Attorney Gen.: Reporters Can Be Prosecuted

[Corlyss_D]

I can't wait! It makes me all tingly just thinking about the prospect!

Attorney Gen.: Reporters Can Be Prosecuted
May 21 10:43 AM US/Eastern
AP

WASHINGTON

Attorney General Alberto Gonzales said Sunday he believes journalists can be prosecuted for publishing classified information, citing an obligation to national security.

The nation's top law enforcer also said the government will not hesitate to track telephone calls made by reporters as part of a criminal leak investigation, but officials would not do so routinely and randomly.

"There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility," Gonzales said, referring to prosecutions. "We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected."

In recent months, journalists have been called into court to testify as part of investigations into leaks, including the unauthorized disclosure of a CIA operative's name as well as the National Security Agency's warrantless eavesdropping program.

Gonzales said he would not comment specifically on whether The New York Times should be prosecuted for disclosing the NSA program last year based on classified information.

He also denied that authorities would randomly check journalists' records on domestic-to-domestic phone calls in an effort to find journalists' confidential sources.

"We don't engage in domestic-to-domestic surveillance without a court order," Gonzales said, under a "probable cause" legal standard.

But he added that the First Amendment right of a free press should not be absolute when it comes to national security. If the government's probe into the NSA leak turns up criminal activity, prosecutors have an "obligation to enforce the law."

"It can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity," Gonzales told ABC's "This Week."

[Werner]

Perhaps the next thing they'll think of is a Nixonian Enemies list.

[Ralph]

There's nothing new or novel in the AG's statement. No reporter has ever had immunity from prosecution for knowingly writing articles containing classified data. And the publisher is also prosecutable.

Whether to go after a newspaper, magazine or other media is a political, not a legal issue.

[Corlyss_D]

There's nothing new or novel in the AG's statement. No reporter has ever had immunity from prosecution for knowingly writing articles containing classified data. And the publisher is also prosecutable.

Yes, but. Fitzgerald is the first to ignore the polite arrangement between politicians and the press that the former would never, no never, actually prosecute anyone. You listen to the press buzz and you'll hear that they fear the comity has dissolved and no longer guarantees them a license to function as the mouthpiece of cowards hellbent on destroying the Bush, or any other, administration. They fear their enthusiasm for the Democratic agenda may have gotten the better of them.

[Werner]

Corlyss, here you are again accusing the Press of having a Democrat agenda. I seem to remember that it was prediominantly Republican. Have they learned something?

[Corlyss_D]

Corlyss, here you are again accusing the Press of having a Democrat agenda. I seem to remember that it was prediominantly Republican. Have they learned something?

How could you possibly construe the fact that 80%+ of the media votes for and otherwise supports Democratic politicians as making the media "Republican?"

[Werner]

I go back further than you do, perhaps. Remember Hearst and all the other great old-time Republican sympathizing press lords?

Anyway, let's be grateful for whatever progress we see!

[Corlyss_D]

I go back further than you do, perhaps. Remember Hearst and all the other great old-time Republican sympathizing press lords?

Now is not then.

[Werner]

Well, any competent press organization certainly has lots of dirt to discover in the disgracefully botched Bush Administration. And the puiblic needs to know.

[Ralph]

Press conferences aside those in the know in D.C. don't ever want a repeat of The Pentagon Papers case. And the fact that the Court has changed doesn't guarantee anything.

[Corlyss_D]

Prosecution of Journalists Is Possible in NSA Leaks

By Walter Pincus
Washington Post Staff Writer
Monday, May 22, 2006; A04

Attorney General Alberto R. Gonzales raised the possibility yesterday that New York Times journalists could be prosecuted for publishing classified information based on the outcome of the criminal investigation underway into leaks to the Times of data about the National Security Agency's surveillance of terrorist-related calls between the United States and abroad.

"We are engaged now in an investigation about what would be the appropriate course of action in that particular case, so I'm not going to talk about it specifically," he said on ABC's "This Week."

In December, the Times broke a story about the secret program.

On the talk show, when asked if journalists could be prosecuted for publishing classified information, Gonzales responded, "There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility."

He was referring to the 1917 Espionage Act, which made it a crime for an unauthorized person to receive national defense information and transmit it to others.

Under that act, the Justice Department is prosecuting two former lobbyists for the American Israel Public Affairs Committee for receiving and transmitting classified information they received from a Defense Department official, who recently pleaded guilty and was sentenced to 12 years in prison. U.S. District Judge T.S. Ellis III, who is presiding over the AIPAC case, is weighing a motion to dismiss the charges based on the defendants' claim that the 89-year-old espionage statute is unconstitutionally vague and might violate the First Amendment.

