Outside the Beltway

Prosecution of Journalists Possible in NSA Leaks

James Joyner · Monday, May 22, 2006 · 6 comments

Attorney General Alberto Gonzales would not discount the possibility of the government prosecuting the New York Times for publishing classified information.

NYT:

The government has the legal authority to prosecute journalists for publishing classified information, Attorney General Alberto R. Gonzales said yesterday. “There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility,” Mr. Gonzales said on the ABC News program “This Week.” “That’s a policy judgment by the Congress in passing that kind of legislation,” he continued. “We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected.”

Asked whether he was open to the possibility that The New York Times should be prosecuted for its disclosures in December concerning a National Security Agency surveillance program, Mr. Gonzales said his department was trying to determine “the appropriate course of action in that particular case.” “I’m not going to talk about it specifically,” he said. “We have an obligation to enforce the law and to prosecute those who engage in criminal activity.”

Though he did not name the statutes that might allow such prosecutions, Mr. Gonzales was apparently referring to espionage laws that in some circumstances forbid the possession and publication of information concerning the national defense, government codes and “communications intelligence activities.” Those laws are the basis of a pending case against two lobbyists, but they have never been used to prosecute journalists.

WaPo:

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.”

See Expose the Left for video of the Gonzales segment.

PowerLine’s Scott Johnson raised this possibility back in January and OTB looked at it here. The Pentagon Papers case, aka, New York Times Co. v. U.S. (1971) would seem to insulate the press from such prosecutions but, as Johnson notes, there is conflicting case law on this.

Whether the government can theoretically go after the press in such cases, though, it would be quite problematic to do so in such an instance. It’s not as if the NYT revealed operational details such as troop movements or the precise technological parameters of this operation. Prosecution here should be reserved for those who leaked to the NYT. The nature of the leak, though, is certainly of sufficient severity to warrant forcing reporters to reveal their sources.

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Related: Can NYT Be Prosecuted for Publishing Classified Info?