Here's what I thought you'd like to hear about today:

1. National Security, Leaks, and Investigations - Reporters and their Sources under the magnifying glass

Listen
Subscribe
Add Wizbang Podcast to iTunes

National Security, Leaks, and Investigations

Brian Ross, ABC news chief investigative reporter, said last week that a source told him that his phone records were being collected as part of a leak investigation. From the ABC news Blotter, we read:

A senior federal law enforcement official tells ABC News the government is tracking the phone numbers we (Brian Ross and Richard Esposito) call in an effort to root out confidential sources.

"It's time for you to get some new cell phones, quick," the source told us in an in-person conversation.

ABC News does not know how the government determined who we are calling, or whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.

Stop the tape. Why is he jumping to the conclusion that this has anything to do with any alleged and unconfirmed NSA program? Isn't it just remotely possible, and far more likely, that Ross's is eagerness to get classified information out of secret government programs lead to a government investigation? Don't we want the government opening an investigation into the conspiracy to leak classified information? And shouldn't that investigation also look at phone records from the leakers to the leakees? If I were investigating illegal leaks, that's where I would start. And it wouldn't take an NSA program to do it.

We all know that ever since Dana Priest of the Washington Post was awarded the Pulitzer Prize for disclosing classified information about the so-called secret prisons in Europe, every other journalist was calling potential sources at the CIA, NSA and the Pentagon, in the hopes that someone, anyone, will compromise their position by leaking information damaging to national security. Get that Pulitzer, quick!

Brian Ross was on the NPR radio program, On The Media this weekend. He is ringing the alarm bells about the threat to reporters, "just doing their jobs". Right. Disclosing classified information is their job. It's also illegal. And Pulitzer material. How to reconcile the two? Listen to this clip where Ross tries to do that in a conversation with Mike Pesca of On the Media.

Play clip.

Stop the tape again. There is nothing mentioned in the USA Today story about phone taps. The newspaper referred to calling records. Who called whom, when, how long, how often. Not the sound, not the audio. The interviewer is wrong on this.

Play clip.

I hate the conflation of stories like this. They assume that their experience is an example of some other story, regardless of evidence, or lack thereof. And the audacity of these reporters thinking that the investigation of leakers will not seek out those to whom they are leaking classified information about national security in a time of war. Idiots.

Ross was also on this weekend's Reliable Sources on CNN with Howard Kurtz. Howie was more skeptical of Ross, challenging him on the legality issue. Listen to this clip of the two in an exchange. Thanks to Expose the Left for the video.

Play clip.

Listen now as Kurtz and Ross start pretending to be lawyers on TV, giving their legal opinion on warrants. Listen to this set of howlers.

Play clip.

Pulling phone calling detail records doesn't involve the Patriot Act, or a grand jury, or even a search warrant from a judge. It has nothing to do with the so-called "sneak and peak" warrants for drug dealers. Ross is blowing smoke here, and he should be ashamed. ABC News clearly doesn't watch the NBC series Law and Order. Everything I know about the law comes from watching that show.

The investigation that Brian Ross is describing is not all that different from something you might see on Law and Order. I watch that show all the time. I never seem to get tired of the same format every episode. First comes the discovery of a grizzly murder scene by some average citizen. Then the detectives show up, and make some silly wise crack. Pretty soon, the head detective tells the line guys to go "check the LUD's" on the deceased to see who he was talking to. LUD's stands for Local Unit Details, which is the term the telephone company uses for the phone records. There is no mention of a warrant. That comes later, after the detectives break into the suspect's apartment without a warrant and discover the murder weapon. The fact is, there is no expectation of privacy on public records that you disclose to the phone company when you use their services to make a call. It is therefore not unreasonable for an investigation into leaks of classified information to "Pull the LUD's" and find out who the potential leaker is taking to. At it is no surprise that the leaker is talking to a reporter. Do they expect to defend their actions by saying that they are trying to win a Pulitzer Prize?

Attorney General Alberto Gonzales was asked about the investigation of journalists on This Week with George Stephanopoulis on Sunday. Here's what he had to say.

Play clip.

I find it fascinating that journalists feel they are above the law in this way. It is clear that disclosing classified information, especially information that damages national security in a time of war, is illegal. When a source tells a journalist the information, it's illegal. When the journalist tells his readers, it is not suddenly legal. It's still illegal, and the government is duty bound to investigate.

Jonathan Adler in the Volokh Conspiracy has a different viewpoint. He writes:

Some conservatives seem eager for the Justice Department to prosecute the press for reporting on leaked classified information. Former Reagan Administration official Bill Bennett said on his radio show such reports were not worthy of prizes but "worthy of jail."

Today, media attorney Michael Berry and I have an article on National Review Online urging conservatives to get off the press prosecution bandwagon. In our view, such prosecutions -- even if constitutional -- would be unprecedented and unwise. (And I'm less convinced of some of the legal arguments under the Espionage Act than I was a few weeks back.)
Here is our bottom line:

Publishing classified information is not the same thing as stealing state secrets or spying for the enemy. There is a distinction between clamping down on government employees who leak sensitive national security information and targeting the reporters who publish those leaks. It is one thing to question the wisdom or propriety of publishing sensitive national-security information, or to allege media bias. But it is quite another to call for the criminal prosecution of journalists for reporting on matters of public concern, even when those matters implicate national security. Not every embarrassing or unfortunate disclosure is a criminal act.

Sensitive information should be treated sensitively, even by journalists. Conservatives, however, should be wary of novel applications of vaguely worded criminal statutes, particularly in the face of clear constitutional text. If the Justice department were to go ahead and prosecute journalists for reporting on such information, it would unduly hamper press freedom and set a dangerous precedent that conservatives would come to regret.

I have a link on the Wizbang Podcast blog to the full article.

I think the proper balance can be struck between prosecution of all reporters who are soliciting leaks and then publishing them, and a focus on prosecuting the leakers themselves. After all, it is the leakers who sign documents swearing to keep classified information secret. Reporters have an implied protection from the first amendment guarantee freedom of the press provision. Perhaps we need to have everyone step back a few steps and realize which party in this disclosure has greater culpability. And to have the press think a little more about the consequences of their actions. The first step is to revoke that Pultizer Prize, in my opinion.