By William Tucker
Investigating members of the news media is often bad news for any presidential administration, even if a law was broken. In this most recent case, The Department of Justice secured a warrant to obtain phone records for reporters and editors who work for the Associated Press news agency and one reporter employed by Fox News. What is surprising about this investigation is the use of the Espionage and Censorship chapter of USC Title 18. This section was first passed by congress in 1917, and has been amended several times. In fact, the law is still often referred to as the Espionage act of 1917. This begs the question, why on earth would the Justice Department use the espionage act to go after leaks to the media? Yesterday in the National Review Online, Michael Barone took on this very question and did a decent job recounting the history of this rarely employed provision. Barone points out that the Obama administration has now used the law six times – more than twice of all of his predecessors combined since the laws passage. From my perspective, however, there is a good reason law enforcement and prosecuting attorney’s don’t like to use this law.
Truth be told, I’m not a big fan of op-ed publications, but though the National Review Online is a conservative publication, I find it hard to resist anything written on this particular law. Countering foreign espionage in the U.S. is difficult, and though laws like the Espionage Act of 1917 would seem to be an aid to the counterintelligence discipline, it is difficult to prosecute under. As such, it is often avoided in favor of other laws that are easier to prosecute. As Barone points out in his article, the Espionage act seems to run counter to the first amendment. Notably, the act was controversial even when it was pushed through congress. Controversy and civil rights are hot button issues in the U.S., though most provisions of the act are difficult to prosecute regardless of public opinion because they require that the government prove that the accused engaged in stealing the classified material for the purpose of harming the U.S. Simply stating that the release of the information is detrimental to national security is largely insufficient, one must prove beyond the intent to collect classified information and show that the intent was to inform a foreign government for the purpose of harming the U.S. Such a legal attempt to prosecute would likely require a release of classified information proving the allegations in a public trial – something the government is hesitant to do.
One key difference in the Rosen warrant is that it refers to 18 USC Chapter 37 section 793 (g). In this case, the utility of the information to a foreign government for the purpose of harming the U.S. may not be required depending on interpretation. Section 793 (g) states, “If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.” The problem with using this section is that it could apply to the media at large. Again, we come back to the question of why this particular act was used when other laws could be applicable. It is possible that the prosecution may ultimately choose another path for an indictment, but the use of such a controversial act is certainly notable. One thing is for sure, the act hasn’t become more palatable with age.
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