Tags

, , ,

Last week, Rep. Peter King of New York said on Fox News that the government should consider taking legal action against Glenn Greenwald, the blogger for the Guardian who reported Edward Snowden’s revelations about the scope of the National Security Agency’s surveillance of Americans.  King said that legal action was necessary because Greenwald had threatened to disclose the identities of covert CIA agents. (In fact, he hadn’t.)

Yesterday, Rep. King got back-up from Marc Theissen, an op-ed writer for the Washington Post, who argues that the government could prosecute Greenwald under a statute – never previously applied against the media – that makes it a crime to publish classified information “concerning the communication intelligence activities of the United States.” The statute reads:

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.

18 U.S.C. § 798.  In other words, the statute makes it a crime to knowingly and willfully publish any classified information concerning the communication intelligence activities of the United States, on pain of ten years imprisonment.

The information that Greenwald revealed was certainly classified, and it concerned “the communication intelligence activities of the United States.” So are Theissen and Rep. King right? Are Greenwald and the Guardian federal felons?

The short answer is probably not, because the statute contains a requirement of “willfulness.”  To prove that Greenwald acted willfully, the government would have to demonstrate beyond a reasonable doubt that he acted “with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.” Bryan v. United States, 524 U.S. 184, 191-92 (1998).  For all we can see, Greenwald acted in the time-honored tradition of investigative reporting.  It would be next to impossible for the government to prove that he knew his conduct was unlawful.

Even if the government could somehow show that Greenwald had an “evil-meaning mind,” its prosecution would fall to the First Amendment.  As the United States Supreme Court has declared, “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102 (1979).   If a newspaper “lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” Id. at 103.

Theissen argues that the protection of what he calls “signals intelligence” is such an interest.  But First Amendment cases are not decided on mere classifications of what kind of information is at stake.  The government would have to show that punishing Greenwald for publishing this information is necessary because of an interest “of the highest order.” It cannot do so. After all, the president last week acknowledged that the NSA revelations were leading to a salutary dialogue:  “I welcome this debate.  And I think it’s healthy for our democracy.”

In 1971, the Supreme Court famously ruled that the New York Times could not be prohibited from publishing the Pentagon Papers, a classified history of the Vietnam War leaked by Daniel Ellsberg.  Before the case reached the Supreme Court, district judge Murray Gurfein had denied an injunction against publication, ruling in part:

“I find that there is no reasonable likelihood of the Government successfully proving that the actions of the Times were not in good faith, nor is there irreparable injury to the Government. This has been an effort on the part of the Times to vindicate the right of the public to know.  It is not a case involving an intent to communicate vital secrets for the benefit of a foreign government or to the detriment of the United States.”

While the Supreme Court’s ten-sentence per curiam decision affirming the denial of the injunction did not reach this question (and Justices White and Stewart, in concurrence, expressed no difficulty with a prosecution of the Times), Judge Gurfein’s words could easily be said of Greenwald and the Guardian.  Even senators and congressmen have proclaimed themselves surprised that the NSA was collecting vast troves of data about whom Americans are calling and when, as well as their online activities. The revelations, as most observers would acknowledge, have led to an important debate about just how far the government’s surveillance capabilities should extend, vindicating “the right of the public to know.”  The government may be able to prosecute Edward Snowden, but it should leave Greenwald and the Guardian alone.

If you have questions, please contact Jeffrey J. Pyle , a partner in Prince Lobel’s Media Practice. You can reach Jeff at 617 456 8143 or jpyle@PrinceLobel.com.

Jeffrey J. Pyle

Jeffrey J. Pyle