Prosecuting the Press:

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." This past weekend, Attorney General Alberto Gonzales fueled the fire when he suggests on ABC News' "This Week" that the prosecution of journalists was a possibility. "There are some statutes on the book which, if you read the language carefully, would seem to indicate" that prosecuting journalists for reporting on leaked classified information "is a possibility," he said. The Attorney General went on to say that DOJ has "an obligation to enforce the law and to prosecute those who engage in criminal activity."

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.

The full article is here.

UPDATE: I'll be responding to critiques on and off in the comments throughout the day.

Will Justice Prosecute Journalists?

That was one of the questions in a Senate Judiciary Committee hearing yesterday at which Deputy U.S. Attorney Matthew W. Friedrich testified. The Washington Post reports:

Friedrich, in his opening statement, confirmed that the Justice Department was prepared to investigate and prosecute leaks, but referred to Attorney General Alberto R. Gonzales's recent statement that the "primary focus is on the leakers of classified information, as opposed to the press."

When Friedrich confirmed that the department thought that journalists or "anyone" could be prosecuted under the Espionage Act for publishing classified information, Specter asked specifically about whether the law could be applied to reporter James Risen of the New York Times, the newspaper that published an article in December about the National Security Agency's warrantless surveillance program.

"Obviously, Senator, I can't comment as to any particular case or specific matter," Friedrich said. He added that espionage laws "do not exempt . . . any class of professional, including reporters, from their reach."

Specter then asked, without specifying a particular case, whether the department, under Gonzales or former attorney general John D. Ashcroft, ever considered prosecuting a newspaper or reporter for publishing leaked classified information.

"I don't think it would be appropriate for me to give an indication one way or another, and I hope people don't read anything into my answer one way or another," Friedrich said. But after a short lecture from Specter, he added that it was his "understanding" that there were historical examples of officials considering whether to prosecute journalists.

Why Publish Government Secrets?

Washington Post associate editor Robert Kaiser explains the Post's approach to classified information and other government secrets uncovered by its reporters. Among other things, he notes that government officials have a tendency to exaggerate the sensitivity of certain material, as happened in the Pentagon Papers case and the "Ivy Bells" story.

Here is a taste of the article, but those interested in the subject (or prone to comment) should read the whole thing:

The Post's record on stories of this kind is good. I don't know of a single case when the paper had to retract or correct an important story containing classified information. Nor do I know of a case when we compromised a secret government program, or put someone's life in danger, or gave an enemy significant assistance.

These are the criteria we generally use when evaluating a report based on classified information. Editors here spend long hours on these stories. We never rush them into print; our lawyers usually read them along with editors.

We publish news we think is important, which is usually easy to recognize. We always ask the administration of the day to comment on sensitive stories, knowing that we may be inviting efforts to dissuade us from publication. This happened in the case of Priest's story on the secret prisons. The Bush administration asked Leonard Downie Jr., our executive editor, not to mention the names of the countries in which these prisons were located, on grounds that naming them could disrupt important intelligence relationships. He agreed, in part because "naming the countries wasn't necessary for American readers," he said later.

But Downie rejected the suggestion that he kill the story altogether. "It raised important issues for American voters about how their country was treating prisoners, and it raised significant civil liberties issues," he said. Journalists are inclined to publish what we learn -- that's our job.

But we don't assert that the government has no right to keep secrets. On the contrary, we have probably helped the government keep secrets more often than we should have. But we exercise common sense, and seek guidance from knowledgeable people when we're uncertain. We avoid the gratuitous revelation of secrets. If we learn next week that the United States has found Osama bin Laden's hiding place, you are unlikely to read a story about it here before the government takes some action. . . .

Once we understand the need for balance, it follows logically that no single authority should be able to decide what information should reach the public. Some readers ask us why the president's decisions on how best to protect the nation shouldn't govern us, and specifically our choices of what to publish. The answer is that in the American system of checks and balances, the president cannot be allowed to decide what the voters need to know to hold him accountable. A king may have such power, but the elected executive of a republic cannot, or we will have no more republic.

Labeling something "classified" or important to "national security" does not make it so. The government overclassifies with abandon. And the definition of "national security" is elusive. Some politicians act as though revealing any classified information threatens our nation's security, but that seems preposterous.

Rep. King Wants NYT Prosecuted:

Representative Peter King (R-NY), Chairman of the House Homeland Security Committee, believes that the Justice Department should look into prosecuting the New York Times for its stories on classified government anti-terror programs, such as this article on federal monitoring of international financial records. Appearing on FoxNews Sunday this morning, Rep. King said:

To me, the real question here is the conduct of The New York Times. By disclosing this in time of war, they have compromised America's antiterrorist policies. This is a very effective policy. They have compromised it. This is the second time The New York Times has done this.

