Matt Cooper, who was threatened with jail time during the Valerie Plame case, writes today that laws can only go so far to protect journalists from government intrusion:
This is one of those areas where custom carries more weight than statute, the custom being the general good sense of prosecutors not to go after reporters for their information....The current shield law being considered by Congress has lots of national-security exceptions and probably wouldn’t have helped me or the current subjects, the AP and James Rosen of Fox News. It’s better than nothing from where I sit, but it also means that no court will ever grant unconditional protection to reporters to hide their sources. Prosecutors and others are always going to have the opportunity to persuade a court that national security overrides First Amendment issues. The best we can count on is that prosecutors will use their powers with discretion, especially since in most national security cases they wind up not prosecuting for any leak itself but for false statements to the FBI.
For a contrasting opinion, Cooper recommends reading Walter Pincus, one of our best and longest-serving national security reporters:
When First Amendment advocates say Rosen was “falsely” characterized as a co-conspirator, they do not understand the law. When others claim this investigation is “intimidating a growing number of government sources,” they don’t understand history.
The person or persons who told the Associated Press about the CIA operation that infiltrated al-Qaeda in the Arabian Peninsula, and Kim — or someone else — who informed Rosen about North Korea, were not whistleblowers exposing government misdeeds. They harmed national security and broke the law.
The White House Correspondents’ Association board issued a statement May 21 saying, “Reporters should never be threatened with prosecution for the simple act of doing their jobs.” But it admitted, “We do not know all of the facts in these cases.” The board added: “Our country was founded on the principle of freedom of the press and nothing is more sacred to our profession.”
I worry that many other journalists think that last phrase should be “nothing is more sacred than our profession.”
Taken together, these pieces strike the right balance. Cooper is right that journalists are customarily left alone, and the government would be wise to take this custom seriously. Pincus is right that journalists customarily take care not to blow legitimate intelligence operations just for the sake of a few sentences in a routine story, and they'd be wise to take this custom seriously.
Rosen and the AP should have been more careful, and their actions deserve more scrutiny than their fellow reporters have given them. At the same time, the government overreached when it seized their phone records. It overreached in the Rosen case because Rosen's records weren't absolutely necessary to find the leaker, and it overreached in the AP case by phrasing its subpoena so broadly. That deserves scrutiny of its own. There's no tension in believing both of these things at the same time.