself qualified to impugn everyone elses …

  49. HarvardLaw92 says:

    @Spartacus:

    Not at all; you just simply need to read more carefully. The people you listed were convicted for spying on behalf of other governments. They were not convicted for leaking classified information to the press.

    The blockquote that I took from your comment said nothing about leaking classified information to the press. It simply asserted, and I quote again, “had only been used three times in its history to try government officials accused of leaking classified information”

    Nothing about the press in that statement, but again, Morison WAS convicted of leaking classified information to the press.

    Every one of those people violated the Espionage Act. There is no provision or stipulation in that act which says “except when you leak it to the press”. For that matter, there is no stipulation that says “except when committed by a member of the press”. A leak is a leak, regardless of who the material is leaked to. The law views a leak to the press as being no different than a leak to a foreign government. Under the statute as written, they are functionally identical violations.

  50. @HarvardLaw92:

    The promulgation of classified information to unauthorized persons is held to be, in and of itself, harmful to national security.

    Hence my earlier point about “people who have signed agreements to be bound by the classification system”. There’s no question that Edward Snowden can be prosecuted for giving the information to Glenn Greenwald. The question is under what conditions Greenwald can be prosecuted for receiving it.

  51. @HarvardLaw92:

    Nothing about the press in that statement

    It’s implied in the term “leaking”. Giving information to a foreign intelligence agency is rarely described a “leaking”.

  52. Spartacus says:

    @HarvardLaw92:

    The law says what it says. If you don’t like it, get it changed, but spare me the arguments about how it should be twisted to suit your preferred outcome.

    This is an extremely strange comment in light of the fact that every single person who has been charged with enforcing the law and/or prosecuting its violators has adopted the exact same view of the law as I have. You stand completely alone in your unfounded opinion that Greenwald is a violator, yet we are the ones who have twisted it to suit our preferred outcome.

    Imagine the gall an attorney must possess to believe that he knows more about the law than a layman.

    But you obviously don’t know more about this particular issue since you’re consistently getting it wrong.

    You are confusing “hasn’t ever” with “can’t”, and those are very different animals. Prosecuting a journalist has political implications. It makes people mad, ergo it doesn’t happen.

    You’re baselessly assuming that it hasn’t happened because such prosecutions will make people mad as opposed to recognizing that such a prosecution wouldn’t be upheld. We both could offer speculation as to why it hasn’t happened, but our speculations wouldn’t matter. What does matter is that literally thousands of journalists have disclosed classified information they’ve received and no law enforcement officer has ever arrested them and no prosecutor has ever prosecuted them.

    Therefore, as I stated in my initial comment, Greenwald’s disclosure is no more criminal than the conduct that is prohibited by Sunday Blue Laws and prosecutions of Greenwald’s conduct are about as frequent as Sunday Blue Law prosecutions. Consequently, there is absolutely no rational basis for concluding Greenwald would ever be convicted for violating the Espionage Act.

  53. HarvardLaw92 says:

    @Stormy Dragon:

    It’s implied in the term “leaking”. Giving information to a foreign intelligence agency is rarely described a “leaking”.

    Well, under that interpretation they still got it wrong. Only one government official has ever been convicted under the Espionage Act of leaking classified information to the press, not three.

    Citing TruthOut as an authoritative source was probably a mistake, and I suspect that you know that.

  54. HarvardLaw92 says:

    @Stormy Dragon:

    The question is under what conditions Greenwald can be prosecuted for receiving it.

    Well, then, in that event lets examine the statute, 18 USC §798(a):

    (a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information

    (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

    (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

    (3) concerning the communication intelligence activities of the United States or any foreign government; or

    (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

    Shall be fined under this title or imprisoned not more than ten years, or both.

    Greenwald knowingly and willingly (unless you are prepared to assert that he’s an idiot who just lied when he said that the document he published was classfied) published a classified document concerning communication intelligence activities.

    Please, for my edification, find the language in that section that implies that it doesn’t apply to a member of the press. I’d argue that “or publishes” was intended to make the section specifically applicable to the press. I mean, who else publishes information?

    But, by all means, feel free to make an argument in the contra (which doesn’t add words to the statute which aren’t actually in it).

  55. Spartacus says:

    @HarvardLaw92:

    The blockquote that I took from your comment said nothing about leaking classified information to the press. It simply asserted, and I quote again, “had only been used three times in its history to try government officials accused of leaking classified information”

    Seriously? You should be downright embarrassed for trying to make this argument. As StormyDragon, who is presumably a “layman” already made clear, the term “leaking” is not used to describe spying for the benefit of a foreign country. “Leaking” is a term that is used almost exclusively to describe the passage of information to members of the press.

