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Could Greenwald Be Prosecuted for NSA Leaks? Terrifyingly, It's Possible

An espionage law from WWI criminalizes publishing classified information.

In case you forgot to record Meet the Press this week, host David Gregory has set off a veritable shitstorm around press freedoms. In an interview with the Guardian’s Glenn Greenwald regarding Edward Snowden and the NSA surveillance leaks, Gregory fired off a banshee of a closing question:

To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald be charged with a crime?

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Poor David. Greenwald blasted his host for musing “about whether or not other journalists should be charged with felonies,” and later tweeted:

Who needs the government to try to criminalize journalism when you have David Gregory to do it?

— Glenn Greenwald (@ggreenwald) June 23, 2013

There’s already been plenty of ink spilled over Gregory’s revealing phrasing and toxic logic. WaPo’s Erike Wemple, in particular, shredded Sir David for his “how long have you been beating your wife” line of questioning. Andrew Sullivan dismissed Gregory and his press club friends as an obsolete “coterie.” And Gregory’s own legal foibles—namely waving a high-capacity ammunition clip on-air in December, a certifiable crime in DC where such clips are banned—have also been trotted out as delectable irony.

But there’s a wider significance to this beyond the is-David-Gregory-a-shill angle. Greenwald hit on the deeper vein before he signed off: extrapolating from Gregory’s question, Glenn contends that if such a premise flies, then “every investigative journalist in the United State who works with their sources, who receives classified information, is a criminal.”

This is precisely what a number of vocal members of Congress would like to see happen. There are those who would prosecute not just leakers themselves, but also journalists for communicating classified information to the public. And one vague, pre-1920 law may make this sort of prosecutions possible, even if that option hasn’t yet been exercised by federal prosecutors.

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In a June 12 Fox News spin session, New York’s Rep. Peter King called for Greenwald’s head. King lectured Megyn Kelly, “No right is absolute. And even the press has certain restrictions,” before emphasizing that “when you have someone who has disclosed secrets like this and threatens to release more, then to me, yes, there has to be—legal action should be taken against him.”

This sort of hawkish response to uncomfortable journalism isn’t new. In particular, it’s not new for King. As The Atlantic Wire chronicles, Rep. King reached a similar book-throwing frenzy over the Cablegate release by WikiLeaks in 2010, when he asked Attorney General Holder to go after Julian Assange and sought to designate WikiLeaks as a terrorist organization. In 2006, King called for the prosecution of the New York Times over a story it published regarding the CIA’s Swift program to track terrorists’ finances.

King bases his war cries on the same 96-year-old statute under which federal prosecutors have indicted Snowden and NSA whistleblower Thomas Drake before him: the Espionage Act of 1917. In particular, Section 798 of the Espionage Act makes it a federal crime to publish classified information, including details “concerning the communication intelligence activities of the United States or any foreign government.”

As a recent WaPo op-ed highlights, this broad criminalization of publishing almost certainly covers Greenwald’s actions. While there has never been a successful prosecution of a journalist under the Espionage Act, the statute is so broad that many legal scholars are unsure just how far the damn thing goes.

In testimony before the House Judiciary Committee in 2010, American University law professor Stephen Vladeck pointed out that “the text of the [Espionage] Act draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defense information [….] Whether one is a journalist, a blogger, a professor, or any other interested person is irrelevant for purposes of the statute.”

Vladeck also points out that this section of the Espionage Act carries no burden of intent to harm national security. To be convicted of espionage under this most surgical of laws, a journalist just needs to publish information with the knowledge that the information is classified.

Maybe that’s why David Gregory posed his question as a “should” rather than a “could.” Holder has insisted that no reporters will be prosecuted “for doing their jobs” under his watch. But based on a plain-text glance at our reigning espionage statute, it seems like just a matter of time before an investigative reporter trades the press box for the defendant’s bench.