Was Greenwald justified?

The case of Edward Snowden is important in more ways than one. He has massively violated the espionage laws of the United States and done great damage to our national security. Glenn Greenwald has been one of Snowden’s most prominent journalistic conduits and in my view shares Snowden’s culpability for the violation of the espionage laws.

I made this case in principle when James Risen and the New York Times performed Greenwald’s role on behalf of unnamed sources during the Bush administration, as in the Weekly Standard column “Exposure.” I also took a look at the Pentagon Papers case in the Standard column and in the more recent Power Line post “Was Ellsberg justified?”

Now comes Greenwald with No Place to Hide, a new book glorifying his role in the Snowden case. Writing in the forthcoming issue of the New York Times Book Review, Michael Kinsley subjects Greenwald’s book to criticism consistent with a defense of the espionage laws and to withering disdain for Greenwald’s self-portrait. I urge interested readers to check out Kinsley’s review.

Glenn Reynolds provides a brief comment on Kinsley’s review that I think reflects his libertarian inspired support of Snowden and Greenwald. He makes an ad hominem point regarding Kinsley, remarking: “I don’t for a minute think that Kinsley would say this if we had a Republican in the White House.” Maybe, maybe not, but this is a weak critique of a principled case.

Glenn also observes of Kinsley’s support for “legal consequences” following from Greenwald’s role disseminating the NSA documents misappropriated by Snowden: “Well, so much for the Pentagon Papers case.” But the Pentagon Papers case addressed only the constitutionality of a prepublication injunction against the Times, not the Times’s liability for violation of the espionage laws. See Gabriel Schoenfeld’s National Affairs essay “Rethinking the Pentagon Papers” (excerpted from his outstanding book Necessary Secrets) as well as his companion National Affairs essay “Journalism or Espionage?”

Glenn is right to the extent that the Pentagon Papers case has been read loosely for the broader proposition he seems to support: that the First Amendment insulates the press from liability under the espionage laws. The Supreme Court may so hold at some time. Whether or not the Court would be right to do so, the time has not yet come and this is therefore not a persuasive point in support of Greenwald’s role as Snowden’s journalistic conduit.

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