Yesterday, Gonzales said, "I understand very much the role that the press plays in our society, the protection under the First Amendment we want to promote and respect . . . but it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity."

As for the Times, he said, "As we do in every case, it's a case-by-case evaluation about what the evidence shows us, our interpretation of the law. We have an obligation to enforce the law and to prosecute those who engage in criminal activity."

© 2006 The Washington Post Company

[Ralph]

Prosecution of Journalists Is Possible in NSA Leaks

By Walter Pincus
Washington Post Staff Writer
Monday, May 22, 2006; A04

Attorney General Alberto R. Gonzales raised the possibility yesterday that New York Times journalists could be prosecuted for publishing classified information based on the outcome of the criminal investigation underway into leaks to the Times of data about the National Security Agency's surveillance of terrorist-related calls between the United States and abroad.

"We are engaged now in an investigation about what would be the appropriate course of action in that particular case, so I'm not going to talk about it specifically," he said on ABC's "This Week."

In December, the Times broke a story about the secret program.

On the talk show, when asked if journalists could be prosecuted for publishing classified information, Gonzales responded, "There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility."

He was referring to the 1917 Espionage Act, which made it a crime for an unauthorized person to receive national defense information and transmit it to others.

Under that act, the Justice Department is prosecuting two former lobbyists for the American Israel Public Affairs Committee for receiving and transmitting classified information they received from a Defense Department official, who recently pleaded guilty and was sentenced to 12 years in prison. U.S. District Judge T.S. Ellis III, who is presiding over the AIPAC case, is weighing a motion to dismiss the charges based on the defendants' claim that the 89-year-old espionage statute is unconstitutionally vague and might violate the First Amendment.

Yesterday, Gonzales said, "I understand very much the role that the press plays in our society, the protection under the First Amendment we want to promote and respect . . . but it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity."

As for the Times, he said, "As we do in every case, it's a case-by-case evaluation about what the evidence shows us, our interpretation of the law. We have an obligation to enforce the law and to prosecute those who engage in criminal activity."

© 2006 The Washington Post Company

*****

As for the Times, he said, "As we do in every case, it's a case-by-case evaluation about what the evidence shows us, our interpretation of the law. We have an obligation to enforce the law and to prosecute those who engage in criminal activity.

A ringing commitment to seek indictments against the Times."

[Corlyss_D]

Earlier this year I posted Gabriel Schoenfeld's article from Commentary asking the musical question, "Has the NYT Violated the Espionage Act?" This is his update

Weak on leaks
Why prosecute two small-fry lobbyists but let the New York Times endanger national security?
By Gabriel Schoenfeld
Gabriel Schoenfeld is the senior editor of Commentary magazine.

May 21, 2006

LATELY, THE U.S. government has been leaking like the Titanic after it struck an iceberg. Every day seems to place a new and highly classified government secret exactly where it does not belong: before the public eye. What is the Bush administration doing about this inundation? Alas, precisely the wrong thing. Two contrasting cases tell the story.

In August, two officials of the American-Israel Public Affairs Committee, or AIPAC, will stand trial for "conspiring to improperly transmit information related to the national defense" to members of the American media and to a foreign diplomat. In bringing this action, the Justice Department seems to be signaling a get-tough policy against leaks. But the signal is certain to be misunderstood, for seldom has the department prosecuted a more problematic case.

The AIPAC men, Steven J. Rosen and Keith Weissman, contend (and the government does not dispute) that, in their receiving information over lunch and via telephone from a Pentagon employee named Lawrence Franklin, no classified documents changed hands but some classified information was imparted orally.

The defendants further say they were unaware that the official conveying this information to them was not authorized to do so. Nor were they aware of what exactly was classified and what was unclassified in what the government official told them. They thus did not know, and had no way of knowing, that they were breaking the law when they passed on what they had learned.

At the very least, this seems to be a plausible defense. The two men are charged under Section 793 of the Espionage Act. This law has long been recognized as one of the most sloppily drafted in our nation's history, and Section 793 is particularly vague. To obtain a conviction under this provision, prosecutors must show, among other things, that the defendants acted "willfully." Given the problem of applying that term to this particular set of facts, the AIPAC men stand a good chance of acquittal. Indeed, the case should be dismissed outright before it goes to trial.

Contrast the government's effort to prosecute here with its non-handling of another leak. At a preliminary hearing in the AIPAC case, Abbe Lowell, a lawyer for one of the two defendants, pointed out that James Risen, a reporter for the New York Times, won "the Pulitzer Prize … for doing what my client has been indicted for."

In December, Risen was the author, with another New York Times reporter, of a front-page story that disclosed one of our government's most sensitive secrets in the war on terrorism — the fact that, in the aftermath of 9/11, the National Security Agency was intercepting calls coming into and out of the U.S. involving suspected terrorists.

