Washington Post reporter Barton Gellman said Tuesday he’s aware of the legal risks that come with his reporting on Edward Snowden’s stolen documents.
“I’ve certainly given a lot of consideration, so has the Washington Post, to legal risks and exposure and staying on the right side of the line,” Gellman explained during a panel discussion at the Georgetown University Law Center. “And I don’t rule out that there is legal exposure either criminally in an unlikely case or rather more likely civil compulsion. Just because Edward Snowden has outted himself doesn’t mean every part of my interaction or my reporting around these documents has been disclosed or I’d be willing to disclose any more of it.”
While Attorney General Eric Holder has recently said the U.S. government won’t prosecute American journalists doing their job, Gellman cautioned “there’s lots of wiggle room there” for the Justice Department to continue investigations into the media.
He noted Director of National Intelligence James Clapper’s prepared testimony last month to the House and Senate intelligence committees threatening legal action against Snowden and his “accomplices.”
“In context it could mean nothing else than the journalists who are writing the stories,” Gellman said.
Faced with so much legal scrutiny — Gellman said he’s been told his phone records were obtained at one point through a National Security Letter — he said his reporting process now requires more time dealing with “technical and operational security.
If this is true, the NSL in question would need to have been issued pursuant to 18 U.S.C. §2709, the only NSL statute providing for access to telecommunications records. But there are at least two ways in which such an NSL would appear to strain the limits of that authority.
First, §2709 may only be used in connection with an “authorized investigation to protect against international terrorism or clandestine intelligence activities.” Assuming Bart is not suspected of plotting to blow up any airplanes, it seems probable that we’re dealing here with an investigation of leaks of classified information to press. Yet such leaks—even when they clearly involve a violation of the law—do not obviously satisfy the traditional definition of “clandestine intelligence activities.”
The FBI’s own operation manual defines “intelligence activities” as “any activity conducted for intelligence purposes or to affect political or governmental processes by, for, or on behalf of a foreign power.” A report on NSL authorities from the Congressional Research Service characterizes them as tools to “protect against international terrorism or foreign spying,” where “clandestine intelligence activities” and “foreign spying” are clearly understood to be equivalent phrases. Notwithstanding a few wild speculations, we’ve seen no real evidence to indicate that Edward Snowden acted “by, for, or on behalf of a foreign power.”
It’s possible, of course, that the instance Gellman is referencing relates to a pre-Snowden leak investigation. A 2008 Inspector General report on NSL abuses references a case in which the phone records of at least two unnamed Washington Post reporters were improperly obtained, and it would not be terribly shocking if one of them had been Gellman.
Even assuming a media leak investigation has the appropriate “foreign power” nexus, there’s a second potential problem—though this one may be a problem with the underlying statute. A clause added to the NSL provisions by the USA Patriot Act—to compensate for the elimination of the requirement that NSLs target suspected agents of a foreign power—provides that they may be used for an authorized investigation “provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States.” The sole basis for seeking Gellman’s records would, of course, be his First Amendment–protected newsgathering and reporting activities.
The obvious rejoinder here is that the investigation to which Gellman’s phone records were relevant was not an investigation “of” Gellman, but rather of Snowden (or some other source), whose misappropriation and disclosure of classified documents is not protected by the First Amendment. The new language is thus inapplicable so long as Gellman himself is not the subject of the investigation. Note that no such loophole would be available if the government had wished to “search or seize” documents related to Gellman’s journalism, since the Privacy Protection Act of 1980 mostly bars such seizures unless the journalist is the one suspected of criminal conduct. (It was precisely to circumvent this prohibition that the Justice Department notoriously claimed Fox reporter James Rosen was engaged in a criminal conspiracy with one of his sources—only to later insist to an outrage press that they’d never had any intention of charging him.)
Since current law does not count the compelled production of phone records as a “search or seizure,” a strictly literal reading of the text would appear to permit that loophole here—but it is surely worth noting that this renders the protective clause in the NSL statute rather pointless. After all, an investigation of a U.S. person conducted solely on the basis of First Amendment protected activity should never be opened in the first place.