In other words, sometimes “no comment” really does mean “no comment possible.” Given the amount of conflicted reporting that flies around intelligence stories, why doesn’t the FBI correct the record more often? As FBI Director James Comey reminded the House Intelligence Committee earlier today, they simply can’t. Attempting to fix bad reporting on classified or sensitive matters exposes too much, Comey says, and as common sense dictates.
Even if, as Comey tells Rep. Michael Turner (R-OH), “there’s a whole out there that’s false”:
— Reuters Politics (@ReutersPolitics) March 20, 2017
“I’ve read a whole lot of stuff, especially in the last two months, that’s just wrong,” Comey said. “But I can’t say which is wrong.” …
“We’ll give information to our adversaries that way,” he said. Also: “We can’t because where do you stop on that slope? ‘Cause then, when I don’t call the New York Times and say, ‘You got that one wrong,’ bingo; they got that one right. So it’s just an enormously complicated endeavor for us. We have to stay clear of it entirely.”
“What is the obligation of the intelligence community to correct such falsehoods?” Turner asked.
“We not only have no obligation to correct that; we can’t,” Comey replied. “It’s very, very frustrating,” he added, “but we can’t start down that road.”
The main reason bad information gets reported through anonymous sourcing, Comey testified, is that the sources reporters use “don’t know as much as they think they do.” They tend to be one or two levels outside the truth, but think they really know what’s going on. They want to feel more important, and that impulse either prompts them to reach out to reporters or to embellish when they do call.
If that’s the case, Trey Gowdy wonders, why not arrest the reporters for the leaks too?
“Is there an exception in the law for current or former U.S. officials requesting anonymity?” Gowdy asked Comey during testimony about Russia’s interference in the U.S. election. Gowdy was asking about U.S. statute that forbids the leaking of classified material.
The FBI director said there was not an exception for U.S. officials.
“Is there an exception in the law for reporters who want to break a story?” asked Gowdy.
Comey struggled to answer the question, saying it was something that had never been prosecuted “in my lifetime.”
Was Gowdy serious about this question? Gowdy had also pressed for an answer on whether the FBI was investigating the leaks through which the Michael Flynn transcript was publicized, but Comey had refused to confirm or deny that such a probe was underway. When Comey replied that “I don’t want to confirm it by saying we’re investigating it,” Gowdy clearly got frustrated with that answer, telling Comey to get authority to open such an investigation, pronto. That frustration may have prompted the question about the ability to prosecute reporters.
In practice, there has always been an exception for reporters, and it’s been interesting to see how that plays out between Democratic and Republican administrations. During the Bush administration, supporters demanded legal penalties for reporters at the New York Times for publishing classified information on counterterrorism operations (especially the SWIFT program), only to reverse course during the Obama administration when it surveilled reporters. Partisans for the other side did the same thing in reverse.
Strictly speaking, the statute may apply to all along the line who expose classified information, but prosecution has always aimed at the person(s) who had been officially granted access to the information. Reporters will sometimes face contempt citations for not naming those sources, but not an 18 USC 793 violation themselves. The only hypothetical where that might change would be if they are actually engaging in espionage for a foreign power. Prosecuting reporters for getting and publishing leaks has rightly been seen as an anathema for a nation that believes in a free press, which is why Democrats and liberals defend the New York Times, and why Republicans and conservatives defend James Rosen. In this case, they’re both correct — and to the extent that Gowdy wants a vigorous investigation to find the leakers, so is he.