Michael Barone

There is one problem with the entirely justified if self-interested media squawking about the Justice Department snooping into the phone records of multiple Associated Press reporters and Fox News's James Rosen.

The problem is that what the AP reporters and Rosen did arguably violates the letter of the law.

The search warrant in the Rosen case cites Section 793(d) of Title 18 of the U.S. Code.

Section 793(d) says that a person lawfully in possession of information that the government has classified as secret who turns it over to someone not lawfully entitled to posses it has committed a crime. That might cover Rosen's source.

Section 793(g) is a conspiracy count that says that anyone who conspires to help the source do that has committed the same crime. That would be the reporter.

It sounds like this law criminalizes a lot of journalism. You might wonder how such a law ever got passed and why, for the last 90 years, it has very seldom produced prosecutions and investigations of journalists.

The answer: This is the Espionage Act of 1917, passed two months after the United States entered World War I. In his 1998 book "Secrecy," the late Sen. Daniel Patrick Moynihan tells the story of how it came into being.

Congress was responding to incidents of German espionage before the declaration of war. In July 1916, German agents blew up the Black Tom munitions dump in New York Harbor. The explosion was loud enough to be heard in Connecticut and Maryland.

The Espionage Act was passed with bipartisan support in a Democratic Congress and strongly supported by Democratic President Woodrow Wilson.

Wilson wanted even more. "Authority to exercise censorship over the press," he wrote a senator, "is absolutely necessary." He got that authority in May 1918 when Congress passed the Sedition Act, criminalizing, among other things, "abusive language" about the government.

Wilson's Justice Department successfully prosecuted Eugene Debs, the Socialist candidate who received 900,000 votes for president in 1912, for making statements opposing the war.

The Wilson administration barred socialist newspapers from the mails, jailed a filmmaker for making a movie about the Revolutionary War (don't rile our British allies) and prosecuted a minister who claimed Jesus was a pacifist.

German language books were removed from libraries, German language newspapers forced out of business, and one state banned speaking German outdoors.

It was an ugly period in our history. It's also a reminder that big government liberals can be as much inclined to suppress civil liberties as small government conservatives -- or more so.


Michael Barone

Michael Barone, senior political analyst for The Washington Examiner (www.washingtonexaminer.com), is a resident fellow at the American Enterprise Institute, a Fox News Channel contributor and a co-author of The Almanac of American Politics. To find out more about Michael Barone, and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com. COPYRIGHT 2011 THE WASHINGTON EXAMINER. DISTRIBUTED BY CREATORS.COM