President Bush called this disclosure a "shameful act." But, as Lowell suggested, it also may have been a crime. And if it was a crime, why are the AIPAC men now facing the possibility of up to 10 years in a federal penitentiary while Risen and his colleagues are left to bask in Pulitzer glory?

Unlike in the AIPAC case, the information uncovered and passed on to the world by the New York Times concerns communications intelligence (or "comint," in the jargon). This is an area of acute sensitivity. In 1950, partly in response to an egregious disclosure of communications intelligence by the Chicago Tribune during World War II (suggesting that the U.S. had successfully broken Japanese military codes), Congress passed a law making such disclosures a special crime.

One of the more extraordinary features of this comint provision is that it was the fruit of a compromise, drawn with the very purpose of protecting public discussion of national defense material from more draconian restrictions. In 1946, a joint congressional committee investigating the attack on Pearl Harbor had urged a blanket prohibition on the publication of government secrets. But Congress resisted, choosing instead to carve out an exception in the special case of communications intelligence, which it described as a category "both vital and vulnerable to an almost unique degree."

With the bill narrowly tailored in this way, the comint statute not only passed in Congress but, astonishingly in light of contemporary attitudes in the media, won the support of the American Society of Newspaper Editors. Unlike Section 793 of the Espionage Act, this comint statute is a model of clarity. If you publish classified information pertaining to communications intelligence, you have broken the law; it is nearly as simple as that.

I say "nearly" because the comint statute does specify that a defendant must have acted willfully. But unlike in the AIPAC case, willfulness in this instance would be a cakewalk to prove. In their reporting, the Times reporters made plain that they knew they were crossing a line, describing the NSA program as "classified" and "highly classified" and quoting an intelligence official cautioning them that it was "the biggest secret in government." Further, the Times editors were warned by no less a figure than the president of the United States that publishing their story would cause grievous harm to the U.S. efforts to track Al Qaeda.

If indicted, the Times would undoubtedly sound a klaxon about the "chilling effect" of such a step and repeat what it has been declaiming on its editorial page: that the disclosure at issue is of an illegal governmental activity — warrantless wiretapping — and that in publishing the NSA story, it was fulfilling its public service mission. But would this argument gain traction in court? Mere allegations of illegality do not, in our system of democratic rule, create any sort of terra firma — let alone a presumption that one is, in turn, entitled to break the law.

What is more, congressional leaders of both parties were briefed on numerous occasions about the NSA program; this is hardly a case, like Watergate, of the executive branch running amok. Whatever questions exist about the lawfulness of the NSA surveillance, there were channels to address them in camera without disclosing vital counterterrorism secrets to Al Qaeda via the front page of the New York Times.

Nor can the paper argue convincingly that the damage has been slight. The successful execution of even a relatively modest terrorist attack, as both the Madrid and London subway bombings show, requires a great deal of information to change hands surreptitiously. And if one thinks through the possibilities, the available avenues for such surreptitious information sharing are not many. In terms of speed, accuracy and reliability, telephones and e-mail simply cannot be surpassed.

Risen, implicitly defending the decision to publish the government's secrets, has suggested that the interception program was, in fact, ineffective; he has ridiculed the idea that terrorists, in the aftermath of 9/11, would be so naive as to speak on phone lines they suspect are tapped. But in his own reporting, he has contradicted this, noting that Al Qaeda terrorists continued to talk on open lines well after 9/11 and even crediting the NSA program with helping to apprehend some of them.

Without being privy to the program's workings, we cannot assess what value it had before the Times story came out. What is undeniable is that after it appeared, the calculus changed entirely for Al Qaeda. For a terrorist determined to mount a coordinated action, it now became critical to find new, more secure ways to operate. A primary consequence of the unauthorized disclosure has thus been to diminish our already limited ability to peer into terrorist plotting. Rep. Jane Harman, the ranking Democrat on the House Intelligence Committee, said at the time that public airing of the NSA program "damaged critical intelligence capabilities."

The Justice Department is known to be investigating the NSA leak. But no New York Times reporters have yet been interviewed by the FBI; the G-men have instead been busy rummaging around in the files of Jack Anderson, the late journalist, wasting time looking for classified documents reportedly connected to the AIPAC case but said to be decades old.

This misallocation of resources needs to change, and the place to start is by enforcing the comint statute. When it comes to programs that help to protect us from a second and more terrible 9/11, a little chilling effect on a media willing to recklessly disclose vital secrets would not be a bad thing.

Link

[Corlyss_D]

Official secrets

The Washington Post had a thoughtful editorial yesterday entitled "Official Secrets" and subtitled "Be careful what you read." The nub of the Post's argument is in this paragraph.

