As iconic leaker and anarchist anti-hero Bradley Manning’s trial gains momentum at Fort Meade, the Department of Justice (DOJ) is under attack for its probe into classified leaks to the Associated Press (AP) related to CIA operations in Yemen one year ago.
AP President and CEO Gary B. Pruitt describes an “overbroad collection of telephone communications” among “scores of AP journalists.”
Pruitt indicates that the collection includes “more than 20 separate telephone lines assigned to AP journalists and offices, including cell and home phone lines.” That’s not really scores. Scores would be forty or more (every elementary student since the Gettysburg Address understands a score to be 20). If each reporter has just two lines – home and cell – then the probe focuses on about 10 reporters. Since AP claims about 2,100 journalists: 10 reporters is .4% of AP’s phone lines. Perhaps not the “’massive and unprecedented intrusion’” Pruitt describes.
It’s likely the DOJ has a pretty good idea of who its leaky government officials were talking to when they began the wiretaps.
Title 18 of the United States Code (USC), Section 798, Disclosure of classified information, is clear: “Whoever knowingly and willfully communicates . . . to an unauthorized person, or publishes . . . any classified information . . . concerning the communication intelligence activities of the United States or any foreign government . . . . shall be fined under this title or imprisoned not more than ten years, or both.” Section 2 of Title 18 explains that “whoever commits an offense . . . or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” By this standard, if the journalists in question induced the source to divulge classified information, the journalist might be charged – not as an accomplice, but as a principal to the crime. Likely, the AP is not earnest to adopt that position, and that position is not one protected by the First Amendment.
So how can the sorts of leaks currently under scrutiny happen? Two ways: journalists encourage or the source volunteers.
Journalist encourages
Encouraging one with a security clearance to breach that public trust is not gathering news. Actually, that would be encouraging a crime. Gather news – yes. Report it – sure. Just do not induce divulgence, at least not classified information.
Source volunteers
Those providing classified information illegally to the press have no constitutional protection. So divulge at your own risk. And, really, why would a cleared individual want to divulge classified information? There are three simple reasons: ego, self-righteousness, apathy.
Apathy
The leakers just do not care one way or the other. They have no respect for the classified information at their disposal and lack the intellectual capacity to understand that what may seem pretty innocuous by itself might represent part of a larger highly sensitive puzzle.
Self-righteousness
The Bradley Manning phenomenon. The individual thinks, “I know of some illegal activity that has taken place. It is my ethical responsibility to leak classified information to break the story so justice can be served.” This individual is ostensibly willing to sacrifice himself for some greater good, until sentencing. Then he is no longer willing to make the self-sacrifice necessary to adopt the role of martyr he had once imagined himself.
Ego
In these cases, the informant gets a rise from being the one with whom the journalist wants to engage. These informants see themselves climbing their imaginary Jacob’s Ladder to even higher positions. They are the pesky little golden boys and girls surrounding a high level leader who is engaged in some overt or clandestine high-profile operations or politics. These guys confuse their privileged and often incidental role as simple assistant with a self-imposed sense of importance. They leak because they believe it might build their credentials, give them more access to the press, and make them sought after (and it will). Their motivations are all about themselves, not the second and third order effects. Or, maybe their principal encourages them to leak for strategic communication or political purposes: the assistant complies, encouraged by the great responsibility thrust upon him or bedazzled by stars. No matter how that leak happens, we find ourselves back in 18 USC terrain.
I do not see DOJ’s probe as any assault on the Constitution, though that plays well while White House knees buckle against IRS and Benghazi thrusts. But there are reasonable considerations we can draw from the Department of Justice and the Associated Press:
First, if you associate with criminals – in this case, those who illegally divulge classified information in violation of the United States Code – anticipate that you and your organization may very well come under powerful scrutiny. From priest to journalist, expect the same. Encourage violation of the United States Code and you may very well suffer the same penalties as the one you induce.
Second, remember that when entrusted with classified information, your role is not to decide when to release it, unless you have declassification authority. You may have some incredibly troubling information about a high profile topic, or about a topic that, if exposed to the public, will quickly become high profile. Bear the burden. That’s where the sacrifice we all talk about comes in. Your mental well-being does not trump national security. If you genuinely believe something illegal has happened, report it judiciously. If reporting the apparent crime requires migration into the classified world, talk to the chain-of-command, then talk to the Inspector General, up to the highest levels if necessary: they have appropriate clearances and authority to access the classified information and investigate.
The AP’s constitutional rights really are not at stake here. Indications are that the probe is not about indicting journalists; the investigation is about determining which government officials leaked classified information to civilians.
Certainly, the DOJ probe might scare informants from leaking in the future and, thus, hamper the press’s ability to gather and report news. But cleared individuals shouldn’t be leaking information, and the AP shouldn’t depend on security breaches to produce the news.
