Can journalists be prosecuted for reporting on leaked classified information? Should they? Some conservatives seem to think so. Over the past several months a slew of conservative pundits have argued that the federal government should prosecute journalists for publishing news reports that contain classified information. More recently, Attorney General Alberto Gonzales suggested such prosecutions are a real possibility.
Appearing on ABC’s This Week, Gonzales said that “there are some statutes on the book which, if you read the language carefully, would seem to indicate” that prosecuting journalists for reporting on leaked classified information “is a possibility.” Gonzales went on to say that the Justice department has “an obligation to enforce the law and to prosecute those who engage in criminal activity.” While reports indicate the Justice department is aggressively pursuing the identities of government officials who leaked sensitive national-security information, there is no indication the department intends to press charges against a journalist–at least not yet. Such a prosecution would be unprecedented, as the federal government has never criminally prosecuted a journalist for publishing classified information. And such a prosecution would be nothing for conservatives to cheer.
Most discussions of potential prosecutions of journalists who have reported on classified counterterrorism efforts begin with the Espionage Act of 1917, specifically section 793(e). Writing recently on National Review Online, Andrew McCarthy suggested that the Washington Post’s Dana Priest might have violated this section by writing an article on alleged secret CIA prisons in Eastern Europe. While McCarthy lays out the case against Priest and argues that this section of the Espionage Act is “clear,” the text hardly makes it clear Priest did anything illegal. Moreover, any interpretation of 793(e) that could be used to prosecute Priest could just as easily be applied against McCarthy and many others who have repeated the contents of her stories. Not only does such an interpretation stretch the law well-beyond its intended targets–those engaged in purloining classified national defense information or committing espionage against the United States–it raises profound First Amendment concerns.
Section 793(e) makes it illegal for anyone with “unauthorized possession” of “national defense information” to “willfully communicate” such information “to any person not entitled to receive it” if the person “has reason to believe” the information “could be used to the injury of the United States or to the advantage of any foreign nation.” For starters, it is not clear that any information in Priest’s article–and many other reports in other publications on classified aspects of the war on terror–qualify as “national defense information” that “could be used to the injury of the United States.” The disclosure of so-called “black sites” in Europe may be embarrassing, unfortunate, or something that might have been best kept secret, but such information can hardly be wielded against U.S. interests like secret codes or operational information. Indeed, nothing in Priest’s article poses a direct, physical threat to the United States or advantages a “foreign nation.”
We do not mean to minimize the negative diplomatic fallout that Priest’s reporting might have caused. It is certainly possible that her stories made it more difficult for the United States to obtain the cooperation of foreign governments in the war on terror. Yet if this is the sort of injury that can trigger liability under the Espionage Act, then many reporters who have disclosed embarrassing, classified information are equally guilty. Just consider all of Bill Gertz’s stories in the Washington Times about the Clinton administration’s national-defense and diplomatic missteps. Were these stories criminal?
Imagine that a newspaper obtained classified information purporting to demonstrate that President Clinton’s decision to bomb a pharmaceutical plant in Sudan was driven by his desire to distract attention from the Lewinsky affair. Such a story, if true, would have surely harmed the nation’s diplomatic relationships, compromised multilateral counter-terrorism efforts, and undermined U.S. credibility abroad. But it defies comprehension that publishing such a story could be criminal. Such a broad standard would necessarily encompass constitutionally protected speech.
McCarthy also argues that Priest appears to have acted “willfully” because she likely understood that her actions were “forbidden by law.” The fact is that to avoid First Amendment problems the term “willfully” in the Espionage Act has been interpreted to require that the defendant act in “bad faith” and with an “underhanded motive.” Priest apparently had neither. She and the Post reportedly discussed the matter at length with the highest levels of the administration and refrained from reporting certain more sensitive facts. Some may argue Priest was insufficiently sensitive to the administration’s concerns, but these are not the actions of a rogue reporter bent on breaking the law. As a matter of constitutional law, courts permit the press adequate breathing space to ensure that First Amendment rights are not infringed; they do not turn that question over to juries.
As these examples should illustrate, application of section 793(e) to a reporter such as Priest raises serious constitutional concerns about the freedom of the press. Indeed, the statute likely could never be applied to journalists who are not guilty of other crimes, such as the actual theft of classified defense documents, without threatening protected First Amendment activity. As Judge J. Harvie Wilkinson III of the Fourth Circuit wrote in an Espionage Act case nearly two decades ago, the First Amendment “does not simply vanish at the invocation of the words ‘national security.’” In that case, the Justice Department successfully prosecuted a former government employee who stole classified photos of Soviet naval vessels and gave them to the press. Yet the publications that ran the photos were not prosecuted, a point emphasized by the Fourth Circuit.
Even if the constitutional and statutory arguments do not carry the day for all conservatives, we should think long and hard about the implications of press indictments. Prosecutors are given extraordinary discretion in deciding whom to indict. At some point, conservatives will not be running the Justice department, and the targets of these investigations might not be left-leaning newspapers. Rather, they could be right-leaning publications pointing out the national-security missteps of a liberal administration. Prosecutorial authority should not be used to further political ends–and certainly not to curtail legitimate reporting or public discourse.
The Founding Fathers understood that a free and independent press is critical to self-governance and to the constitutional order they established. The Constitution states that Congress “shall make no law” abridging the freedom of the press. This mandate is clear and unmistakable. The press should be free to publish news reports without fear that Congress will criminalize those publications.
Publishing classified information is not the same thing as stealing state secrets or spying for the enemy. There is a distinction between clamping down on government employees who leak sensitive national security information and targeting the reporters who publish those leaks. It is one thing to question the wisdom or propriety of publishing sensitive national-security information, or to allege media bias. But it is quite another to call for the criminal prosecution of journalists for reporting on matters of public concern, even when those matters implicate national security. Not every embarrassing or unfortunate disclosure is a criminal act.
Sensitive information should be treated sensitively, even by journalists. Conservatives, however, should be wary of novel applications of vaguely worded criminal statutes, particularly in the face of clear constitutional text. If the Justice department were to go ahead and prosecute journalists for reporting on such information, it would unduly hamper press freedom and set a dangerous precedent that conservatives would come to regret.
– NRO Contributing Editor Jonathan H. Adler is a law professor at Case Western Reserve University. Michael Berry is an associate at Levine Sullivan Koch & Schulz, LLP, where he specializes in media law.