    [B]ut again, Morison WAS convicted of leaking classified information to the press.

    Dude, you really are embarrassing yourself. Morison was pardoned.

  56. Spartacus says:

    @HarvardLaw92:

    Go for the ad hominem in response to an argument that you dislike, but can’t refute.

    I don’t think you know what “ad hominem” actually means. I did not attack you; I attacked your view. Here, again, is my exact quote:

    As WR pointed out, your VIEW on this is what one would expect from someone who just got a high score on his LSAT exam and doesn’t know anything about the law, much less have any actual experience practicing. (emphasis added)

    By all means, feel free to let us know your CV, since you seem to believe yourself qualified to impugn everyone else’s …

    I mow lawns for a living.

  57. HarvardLaw92 says:

    @Spartacus:

    Dude, you really are embarrassing yourself. Morison was pardoned.

    Morison was convicted and sentenced to 2 years in federal prison in 1985, a sentence which he served in its entirety.

    He was pardoned in 2001, by Clinton, over the objections of the CIA and the NSA, among others.

    I’m not sure what you believe that implies. It certainly didn’t give him those two years of his life back.

  58. HarvardLaw92 says:

    @Spartacus:

    What does matter is that literally thousands of journalists have disclosed classified information they’ve received and no law enforcement officer has ever arrested them and no prosecutor has ever prosecuted them.

    Which, again, is an argument that it HASN’T happened yet. What I’m looking for from you, and haven’t gotten yet, is an argument, substantiated by the law, which supports the contention that it CAN’T ever happen.

    You are conflating the two – hasn’t and can’t. It doesn’t work that way. Nothing has ever happened – until it happens – and then all bets are off.

  59. Bob @ Youngstown says:

    @Spartacus,
    Regarding your response to my post on Sunday, June 23, 2013 at 18:11

    I’m just wondering why Greenwald has preferential treatment at law than I.

    If it is because he is a journalist, that he has immunity that other citizens don’t possess,
    then perhaps I will start writing for my local weekly paper and claim the same immunity.
    Oh yeah, I already do!

    Would it be OK for me to write about troop movements in Afganistan just because I decided that information should not be classified?

  60. @HarvardLaw92:

    Yeah, and Idaho State law 18-6605 says I can be imprisoned for life for sodomizing my boyfriend. Obviously a law that asserts something contrary to the constitutional limits on government is not a valid law. And in light of the aforementioned New York Times Co. v. United States, the quoted section of the law is invalid as you seek to apply it.

    If all classified data is unlawful simply by being classified data, as you suggest, there is no reason not to grant the injunction requiring the New York Times to have returned the Pentagon papers. The majority ruling was based on the premise that the unlawfulness of the publication could not be judged until after it occurred, which suggests the court foresaw some situation where the Times possession could have remained perfectly legal.

  61. Spartacus says:

    @HarvardLaw92:

    What I’m looking for from you, and haven’t gotten yet, is an argument, substantiated by the law, which supports the contention that it CAN’T ever happen.

    I never claimed it CAN’T ever happen. Here’s my original comment:

    These acts were no more criminal than most Sunday blue laws and they are prosecuted with about the same frequency. Let’s stop pretending that Greenwald has done something new and evil here.

    Your response:

    You are rationalizing because you agree with his actions.

    To which I replied:

    No, I’m being rational in concluding that a 100-year old law that, prior to Obama, had been used to prosecute a grand total of only 3 people and has never, ever been used to prosecute a journalist is not a basis for prosecuting Greenwald.

    As I correctly pointed out, prosecutions under the Espionage Act are about as frequent as prosecutions under Sunday Blue Laws – and that’s certainly not been due to a lack of journalists printing classified information that had been leaked to them.

    You have completely lost all perspective on this matter. I suspect that is because you disagree with Greenwald’s actions. No one following this story can meaningfully distinguish Greenwald’s actions from those of all the other journalists who’ve conducted investigative journalism relating to govt affairs. There’s no basis whatsoever for thinking Greenwald’s actions are unique, evil or even harmful.

    But now I need to prove that something that has never happened in the 100 years of the Espionage Act’s history CAN’T possibly happen in the future, and if I’m not able to prove that something CAN’T happen in the future, then my view that there’s no basis for concluding Greenwald would be convicted for violating the Espionage Act is just a mere rationalization that I developed because I agree with his actions?

    Whereas, you would have us believe that you’ve dispassionately looked at the law, the facts and the history of the Espionage Act and, based on your experience as a prosecutor and despite your complete and mindless lack of prosecutorial discretion, concluded that Greenwald should, and very likely could, be prosecuted for violating the Act.

