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Ryan Blethen / Times editorial columnist
Old law, new intimidation tactics
As the U.S. attorney general floats the idea of prosecuting journalists under an 89-year-old espionage law the message is clear: Back off.
"There are some statutes on the books which if you read the language carefully would seem to indicate that that is a possibility," said Attorney General Alberto Gonzales, on the ABC Sunday news show, "This Week."
Those are scary words for democracy. Gonzales is saying that by dusting off a World War I-era statute, which has been rarely used and never against the press, the administration plans to further control its message, and keep Americans in the dark about its doings.
The 1917 Espionage Act made it criminal for a government official to disseminate national defense information to somebody not authorized to receive such information. The act was amended during the Red Scare to punish the recipient of defense information.
The impetus for the administration's zeal to prosecute journalists stems from reports in The Washington Post and The New York Times. The Post reported that the government is running secret prisons in Eastern Europe, and The Times broke the story about the National Security Agency's domestic spying program.
Both are important stories that the public deserves to know about, and would not have been written without government officials passing the information along to the newspapers.
Does receiving classified information about the NSA or the prisons give cause for journalists to be tried as spies?
The answer is not clear. The government would have to prove that the stories place the nation in imminent danger, said Stewart Jay, a constitutional law professor at the University of Washington.
The Times and Post stories pose no such danger. The stories actually highlight what could be illegal activity.
Geoffrey Stone, a law professor at the University of Chicago, wrote an op-ed in The New York Times that said the Espionage Act would not work against journalists. One of his reasons is that Congress struck down language in President Wilson's proposal that would have made it a crime for the press to print information helpful to our foes.
In those years, it must have been great having a Congress willing to push back against the executive. Today's rubber-armed Congress has not shown any interest in safeguarding the rights of Americans. Congress could actually help Bush get more control over press prosecution. Sen. Pat Roberts, R-Kan., chairman of the Senate intelligence committee, has said he might introduce legislation that would broaden what is considered criminal when classified information is leaked.
This aggressive stance by the Justice Department and the administration would seem to be nothing more than tactics of intimidation if it were not for two lobbyists being charged under the Espionage Act. The Washington Post reported that a Justice Department filing in the case of two former lobbyists from the American Israel Public Affairs Committee raises the idea of using the Espionage Act to try journalists.
Lucy Dalglish, executive director of the Reporters Committee for the Free Press, calls the AIPAC case a test run.
"What they are doing is technically no different from what journalists do," she said.
What journalists do is act as a watchdog. That necessary role the press plays in our democracy seems to be what has the administration looking for ways to shut down reporting that does not support its position.
My guess is the administration will give the Espionage Act a try if the AIPAC trial breaks its way. There is nothing that can stop the Justice Department from trying, which at the very least could tie up journalists in legal proceedings for a couple years, and drain resources from newspapers.
When people hear the attorney general describe what journalists do as "criminal activity," doubt seeps into the public's perception of the press.
Even worse, journalists have to worry about being branded traitors and thrown in jail for covering institutions such as the NSA.
"It is pretty chilling to be prosecuted under the Espionage Act because you can go away for a long time," Jay said.
The administration should think about that next time it leaks information to the press.
Ryan Blethen's column appears regularly on editorial pages of The Times. His e-mail address is email@example.com
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