Gene Robinson has a strong piece today about the accelerating trend toward investigating and prosecuting journalists under the 1917 espionage act. That’s the law under which the AP phone records were subpoenaed and under which Fox News reporter James Rosen was secretly targeted.
The espionage act isn’t new, of course. It was used to prosecute the Rosenbergs in 1950 and Daniel Ellsburg under Nixon. Mostly it has been used to prosecute real spies – i.e. government employees who give classified material to foreign intelligence services. But it has also been used to go after government employees who have given classified material to journalists. The idea of using it to prosecute journalists and news organizations that publish classified material goes at least as far back as Nixon. CIA director Bill Casey threatened to charge five news organizations under the act in 1986. Under Obama, the act has been used six times – including against Wikileaks source Bradley Manning – and counting.
As Robinson writes:
Prosecutors examined Rosen’s phone records, read his emails and, using the electronic record left by his security badge, even tracked when he entered and left the State Department building. How did officials justify such snooping? By asserting in an FBI affidavit, according to the Post, that Rosen broke the law “at the very least, either as an aider, abettor and/or co-conspirator.”
In other words, since there is no law that makes publishing this classified information illegal, the Justice Department claims that obtaining the information was a violation of the Espionage Act.
Rosen has not been charged. Every investigative reporter, however, has been put on notice.