    It is impossible for one to argue in good faith and continue to maintain these positions unless one is a very poor thinker.

  62. Argon says:

    Short answer: No. It would be farking waste of time and money and the prosecutors would likely have their asses handed to them by a judge. The cat is out of the bag, the horses have left the barn and we’ve got a head of an agency who clearly lied about the amount of data acquisition to Congress. The government has far more problems than prosecuting a journalist who brought the lies to light.

  63. HarvardLaw92 says:

    @Stormy Dragon:

    If all classified data is unlawful simply by being classified data, as you suggest, there is no reason not to grant the injunction requiring the New York Times to have returned the Pentagon papers. The majority ruling was based on the premise that the unlawfulness of the publication could not be judged until after it occurred, which suggests the court foresaw some situation where the Times possession could have remained perfectly legal.

    No, the majority opinion was based on the premise that, under the 1st Amendment, prior restraint requires a substantive burden, and a very steep one, which the government had not met in its pursuit of a restraining order enjoining further publication, primarily because the damage had already been done and further enjoinder wouldn’t have mitigated that damage.

    That does not imply that the same level of burden must be met in order to be criminally culpable after publication.

    Since you seem to be so fond of NYT Co., and seem to feel that, despite the law degree and years of experience, I’m an idiot simply because I disagree with this twisted interpretation of it that you have conjured up, perhaps you’d like to read what one of the actual justices who ruled in in NYT Co., Byron White, had to say on the matter:

    The fact of a massive breakdown in security is known, access to the documents by many unauthorized people is undeniable, and the efficacy of equitable relief against these or other newspapers to avert anticipated damage is doubtful, at best.

    What is more, terminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them, or that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification under the First Amendment, but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way.

    When the Espionage Act was under consideration in 1917, Congress eliminated from the bill a provision that would have given the President broad powers in time of war to proscribe, under threat of criminal penalty, the publication of various categories of information related to the national defense. Congress at that time was unwilling to clothe the President with such far-reaching powers to monitor the press, and those opposed to this part of the legislation assumed that a necessary concomitant of such power was the power to “filter out the news to the people through some man.” 55 Cong.Rec. 2008 (remarks of Sen. Ashurst). However, these same members of Congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed. Senator Ashurst, for example, was quite sure that the editor of such a newspaper should be punished if he did publish information as to the movements of the fleet, the troops, the aircraft, the location of powder factories, the location of defense works, and all that sort of thing.

    The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States, as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States, and must face the consequences if they publish.

    I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

    You’ll want to read, and re-read, that last paragraph until it sinks in. Feel free to opine that he was an idiot who had no experience with the law as well. I mean, the man was only a Supreme Court Justice, after all, and you’re Stormy Dragon!

    The simple fact is that this hasn’t been tested (YET), but nothing in the Constitution, and certainly nothing in this ruling, preempts the prosecution of a member of the press for receiving and/or publishing classified materials. Indeed, 5 of the 9 justices in NYT Co. (for the fourth time now …), including White as quoted above, opined that they would vote to uphold such a conviction were it to come before them.

  64. HarvardLaw92 says:

    @Spartacus:

    Whereas, you would have us believe that you’ve dispassionately looked at the law, the facts and the history of the Espionage Act and, based on your experience as a prosecutor and despite your complete and mindless lack of prosecutorial discretion, concluded that Greenwald should, and very likely could, be prosecuted for violating the Act.

    Why would I want to exercise prosecutorial discretion in that regard? The man violated the law. His associates in that violation are already known to me, and I’d have a strong (if not stronger) case against them than I would against him. There is no, absolutely NO, motivator for me, acting as a prosecutor, to do anything other than read the statute as constructed, make a concise argument based on the facts that he did indeed violate the act, and subsequently string him up by his toenails.

    As far as I can tell, this entire thing is premised on your belief that you have a right to know seemingly everything that the government does. I disagree with you on that premise, and the laws of the United States disagree with you about it as well. I see no greater good here to defend. I just see a guy who tossed classified documents to the wind in pursuit of his crunchy granola anti-government agenda.

    I don’t have any sense of empathy for guys like that, and certainly not for Greenwald, who seems to be scope-locked on ending any degree of governmental secrecy across the board. Frankly, he’s a loon, and he’d deserve the prison time. I wouldn’t feel bad about sending him there. I’d have a drink and raise a toast to his ass as it rode away on the bus.

