You can see the whole segment here. But suffice it to say that Hayes' gloating characterization of Jake Tapper of ABC News as a "bulldog" tips off his feelings on the issue. Hayes of course took the opportunity mention Bradley Manning (whose own defense won't even claim his innocence) to throw some red meat to the anarchists, despite his self-proclaimed "conflict" on the case. He also invited his colleague at The Nation to sell his books on this segment. But I digress. Let's get to the issue.
The issue is the Obama administration's prosecution of six federal employees under the Espionage Act for leaking classified information. Jake Tapper - who, as a journalist has a singular focus on getting more information, is not necessarily at fault - asked in the White House press briefing why the administration was praising brave journalists abroad and prosecuting leakers - he termed them "whistleblowers" - at home. But Chris Hayes, on his show, wasn't playing journalist. He was playing analyst. Throughout the entire segment, neither he nor any of his guests caught onto some essential facts before accusing the President of "chilling" free speech.
Let's ignore for a moment the media's own role in chilling free speech. Let's forget for a while that this very media that is now lamenting about the Obama Administration's prosecutions beat the war drums despite public evidence that Iraq was not a threat to the United States during George W. Bush's rein.
First of all, the Espionage Act is not an overarching punish-the-whistleblower mechanism that Hayes seems to intimate. It allows the government to charge individuals under a very specific set of circumstances, upheld by the Supreme Court. Specifically:
It made it a crime:Basically, the Espionage Act only applies in cases of divulging classified information that interferes with military operation, and the government has to prove intent in order to successfully prosecute. In other words, simply divulging classified information about the military or orders is not enough to be prosecuted under the Espionage Act. The disclosure has to specifically interfere with operating the military or the success of a specific mission. In contrast with the British Official Secrets Act, which allows their government to prosecute individuals for any disclosure of any classified information, the government of the United Sttates can't just prosecute anyone for divulging any classified information under the Espionage Act. The people who are being prosecuted under the Espionage Act are not journalists; they are people within the government who are suspected of divulging classified information.
- To convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies. This was punishable by death or by imprisonment for not more than 30 years or both.
- To convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States. This was punishable by a maximum fine of $10,000 or by imprisonment for not more than 20 years or both.
And just what are the implications if the government is not able to protect certain information about specific operations of the military? If the plan to take out bin Laden was told to news outlets and as a result bin Laden were still alive today, who among us wouldn't want there to be dire consequences for that person?
There is a role for journalists in getting information out, and that's why they are protected by freedom of the press under the First Amendment. There is, however, also a daunting responsibility of the president and the administration to protect certain classified information. While journalists have the right to learn and publish, employees of the government are not at liberty to decide on their own what what to get out. The idea that we live in an utopia where nothing need be classified and protected is as dangerous as the countervailing idea that everything the government does is classified and protected. The freedom of the press does not equal the liberty to tell for federal employees.
Still, whistleblowers play an important role in countering governmental power and its potential abuse. But everyone who discloses any classified information to the press is not automatically a 'whistleblower.' Blowing the whistle needs to have a specific purpose - in fact, specifically the purpose of righting or informing the public of an injustice committed by the government. Going public with information regarding an illegal program and who put the policy in place (say, waterboarding and decision makers) is whistleblowing, but passing on the names and photos of specific agents to the press adds nothing to the cause, compromises the other legitimate operations the same agents may be involved in, and is not whistleblowing.
Jake Tapper, and by supporting his point, Chris Hayes, made another serious mistake when they conflated the Obama Administration's prosecution of accused leakers to the information suppression by governments of Syria and Iran. First and foremost, I am not aware of a law akin to the Freedom of Information Act in Syria, are you, Mr. Hayes? Fiscal 2010, the president's first fiscal year in office and the latest for which data is available, full compliance with FOIA requests - i.e. releasing unredacted documents in full - increased for the first time in 10 years (at 56%), and 93% of FOIA requests got either full or partial release of documents. Perhaps Hayes also knows something we don't about an independent judiciary in Syria and Iran where the government can be taken to court to decide whether it should be forced to release something. Maybe we missed the news about President al-Assad opening up their presidential visitors log for all to see.
Or maybe it is simply outrageous and inexcusable to conflate what's going on in the middle east and the perils faced by journalists there with any legal prosecutions here and call both situations the "national security state." Maybe not every impediment to a "good scoop" (on classified information) is the same as being shot.
It is one thing to rigorously pursue disclosure in government business, and work within a framework of law and democracy to expand that framework in the public interest. It's quite another - and more than irresponsible - to equate the leak-prosecutions of individuals with their right to defend themselves in a court of law secured with open war on citizens and journalists in the cross-hairs of totalitarian regimes. It dishonors the memory and the sacrifice of the brave journalists who risk and give their lives in those regions by comparing their difficulties with a reporter sitting in a fancy press briefing room throwing out questions at the president's press secretary. It makes a mockery of the injustice facing those journalists on the frontlines there to equate it with legal prosecutions of leakers here. Perhaps more sadly, it harms the very effort to make our government more open when comparisons are taken to the level of the absurd.