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Opinion

Don't blame journalists if whistleblowers can't report wrongdoing without reprisal

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Opinion,Op-Eds,National Security,NSA,Edward Snowden,Mike Rogers

For those of us who work in the national security arena, maintain security clearances and interact with those whose spend each day working to protect our country's most vital interests, there has been much to criticize concerning how Glenn Greenwald and his media compatriots have handled the treasure trove of classified information provided to them by Edward Snowden.

On more than one occasion, I have publicly questioned the extent to which Greenwald’s stories served a compelling public interest that justified exposure of classified information or whether they merely existed as proverbial “click bait” to drive readership with misleading headlines. I have just as regularly critiqued the actions taken by Snowden, whom I believe remains criminally liable for his actions (whatever their noble merits) and should be held accountable as a result.

In short, no one would confuse me for an adoring fan of either man. If anything, I have been accused on multiple occasions of being a “shill” for the National Security Agency (something I personally find humorous, given that my legal practice regularly involves challenging security decisions made by the NSA and other intelligence community agencies).

Yet I feel compelled to respond, at least in part, in defense of Greenwald with respect to recent remarks made by House Intelligence Committee Chairman Rep. Mike Rogers, R-Mich. In a recent letter to the editor of the Washington Times, Rogers sought to draw a line between what he views as “legitimate journalism” and “those who simply sell their access to stolen classified government information for personal profit.”

Rogers asserts that simply including some information in a newspaper article does not insulate an individual from liability if they are simultaneously selling that information for personal profit. This is not the first time he's sought to make this point. On Feb. 4, during an unclassified intelligence committee hearing, he pressed FBI Director James Comey on the same topic. Comey, for his part, declined to definitively state whether receiving profit for engaging in newsgathering activity that involved classified information would constitute a crime.

To be clear, if Greenwald (or any journalist, for that matter) was taking the classified documents stolen by Snowden and selling it to foreign governments, terrorist organizations or even private organizations affiliated with either type of group, then Rogers’ point would have some merit. In such a situation, the fact Greenwald was also publishing that information in media articles would not protect him from criminal culpability for the contemporaneous act of selling classified information to foreign entities for no obvious journalistic purpose (and which could reasonably be expected to endanger U.S. national security).

But there has not yet been any public claim by a federal agency that Greenwald has done any such thing. He has, to be sure, used the materials provided by Snowden to help launch a new media venture, First Look Media, and is reportedly in talks for deals on a book and movie rights.

None of these facts change the legal parameters of Greenwald’s actions. He was paid, as a journalist, to write stories that relied upon classified information, just like every other journalist in this country is paid to write stories. After all, media outlets require revenue to survive and pay their staffers to write stories that their readers will pay to see. Nor is there any distinct importance attributed to making book or movie deals; there is a rich history of journalists (including the iconic Bob Woodward) making similar deals in the past, including relying upon classified information provided by sources. None of those individuals were accused of committing criminal actions for personal profit.

The overarching motive behind Rogers’ arguments has been clear and, to an extent, has some legitimacy: He is clearly concerned about exposure of vital national security secrets and wishes to prevent the leaking of those secrets to those who would do this country harm. However, going after Greenwald — for all his flaws and faults — is, with all due respect, the wrong path to take and unnecessarily implicates vital First Amendment interests. The leaks will not end by threatening journalists.

If Rogers wants to prevent future security breaches, the ball is largely in his court. The Whistleblower Protection Enhancement Act of 2012 was designed to resolve, among other things, the glaring gaps in protection for Federal whistleblowers. According to media reports, however, it was Rogers in particular who insisted on removing the provision that expanded whistleblower protection to national security employees, including contractors. The final version of the bill, which President Obama signed into law, left that gap in coverage in place.

Even if Snowden had tried to use the limited means available to him to internally report his concerns (something I have repeatedly said he should have done), he would have been defenseless against any retaliation from the NSA.

If Rogers wants future leakers to use the internal process rather than running straight to journalists such as Greenwald, he has to work to ensure they can do it without career-ending reprisal. Until that happens, nothing will change.

Bradley P. Moss is a national security attorney in Washington. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
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