Townhall.com ^ | May 27, 2013 | Michael Barone
There is one problem with the entirely justified if self-interested media
squawking about the Justice Department snooping into the phone records of
multiple Associated Press reporters and Fox News's James Rosen.
The problem is that what the AP reporters and Rosen did arguably violates the
letter of the law.
The search warrant in the Rosen case cites Section 793(d) of Title 18 of the
U.S. Code.
Section 793(d) says that a person lawfully in possession of information that
the government has classified as secret who turns it over to someone not
lawfully entitled to posses it has committed a crime. That might cover Rosen's
source.
Section 793(g) is a conspiracy count that says that anyone who conspires to
help the source do that has committed the same crime. That would be the
reporter.
It sounds like this law criminalizes a lot of journalism. You might wonder
how such a law ever got passed and why, for the last 90 years, it has very
seldom produced prosecutions and investigations of journalists.
The answer: This is the Espionage Act of 1917, passed two months after the
United States entered World War I. In his 1998 book "Secrecy," the late Sen.
Daniel Patrick Moynihan tells the story of how it came into being.
Congress was responding to incidents of German espionage before the
declaration of war. In July 1916, German agents blew up the Black Tom munitions
dump in New York Harbor. The explosion was loud enough to be heard in
Connecticut and Maryland.
The Espionage Act was passed with bipartisan support in a Democratic Congress
and strongly supported by Democratic President Woodrow Wilson.
Wilson wanted even more. "Authority to exercise censorship over the press,"
he wrote a senator, "is absolutely necessary." He got that authority in May 1918
when Congress passed the Sedition Act, criminalizing, among other things,
"abusive language" about the government.
Wilson's Justice Department successfully prosecuted Eugene Debs, the
Socialist candidate who received 900,000 votes for president in 1912, for making
statements opposing the war.
The Wilson administration barred socialist newspapers from the mails, jailed
a filmmaker for making a movie about the Revolutionary War (don't rile our
British allies) and prosecuted a minister who claimed Jesus was a pacifist.
German language books were removed from libraries, German language newspapers
forced out of business, and one state banned speaking German outdoors.
It was an ugly period in our history. It's also a reminder that big
government liberals can be as much inclined to suppress civil liberties as small
government conservatives -- or more so.
Fortunately things changed after Wilson left office. A Republican Congress
allowed the Sedition Act to expire in 1921.
Debs, who received 915,000 votes for president in 1920 while in Atlanta
federal prison, was pardoned by Republican President Warren Harding (a former
journalist) and invited to the White House.
The Espionage Act of 1917 remained on the books and was amended to cover news
media. But it was used sparingly.
Franklin Roosevelt, who served in the Wilson administration, didn't use it in
World War II. When his attorney general urged him to prosecute the Chicago
Tribune for a story three days before Pearl Harbor detailing military plans for
a possible world war, he brushed the recommendation aside.
That despite the fact that New Deal Democrats were as paranoid about the
Republican and isolationist Tribune as conservatives have been in recent times
about The New York Times.
Roosevelt did order the internment of West Coast Japanese-Americans in 1942.
But an act apologizing for that and providing restitution was passed with
bipartisan majorities and signed by Ronald Reagan in 1988.
Presidents and attorney generals of both parties have been reluctant to use
the Espionage Act when secret information has been leaked to the press because
they have recognized that it is overbroad.
They have understood, as Moynihan argues in "Secrecy," that government
classifies far too many things as secrets, even as it has often failed to
protect information that truly needs to stay secret.
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.
"Gradually, over time," Moynihan writes, "American government became careful
about liberties." Now, suddenly, it seems to be moving in the other
direction.
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