And to me, nobody elected The New York Times to do anything. And The New York Times is putting its own arrogant, elitist, left-wing agenda before the interests of the American people.

And I'm calling on the attorney general to begin a criminal investigation and prosecution of The New York Times, its reporters, the editors that worked on this, and the publisher. We're in time of war, Chris, and what they've done here is absolutely disgraceful. I believe they violated the Espionage Act, the Comint Act.

This is absolutely disgraceful. The time has come for the American people to realize and The New York Times to realize we're at war and they can't be just on their own deciding what to declassify, what to release.

If Congress wants to work on this privately, that's one thing. But for them to, on their own — for them to decide — for the editor of The New York Times to say that he decides it's in the national interest — no one elected them to anything.

Appearing with Rep. King, Senate Judiciary Committee Chairman Arlen Specter (R-PA) was unwilling to jump on the press prosecution bandwagon.

I don't think that the newspapers can have a totally free hand. But I think in the first instance, it is their judgment. The editor of The New York Times was quoted as saying that they had considered the government's request not to publish and had made their decision that it was in the public interest.

I'd be prepared to criticize The New York Times if I felt it warranted after knowing a lot more about the facts, but on the basis of the newspaper article, I think it's premature to call for a prosecution of The New York Times, just like I think it's premature to say that the administration is entirely correct.

The full transcript is here. Additional coverage is here.

Gov't May Prosecute Recipients of Leaked Information:

The federal government may prosecute private citizens who illegally receive and retransmit classified information, held federal district court Judge T.S. Ellis III yesterday in United States v. Rosen. Judge Ellis denied a motion to dismiss filed by Steven Rosen and Keith Weissman, two former employees of the American Israel Public Affairs Committee (AIPAC), who are being prosecuted under the Espionage Act for obtaining classified information and communicating it to third parties, including members of the media. According to Judge Ellis:

both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

Any violation of the statute must be both knowing and willful, Judge Ellis ruled, narrowing the implications of the decision.

the government must . . . prove that the person alleged to have violated these provisions knew the nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless. . . . [And] with respect only to intangible information, the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation, which the Supreme Court has interpreted as a requirement of bad faith.

While allowing the government's prosecution to proceed, Judge Ellis made clear he was not passing on the wisdom of the government's proseuction, just its contitutionality.

The conclusion that the statute is constitutionally permissible does not reflect a judgment about whether Congress could strike a more appropriate balance between these competing interests, or whether a more carefully drawn statute could better serve both the national security and the value of public debate. . . . the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation's security and our citizens' ability to engage in public debate about the United States' conduct in the society of nations.

Steven Aftergood on the Secrecy News blog notes that Judge Ellis' decision could have distubing implications for press freedoms.

the classified 2004 report of Maj. Gen. Antonio Taguba on prisoner abuse at Abu Ghraib prison clearly fit the court's description of national defense information that is closely held by the government. Moreover, its unauthorized disclosure was likely to, and did in fact, harm the United States. And yet that disclosure also served an important national purpose in prompting a public debate over U.S. policy on prisoner detention and interrogation.

But under Judge Ellis' new interpretation, those reporters and others who communicated this information to the public could apparently be prosecuted under the Espionage Act.

Under Judge Ellis' interpretation, it also seems the federal government could prosecute reporters at the Washington Post and New York Times for their reports on secret prisons, NSA surveillance, and other classified counter-terrror activities.

Reactions to Espionage Act Ruling:

This Los Angeles Times article quotes some reactions to Wednesday's ruling that individuals who receive and retransmit classified national security information may be prosecuted under the Espionage Act.

"It's a momentous ruling with radical implications," said Steven Aftergood, who heads the Project on Government Secrecy for the Federation of American Scientists. "A lot of people who are in the business of gathering information, such as reporters and advocates, are now going to have to grapple with the potential threat of prosecution. The dividing line has always been between leakers, who may be prosecuted, and the recipients of the leak, who have never been. Now that dividing line has been erased." . . .

Prosecutors have said that for the espionage law to be invoked, an individual possessing secret information must intend to cause harm to America. But they have not ruled out the possibility of charging journalists.

Some legal experts are skeptical of the judge's reasoning that safeguards are sufficient to prevent abusive prosecutions.

"It is predicated on an idea that the executive and judicial branches will operate with rectitude and only prosecute cases where there is a genuine risk of harming national security" rather than political considerations, said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. "It presumes a degree of honest government that, sadly, does not always exist."

