Leaks are a time-tested fact of political life. Governments leak information in order to control a story, and the Bush administration is no different in that regard. When a leak backfires out of control and push comes to shove, the government issues a subpoena to force a reporter to identify their source. It’s a calculated risk and everyone knows the rules.
Until now. Now the Bush administration is employing espionage laws against journalists to protect information it considers to be crucial to national security. And as Adam Liptak points out in today’s New York Times, the judiciary “seems increasingly receptive to constraints on journalists.”
“Because such prosecutions of reporters are unknown, they are widely thought inconceivable. But legal experts say that existing laws may well allow holding the press to account criminally. Should the administration pursue the matter, these experts say, it could gain a tool that would thoroughly alter the balance of power between the government and the press.”
Attorney General Alberto Gonzales, responding to an inquiry from Senator John Cornyn (R-Texas) regarding the legal status of the publication of information about the Bush administration’s warrantless wiretapping program, made his position clear: “Obviously, our prosecutors are going to look to see all the laws that have been violated. And if the evidence is there, they’re going to prosecute those violations.”
But what happens when a journalist dies with leaked information in his possession that’s possibly classified? That’s the case of columnist Jack Anderson, and the FBI is making a concerted effort to reclaim classified documents from his files. Liptak quotes FBI spokesman Bill Carter: “Under the law, no private person may possess classified documents that were illegally provided to them.”
According to Liptak, the Bush administration is relying on the 1971 Supreme Court decision that denied blocking the publication of the Pentagon Papers by both the New York Times and the Washington Post. Two of the justices — Byron White and Potter Stewart — felt that the publications could be prosecuted after publication under existing espionage laws.
Liptak outlines two provisions of existing espionage laws that prohibit possession and publication of classified information:
- A 1917 law prohibits anyone with unauthorized access to documents or information concerning national defense from disclosing the information to others. Many legal experts, however, believe that this law was not meant to apply to newspapers.
- A 1950 law prohibits publication of government codes and other “communications intelligence activities.”
Some legal experts say these laws violate the First Amendment when applied to publishers, especially publishers who are exposing government wrongdoing.
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Journalists as criminals under espionage laws was originally published by ARTS & FARCES internet on Sunday, 30 April 2006 at 2:51 PM CDT. Copyright © ARTS & FARCES LLC. All rights reserved. | ISSN: 1535-8119 | OCLC: 48219498 | Digital fingerprint: 974a89ee1284e6e92dd256bbfbef3751 (64.237.45.114)