Government Monitoring of Journalists, Then and Now

When the Central Intelligence Agency prepared its famous 1973 compilation of dubious and illegal Agency activities known as the “Family Jewels,” it included several instances in which reporters were tracked or monitored in order to identify their sources.  While these activities were technically “approved” by senior Agency officials, they also “conflict[ed] with the provisions of the National Security Act of 1947,” presumably since they exceeded CIA’s charter and jurisdiction.

But now, in the wake of recent developments involving seizure of Associated Press telephone records and the identification of Fox News reporter James Rosen as a purported co-conspirator in a leak of classified information, such once disreputable tracking of journalists threatens to become the new normal.

“At the direction of the DCI, a surveillance was conducted of Michael Getler of the Washington Post during the periods 6-9 October, 27 October-10 December 1971 and on 3 January 1972,” the Family Jewels document stated. “In addition to physical surveillance, an observation post was maintained in the Statler Hilton Hotel where observation could be maintained of the building housing his office. The surveillance was designed to determine Getler’s sources of classified information of interest to the Agency which had appeared in a number of his columns.”

Likewise, “At the direction of the DCI, surveillance was conducted of Jack Anderson and at various times his ‘leg men,’ Brit Hume, Leslie Whitten, and Joseph Spear, from 15 February to 12 April 1972. In addition to the physical surveillance, an observation post was maintained in the Statler Hilton Hotel directly opposite Anderson’s office. The purpose of this surveillance was to attempt to determine Anderson’s sources for highly classified Agency information appearing in his syndicated columns.” (“Surveillance of Journalists: A Look Back,” Secrecy News, September 19, 2012).

Those were seemingly rare and isolated incidents.  Although “DOJ and the FBI receive numerous media leak referrals each year, the FBI opens only a limited number of investigations based on these referrals,” the FBI told Congress in 2010 answers to questions for the record.  That is due in part to the fact that the FBI deliberately avoided investigations of news media organizations.

“We have interpreted DOJ’s formal policy on obtaining information from members of the news media, codified at 28 C.F.R. §50.10, as requiring that such leak investigations focus on potential leakers rather than reporters,” FBI Director Robert Mueller told the Senate Judiciary Committee. “While this policy appropriately balances the importance of First Amendment freedoms with the strong national security interest in keeping classified information from disclosure, it necessarily limits the prosecutor’s access to the reporter who received the sensitive information. In the rare case in which DOJ issues a subpoena to a reporter for information about the source of a leak, the information is not necessarily produced.” (“FBI Found 14 Intel Leak Suspects in Past 5 Years,” Secrecy News, June 21, 2010).

But today, any news organization that successfully “solicits” disclosure of classified information evidently must consider the possibility that the records of its communications will be subject to government review, contemporaneously or even long after the fact.  In the absence of congressional intervention to restore the previous status quo, the mere prospect of such monitoring will induce a dramatic change in the landscape of national security reporting, and in the character of all contacts between government officials and members of the public.

One thin line that has not yet been crossed is the prosecution of journalists for violating the Espionage Act by reporting classified information.

A Wall Street Journal editorial yesterday suggested oddly that such a prosecution had already occurred:  “We can recall only a single such prosecution of a journalist under the Espionage Act in 95 years,” the Journal editors wrote (“A Journalist ‘Co-Conspirator’,” May 20).  But this appears to be an error, and the editors did not identify the case they had in mind.

The nearest approach to the prosecution of a reporter or a news organization for violating the Espionage Act seems to have occurred during World War II when the Chicago Tribune published a story concerning Japanese war plans based on classified intelligence.  In 1942, a grand jury was convened at the request of the U.S. Navy to weigh charges against the Tribune or its reporter, Stanley Johnston, but the grand jury was soon disbanded. No charges were brought, and no prosecution ensued.  The episode was vividly recounted by Gabriel Schoenfeld in chapter 6 of his 2010 book Necessary Secrets.  Mr. Schoenfeld indicated via email today that he was not aware of any actual prosecutions of journalists under the Espionage Act.

A timeline of leak investigations involving journalists from 2003 to the present was presented by Shane Harris of the Washingtonian’s Dead Drop blog.

The possibility of indicting reporter Seymour Hersh in 1975 was raised by then-deputy White House chief of staff Dick Cheney, as described by PBS Frontline (h/t Ryan Goodman).  It was not pursued.