Aftergood and Kirtley said they knew of no other case where the United States was seeking criminal charges against someone other than a government employee who clearly violated a nondisclosure agreement.

The story also notes that there is a federal grand jury looking into the leaks relating to NSA surveillance activities reported in the press. Howard Bashman rounds up more press coverage here.

Espionage Act Prosecution Updates:

The editorial page of the Washington Post is concerned about last week's Espionage Act ruling.

The United States has never had an Official Secrets Act -- a statute forbidding private citizens from disclosing and discussing information the government wants to keep quiet. Last week it got one. The change didn't come from Congress but from a federal judge in Virginia. At the urging of the Bush administration, Judge T.S. Ellis discovered it in an old and vague law that prohibits disclosure of information related to the national defense.
The editorial stresses that federal prosecutors have not accused the defendants of spying -- apparently the facts alleged could not support such a charge -- and are instead seeking convictions on the grounds the defendants knowingly obtained and recommunicated classified information.

In a related development, Judge Ellis issued a ruling last Friday that may make it more difficult for the federal government to obtain convictions in this case. Specifically, Judge Ellis denied the government's motion to offer evidence that a document described as "not classified" in the indictment was, in fact, classified. Allowing such evidence to be admitted would constructively amend the indictment and constitute per se error, Judge Ellis ruled. This is potentially significant because, according to the government's allegations, this is the only document that one of the defendants specifically requested from a government official. The Secrecy News blog has more here.

WSJ on Espionage Act Case:

The Wall Street Journal editorializes on the Espionage Act prosecutions of two former AIPAC employees.

The prosecution of government "leaks" that began with the Valerie Plame case has already sent one reporter to jail and limited the ability of all journalists to protect their sources. But now things are getting worse, as the Justice Department is prosecuting a pair of lobbyists for doing what journalists do every day.

While decrying the prosecution, the WSJ avoids beatifying the press for its actions.

We realize that few of our readers have much sympathy for the press these days, and with ample cause. As we recently wrote after the Swift terror financing disclosure by the New York Times, we think the press sometimes has an obligation not to publish everything it knows. By revealing security secrets for no apparent reason other than its own partisan and ideological agenda, the Times has invited a government backlash against the entire press corps.

But these Espionage Act prosecutions are dangerous to more than the media. The statute is notably vague, meaning it is ripe for selective prosecution and misuse against political or partisan enemies. On any given day in Washington, numerous classified details are whispered across lunch tables and many of them make it into print or on the air. Many of these "secrets" aren't truly vital to national security but have been classified for political reasons, or because information is power and many bureaucrats like to control the flow of information. Is Justice going to investigate and prosecute every one of those leaks? The potential for political abuse is obvious.

And in the end, the WSJ picks up on the Washington Post's Espionage Act as U.S. Official Secrets Act" meme.

More broadly, this use of the Espionage Act amounts to the imposition, by executive fiat, of a U.S. version of Britain's Official Secrets Act. That law criminalizes the publication--and even the re-publication--of certain kinds of information. This kind of "prior restraint" on the press is alien to the American legal tradition of First Amendment rights. If Attorney General Alberto Gonzales thinks we need an Official Secrets Act, then he ought to say so and ask Congress to debate and pass it, rather than let his prosecutors impose one by the back door.

A Troubling Prosecution:

Michael Berry and I analyze the implications of United States v. Rosen in this NRO column. Here's the introduction:

Can journalists be prosecuted for knowingly reporting classified information related to the War on Terror? What about Washington lobbyists who pass on secret information concerning defense matters or foreign affairs? Some would be inclined to say that except in the most exceptional circumstances such communications are protected by the First Amendment, but a recent decision by a federal court in Virginia seems to conclude otherwise. The decision sends a clear warning to reporters who cover the war on terrorism, as well as scholars, think-tank analysts, and lobbyists who study, write, and advocate about issues bearing on the national security. Read broadly, the decision could sanction federal prosecution of anyone who willfully communicates classified national defense information to the public. Fortunately, the decision also contains limiting language that provides some safeguard for First Amendment values and makes it more difficult for federal prosecutors to convict potential defendants engaged in constitutionally protected activity, journalists and non-journalists alike.

Perspectives on Prosecuting the Press:

The latest issue of the National Security Law Report, published by the ABA Standing Committee on Law and National Security, is now available online. It includes six essays on whether journalists can or should face prosecution for publishing leaked classified national defense information. The contributors include Geoffrey Stone, Gaberiel Schoenfeld, John Eastman, Kate Martin, Bryan Cunningham, and myself.