"The administration is seeking to convert a moribund World War I-era espionage law into an American version of Britain's Official Secrets Act. Mr. Gonzales is correct that the law, which bans the transmission of national defense information to anyone not cleared to receive it, would – if read literally – make criminals out of journalists who publish such material. For that matter, it would also permit the jailing of whistle-blowers, academics who write about leaked information, members of Congress who disclose secrets, and, theoretically, even readers of newspapers who discuss the stories. Precisely because of the law's unthinkable scope, the First Amendment has long been understood to limit its application. Government has gone after officials who promise to protect the nation's secrets and then fail to do so – but generally not against citizens who receive those secrets." I've written about this issue before.

Note that the Post concedes that the statute, if read literally, "makes criminals out of journalists who publish such material." The Post is arguing for a nonliteral reading based (though it doesn't use the word) on the legal doctrine of laches. That doctrine is that a right that the government or a private party asserts can fall into nonexistence from disuse. Under this doctrine, if your next-door neighbor has been using a driveway partly on your property and you've acquiesced in this for many years, you can't come into court and force the neighbor to stop trespassing on your property. If the government prosecutes you for opening your store after 5 p.m. on Sunday after not enforcing that statute for many years, it is an unjust prosecution, and laches may be a possible defense. As applied to the Espionage Act of 1917 and the amendment of 1950, the argument would be that it is unjust to suddenly start enforcing a criminal statute that the government has left unenforced for many years. Private parties—newspapers—have come to rely on that nonenforcement and should not be penalized for doing so.

The problem with the laches doctrine in this situation, however, is that, as the Post notes, the government is now using the Espionage Act to prosecute not only government officials who disseminate secret information (former Pentagon official Lawrence Franklin, who has been convicted) but also the recipients of that information (two former officials of the American Israel Public Affairs Committee, who are currently being prosecuted).

Let me parse the sentences of the Post's last paragraph.

"Criminalizing such disclosures would be antithetical to the American tradition," writes the Post: a pure laches argument.

"Yet the administration has set about doing it without even asking Congress." But of course Congress could always repeal the Espionage Act and the 1950 amendments, and it has not done so. It's not clear why the administration needs to ask Congress for permission to enforce a statute that Congress could repeal but has chosen not to. This is evidently also a laches argument: that Congress has come to rely on nonenforcement and so felt no need to repeal. But this argument is weakened by the pendency of the Franklin and AIPAC cases, which have been ongoing for several years: They put Congress on notice that the statute was being enforced, and against former staffers of what some have described as one of the most powerful lobbies in Washington.

Which the Post recognizes. "It has brought a case against two pro-Israel lobbyists for receiving leaks and transmitting them to colleagues, a reporter for the Post and the Israeli Embassy." And it brings up another case. "It has leaned on the family of the late journalist Jack Anderson to allow FBI agents to rifle through his old papers – on the theory that, as a bureau spokesman recently explained it, 'no private person may possess classified documents that were illegally provided.' "

"And as the attorney general's comments make clear, it is considering prosecuting journalists for doing their jobs." This is a reference to the possibility that the government may prosecute the New York Times for its disclosure of the National Security Agency surveillance of conversations between suspected al Qaeda operatives abroad and persons in the United States (something squarely covered by the 1950 amendment to the Espionage Act) and the Post itself for its disclosure of CIA secret prisons in Eastern Europe.

"It is a dangerous road." I agree. But of course it was the press, led by the editorialists of the New York Times, that bayed loudly for investigation and prosecution of government officials who disclosed the name of CIA operative Valerie Plame, even though it was far from clear that there was any violation of the statute in question, the Intelligence Identities Protection Act of 1982. The press, or large parts of it, is all for prosecution—even if it leads, as it did, to the jailing of then New York Times reporter Judith Miller—if such a prosecution will hurt the Bush administration. On that one, it was the press that was hurtling down "a dangerous road." The Times and Post reporters and editors who published the stories I referenced above are at the very least in the same legal position as Judith Miller; that is, they are witnesses to acts that are in violation of statute and may be jailed for contempt if they refuse to testify against those who illegally disclosed classified information. At worst, they stand in the same legal position as the two former AIPAC officials, who received the information and passed it along to others—and perhaps are in a worse position, since those two defendants argue, quite possibly plausibly, that they did not know that the information they received was classified, while the Times and Post editors clearly did have such knowledge. There's a strong argument against prosecuting the press on these grounds, that doing so is going down "a dangerous road." But the press, which after all has knowledge of the Franklin and former AIPAC officials' prosecutions and the fact that Congress has not repealed the statutes responsible for them, has been going down "a dangerous road," too.
Posted at 12:44 PM by Michael Barone
http://www.usnews.com/usnews/opinion/ba ... =rss:site1

I can't wait for the trials to begin . . .