A last desperate gasp
Shut up, shut up
In Leak Cases, New Pressure on Journalists
By ADAM LIPTAK
Published: April 30, 2006
Earlier administrations have fired and prosecuted government officials who provided classified information to the press. They have also tried to force reporters to identify their sources.
But the Bush administration is exploring a more radical measure to protect information it says is vital to national security: the criminal prosecution of reporters under the espionage laws.
Such an approach would signal a thorough revision of the informal rules of engagement that have governed the relationship between the press and the government for many decades. Leaking in Washington is commonplace and typically entails tolerable risks for government officials and, at worst, the possibility of subpoenas to journalists seeking the identities of sources.
But the Bush administration is putting pressure on the press as never before, and it is operating in a judicial climate that seems increasingly receptive to constraints on journalists.
In the last year alone, a reporter for The New York Times was jailed for refusing to testify about a confidential source; her source, a White House aide, was prosecuted on charges that he lied about his contacts with reporters; a C.I.A. analyst was dismissed for unauthorized contacts with reporters; and a raft of subpoenas to reporters were largely upheld by the courts.
It is not easy to gauge whether the administration will move beyond these efforts to criminal prosecutions of reporters. In public statements and court papers, administration officials have said the law allows such prosecutions and that they will use their prosecutorial discretion in this area judiciously. But there is no indication that a decision to begin such a prosecution has been made. A Justice Department spokeswoman, Tasia Scolinos, declined to comment on Friday.
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.
The administration and its allies say that all avenues must be explored to ensure that vital national security information does not fall into the hands of the nation's enemies.
In February, Senator John Cornyn, Republican of Texas, asked Attorney General Alberto R. Gonzales whether the government's investigation into The Times's disclosure of a National Security Agency eavesdropping program included "any potential violation for publishing that information."
Mr. Gonzales responded: "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."
Recent articles in conservative opinion magazines have been even more forceful.
"The press can and should be held to account for publishing military secrets in wartime," Gabriel Schoenfeld wrote in Commentary magazine last month.
That means the right to a full and vigorous defense, including if there were criminal acts committed by the government. The defense would have the right to prove these prisons existed, people were maltreated in them, and any claim of secrecy was really designed to hide violations of federal and international law.
The government would have to prove harm as well.
If the government wants to debate kidnapping and torturing people as neccessary to national security, they can do so. But to expect sympathy for this is a bit much.
The government would be forced to disclose the scale, scope and nature of the NSA program as well. If they want to go to court and lose the press like they lost Hispanics, fine. But even Fox News knows that they could be at risk as well.
Judy Miller was compromised years ago. James Risen is a very different story. They try to indict him on espionage charges, the reaction will be extremely different.
When CBS sued Howard Stern, nearly every broadcaster sided with him quickly.Why? Because they realized that they could be next. This ups the ante 100 fold
But I think this is really about pre-Rove jockeying. Once he's indicted, such a move would be seen as wagging the dog.
posted by Steve @ 2:27:00 AM