Chicago Tribune Editorial - The wrong target
Chicago Tribune Editorial - The wrong target
Copyright © 2006, Chicago Tribune
Published May 23, 2006
By now, the idea of the government putting New York Times reporters in jail may sound like yesterday's news, but Atty. Gen. Alberto Gonzales has put a new wrinkle in it. In a recent interview, he raised the possibility that the paper might be criminally prosecuted for publishing a December story revealing the National Security Agency's warrantless electronic surveillance of calls between the United States and foreign countries.
"There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility," he ventured. "We have an obligation to enforce the law and to prosecute those who engage in criminal activity." The law he had in mind is the Espionage Act, which makes it a crime for any unauthorized person to receive or publish defense-related information.
This option has found some support among conservatives who think the Times damaged national security when it revealed the existence of the secret program. It may be that, to humor some administration supporters, Gonzales is merely acknowledging the theoretical possibility of indicting those responsible, not planning to actually do it.
Let's hope so. If he is serious, though, he is making a mistake. It is the job of the executive branch to keep such secrets, but if it fails to do so, it should not expect journalists to do the job for it. Much of what the American people know about how the government operates comes from news stories based on classified documents. Without them, the public would have far less ability to assess the performance of its leaders.
In strict legal terms, Gonzales is also on shaky ground. Since its enactment in 1917, the Espionage Act has never been used to punish journalists for publishing classified secrets, despite the abundance of such stories. Nor is it at all certain that the law, if applied that way, would be upheld by the courts.
This story was clearly of value to the American public, since it revealed a program that may have violated federal law. Contrary to what is often claimed, it doesn't appear to have done any harm to national security--say, by alerting Al Qaeda confederates that they shouldn't talk on the telephone. Existing law, after all, allows such eavesdropping with court approval.
The administration would prefer to keep the effort secret. But the constitutional guarantee of press freedom puts tight limits on the government's power to punish the press for what it reports. University of Chicago law professor Geoffrey Stone, a premier 1st Amendment scholar, says it's inconceivable that the courts would allow a prosecution unless the information published is of little public value and poses a "clear and present danger" to national security--such as revealing troop movements in wartime.
In this case, neither of those conditions has been met. Indeed, Congress has responded to the New York Times report with long and healthy debate about whether the NSA program is constitutional--and whether the courts should provide oversight of it. Instead of going after journalists, the administration should devote its energies to putting its own house in order.
Copyright © 2006, Chicago Tribune
Published May 23, 2006
By now, the idea of the government putting New York Times reporters in jail may sound like yesterday's news, but Atty. Gen. Alberto Gonzales has put a new wrinkle in it. In a recent interview, he raised the possibility that the paper might be criminally prosecuted for publishing a December story revealing the National Security Agency's warrantless electronic surveillance of calls between the United States and foreign countries.
"There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility," he ventured. "We have an obligation to enforce the law and to prosecute those who engage in criminal activity." The law he had in mind is the Espionage Act, which makes it a crime for any unauthorized person to receive or publish defense-related information.
This option has found some support among conservatives who think the Times damaged national security when it revealed the existence of the secret program. It may be that, to humor some administration supporters, Gonzales is merely acknowledging the theoretical possibility of indicting those responsible, not planning to actually do it.
Let's hope so. If he is serious, though, he is making a mistake. It is the job of the executive branch to keep such secrets, but if it fails to do so, it should not expect journalists to do the job for it. Much of what the American people know about how the government operates comes from news stories based on classified documents. Without them, the public would have far less ability to assess the performance of its leaders.
In strict legal terms, Gonzales is also on shaky ground. Since its enactment in 1917, the Espionage Act has never been used to punish journalists for publishing classified secrets, despite the abundance of such stories. Nor is it at all certain that the law, if applied that way, would be upheld by the courts.
This story was clearly of value to the American public, since it revealed a program that may have violated federal law. Contrary to what is often claimed, it doesn't appear to have done any harm to national security--say, by alerting Al Qaeda confederates that they shouldn't talk on the telephone. Existing law, after all, allows such eavesdropping with court approval.
The administration would prefer to keep the effort secret. But the constitutional guarantee of press freedom puts tight limits on the government's power to punish the press for what it reports. University of Chicago law professor Geoffrey Stone, a premier 1st Amendment scholar, says it's inconceivable that the courts would allow a prosecution unless the information published is of little public value and poses a "clear and present danger" to national security--such as revealing troop movements in wartime.
In this case, neither of those conditions has been met. Indeed, Congress has responded to the New York Times report with long and healthy debate about whether the NSA program is constitutional--and whether the courts should provide oversight of it. Instead of going after journalists, the administration should devote its energies to putting its own house in order.
posted by Carlos T Mock at 9:24 AM
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