  65. @HarvardLaw92:

    Ah, but Greenwald did not publish any cryptographic information, and by the administration’s own argument, he didn’t reveal any communication intelligence methods because PRISM doesn’t collect communications intelligence, only metadata.

  66. Spartacus says:

    @HarvardLaw92:

    As far as I can tell, this entire thing is premised on your belief that you have a right to know seemingly everything that the government does.

    FYI – the following is an ad hominem attack: you’re full of $hit and you’re creating a straw man in order to avoid dealing with your bad faith arguments. Neither you nor anyone else with at least a 5th grade reading level could read any of my comments anywhere on OTB and come to the stupid conclusion you’ve come to.

    Everyone who comments here does so to engage in public policy debates made in good faith. That means we don’t knowingly create straw men arguments; we don’t continue arguing a point that’s been proven patently to be nonsense just because our pride requires it; and we don’t create red herrings just to avoid dealing with the main points a commenter has made.

    You really should be embarrassed.

  67. @HarvardLaw92:

    The simple fact is that this hasn’t been tested (YET), but nothing in the Constitution, and certainly nothing in this ruling, preempts the prosecution of a member of the press for receiving and/or publishing classified materials.

    How about “Congress shall make no law … abridging the freedom of speech, or of the press”.

  68. HarvardLaw92 says:

    @Stormy Dragon:

    How about “Congress shall make no law … abridging the freedom of speech, or of the press”.

    We addressed that earlier. No constitutional right is unequivocal. Not freedom of speech and not freedom of the press.

    For example, were they to be, defamation would be a protected action. So would inciting a riot.

    And so would publishing classified information.

    But they aren’t protected.

  69. HarvardLaw92 says:

    @Spartacus:

    Judging from the number of dislikes on your comments, your peers (who you presumed to speak for) disagree with you.

  70. Dave Schuler says:

    @HarvardLaw92:

    You’ve just effectively argued that the 1st Amendment protects defamation & inciting a riot, and that no laws may be passed which criminalize either of those.

    I wonder if the DoJ and the NSA are ready to prove actual harm in open court. Isn’t that a big difference between the examples you’re giving and this case?

  71. HarvardLaw92 says:

    @Dave Schuler:

    I wonder if the DoJ and the NSA are ready to prove actual harm in open court. Isn’t that a big difference between the examples you’re giving and this case?

    No. The release of classified information to unauthorized persons is held to be harmful to the national interest on face. The degree of that harm might come into play with regard to sentencing, but it’s not a factor of guilt.

  72. Ben H. says:

    @HarvardLaw92:

    Clearly you’re right that it’s possible for Greenwald to be prosecuted; it’s possible for anyone to be prosecuted for anything. And it’s even possible that an appropriately-minded prosecutor could make a rational case against GG under 18USC§798(a). It’s also pretty clear that such a case would go all the way to SCOTUS, which means it’s not as cut-and-dry as I think you’re implying. At least two possible ways in which the prosecution could fail: the court could rule that (1) the statute as written does not apply to journalists, or (2) that it’s unconstitutional for the statute to apply to journalists. The more likely defense is (2); freedom of press arguments abound, and as you pointed out (repeatedly!), the Pentagon Papers decision did not directly address that question. I’d suggest that the Roberts court in the wake of Citizens United may show more deference to the 1st amendment than the Burger court. The only argument you’ve made regarding the statute’s constitutionality or lack thereof is that “No Constitutional right is unequivocal” which is a truism so I won’t address it further.

    You’ve spent more time on (1), arguing that the statute as written applies to journalists. If I were to argue (1), I would try to make the case that “or publishes” in 18USC§798(a) only applies to the initial transgression, the handing off of information from Snowden to a journalist. In that scenario, the journalist doesn’t perform the initial act of publishing, the leaker does the publishing by handing the information to someone in the publishing industry. The journalist is just a passive agent (like a printing press) who is the agent of publication. How else would a citizen publish something than to hand it to a journalist or other agent of the publishing industry? I’d argue that the statute as written seems squarely aimed at regulating the behavior of those who are authorized to possess the classified information in the first place, as evidenced by the language “makes available to an unauthorized person” which clearly sets up a demarcation between ‘authorized persons’ to which the statute applies and ‘unauthorized persons’ who receive the information. The statute only regulates the behavior of the authorized persons, not the unauthorized persons, so it doesn’t apply to Greenwald any more than it would to the internet server provider who transmits the classified information to your computer.

    Incidentally, I’m not a lawyer but I think your arguments in this thread have represented one of the most rational defenses of the opposing side that I’ve seen; thank you! I disagree with you completely but I respect the coherence of your defense.