In the AP and Rosen Leak Cases, Both Sides Have Made Mistakes

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


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.

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate