Can the reporters and editors at the New York Times and Los Angeles Times be prosecuted for knowingly publishing classified information in an unauthorized manner, resulting in harm to the security of the United States? And if so, should they be?
I don’t know the answer for sure. When I call for an independent prosecutor (as I did in a previous post), I am seeking to find the people in the government who leaked this information. To find those people, we are going to have to demand that the reporters tell us who they are. Consequently, I want subpoenas issued to Eric Lichtblau, James Risen, and Bill Keller of the New York Times, and to Josh Meyer, Greg Miller, Doyle McManus, and Dean Baquet of the Los Angeles Times. If the reporters won’t disclose their sources, I want them thrown in the pokey, Judy Miller-style, until they do. This is far more important than the Valerie Plame case and I want to see it treated as such.
As to the separate question of whether these folks can and/or should be criminally prosecuted, I haven’t made up my mind. I lean toward the conclusion that prosecutions are possible and wise. But it’s not as obvious as you might think. In the context of the current situation, the answer may seem obvious. But it is easy to imagine other situations where it is not.
Let’s hypothesize that, in the future, President Hillary Clinton suspends an important operation against a terrorist organization because of concerns that the operation relies too heavily on racial profiling. A concerned career Justice Department official writes a memo to President Clinton disputing the allegations of racial profiling, and warning of dire consequences if the program is suspended. The memo is classified. Later, a terrorist cell that could have been stopped by the program sets off a dirty bomb in downtown Chicago. Thousands are killed. And someone leaks the classified memo to the New York Times, which publishes it.
Should the reporter be prosecuted? I think it’s obvious he should not be.
The fundamental questions include the following:
- Is the information classified because its release would jeopardize the country’s safety? Or is it classified because its release would tend to embarrass the Administration?
- In cases where there may be aspects of both, who gets to decide whether the information should be released?
I think most people would agree that the press should be able to publish information that has no real security value, but has been classified only to prevent embarrassment to a presidential administration — such as my example above. But I also think most people think that an administration ought to be able to punish people who publish classified information that has high security value, when there is absolutely no positive societal value to the dissemination of the information — such as my example from a previous post of publishing D-Day plans in advance of the attack.
But few scenarios are so obvious in either direction. And so the question arises: who gets to decide? Is it really the case that the press is allowed to take matters into its own hands, and the consequences to the country be damned?
It’s a tough issue, but there’s a good argument that Congress gets to decide, within the bounds of the First Amendment — and that it has already done so. The applicable laws, and the wisdom of applying them to journalists, is discussed in links provided in the extended entry, which provide some excellent high-level discussion of the issue on both sides.
For what it’s worth, I tend to think that, in the current context, the pro-prosecution commentators have the better argument. But I think it’s a tougher question than it might initially appear.
First, Jonathan Adler argues against prosecution for publication of classified information:
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.
This link quotes different experts who reach different conclusions:
The most authoritative analysis of the 1917 law, by Harold Edgar and Benno C. Schmidt Jr. in the Columbia Law Review in 1973, concluded, based largely on the law’s legislative history, that it was not meant to apply to newspapers.
A second law is less ambiguous. Enacted in 1950, it prohibits publication of government codes and other “communications intelligence activities.” Andrew C. McCarthy, a former federal prosecutor who took part in terrorism investigations in New York after the Sept. 11 attacks, said that both The Times, for its disclosures about the N.S.A. program, and The Post, for an article about secret C.I.A. prisons, have violated the 1917 law. The Times, he added, has also violated the 1950 law.
“It was irresponsible to publish these things,” Mr. McCarthy said. “I wouldn’t hesitate to prosecute.”
Not only is this provision completely unambiguous, but Edgar and Schmidt call it a “model of precise draftsmanship.” As they state, “the use of the term ‘publishes’ makes clear that the prohibition is intended to bar public speech,” which clearly includes writing about secrets in a newspaper. Nor is a motive required in order to obtain a conviction: “violation [of the statute] occurs on knowing engagement of the proscribed conduct, without any additional requirement that the violator be animated by anti-American or pro-foreign motives.” The section also does not contain any requirement that the U.S. be at war.
Schoenfeld’s conclusion, regarding the NSA program, would appear to apply with at least equal force to the publication of the details of the Swift program:
What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism. If information about the NSA program had been quietly conveyed to an al-Qaeda operative on a microdot, or on paper with invisible ink, there can be no doubt that the episode would have been treated by the government as a cut-and-dried case of espionage. Publishing it for the world to read, the Times has accomplished the same end while at the same time congratulating itself for bravely defending the First Amendment and thereby protecting us—from, presumably, ourselves. The fact that it chose to drop this revelation into print on the very day that renewal of the Patriot Act was being debated in the Senate—the bill’s reauthorization beyond a few weeks is still not assured—speaks for itself.
The Justice Department has already initiated a criminal investigation into the leak of the NSA program, focusing on which government employees may have broken the law. But the government is contending with hundreds of national-security leaks, and progress is uncertain at best. The real question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate secret and what is not. Like the Constitution itself, the First Amendment’s protections of freedom of the press are not a suicide pact. The laws governing what the Times has done are perfectly clear; will they be enforced?
Schoenfeld, by the way, appears to dispute Adler’s contention that no such prosecution has ever occurred before. Power Line has also analyzed the law and comes to the same conclusion.
Going back to the link above that set forth the Edgar and Schmidt analysis:
Even legal scholars who are sympathetic to the newspapers say the legal questions are not straightforward.
“They are making threats that they may be able to carry out technically, legally,” Geoffrey R. Stone, a law professor at the University of Chicago and the author of “Perilous Times: Free Speech in Wartime,” said of the administration. The law, Professor Stone added, “has always been understood to be about spying, not about newspapers, but read literally it could be applied to both.”
Others say the law is unconstitutional as applied to the press under the First Amendment.
“I don’t think that anyone believes that statute is constitutional,” said James C. Goodale, who was the general counsel of The New York Times Company during the Pentagon Papers litigation. “Literally read, the statute must be violated countless times every year.”
Rodney A. Smolla, the dean of the University of Richmond law school, took a middle ground. He said the existing laws were ambiguous but that in theory it could be constitutional to make receiving classified information a crime. However, he continued, the First Amendment may protect newspapers exposing wrongdoing by the government.
But what if the newspapers aren’t exposing wrongdoing? What if they are simply publishing classified information about a legal program that has had good success in capturing terrorists?
That’s the problem with the recent articles. High-level officials have provided concrete examples of real-world successes — successes that will probably save countless lives in the future. Against that, the articles have only the “concern” that the program might possibly violate some laws — despite the firm conclusion of government officials that it doesn’t.
If it turns out that the program was legal, and that it did save lives, and was properly classified, is the First Amendment really going to keep these journalists out of prison? And should it?
I have to say, if I were these reporters and editors, I’d be nervous.