Why We Shouldn’t Prosecute the Reporters and Editors of the L.A. Times and New York Times — Just Yet
As I have argued before, whether to prosecute newspapers for giving up classified details of a successful anti-terror program is not a simple decision. I have discussed the relevant issues before, in a post that some misinterpreted as unqualified support for prosecution. (In fact, while I said that I found the pro-prosecution arguments persuasive, I also said that I had not yet made up my mind on the issue. That wasn’t posturing; I meant it.)
So it may surprise some that I have made up my mind, and have come to the conclusion that we should not prosecute the reporters and editors of the New York Times and Los Angeles Times — at least not now.
My full argument is in the extended entry. For those lacking the patience to wend their way through my whole argument, I’ll summarize it this way:
The decision to prosecute newspaper personnel for publishing classified information is a vexing one that pits the core American value of free speech against a legitimate need for secrecy in some areas. I think that, in the particular circumstances of this case, a good argument can be made that a prosecution would be consistent with the relevant statutes and the Constitution. However, it is by no means certain that we would obtain a conviction — and prosecutions would be very bad public relations.
Accordingly, we should concentrate on finding the leakers, first and foremost. If that means dragging some journalists before a grand jury and forcing them to out their sources or go to jail, then so be it.
The full argument is in the extended entry.
One reason this is a tough issue is because it pits two very important principles against one another. On one hand, there is our right to know the workings of government, especially when it is engaged in potential wrongdoing. On the other, there is the government’s duty to protect us against serious security threats — and the secrecy that such efforts often require.
Hand in hand with these questions goes the vexing issue of who gets to decide.
Each side can easily present examples of extremes. On the pro-publication side, Jon Henke asks:
Can anybody argue that—to take an extreme example—were the John Doe administration to start a classified program of detaining and killing US citizens, it would be wrong for the media to report on it?
Who gets to decide whether publication of the details of such a program could legally be punished? Certainly we would all agree that the President should not have the exclusive say.
But to take an extreme example on the other side, I’m sure we can all agree that newspapers should not be allowed to publish the existence of an imminent plan to disrupt a terror cell that is on the verge of executing a terror attack with WMD.
Who gets to decide whether publication of the details of such an operation could legally be punished? Certainly most of us would agree that newspapers should not have the exclusive say.
The problem is that many cases fall into a gray area, somewhere in the middle. In a given case, conservatives might think that the classified information is critical, and the potential for wrongdoing is minimal. Liberals and hard libertarians can look at the same information and argue that the information is obvious and should not even be classified — but that the dangers to privacy are significant.
Who gets to decide?
There are really two questions there. First, who gets to decide whether the information will be published at all? Second, who gets to decide whether the publication can be criminally punished?
Believe it or not, they are legally separate issues. You might be able to punish publication after the fact, but be powerless to prevent it before the fact.
As to the first issue — can the information be published to begin with? — the law is clear: in almost every case, the newspaper gets to decide. Prior restraint doctrine in this country is so strict that, in virtually any scenario with any shades of gray, courts will prevent the government from stopping the printing presses at gunpoint.
As to the second issue — can the publication be criminally prosecuted? — the answer is more subtle and wide-ranging.
The analysis begins with the fact that we are a nation of laws, not men. Individual decisionmakers, faced with the “who decides” question raised above, are constrained by the law.
Accordingly, the analysis begins with Congress, which gets to set the applicable laws. Any such laws must of course pass muster under the First Amendment. If they do, then there is another layer: prosecutors must exercise their discretion.
If these were the only hurdles to overcome, the decision would still be a tough one, but the arguments for prosecution would be very strong.
As I have read about and discussed this issue over the past few days, I have become convinced that there is indeed a law on the books, duly passed by Congress, which criminalizes the publication of articles recently printed in the New York Times and Los Angeles Times.
It is not a treason statute, or even the Espionage Act, but rather a specific statute called the Comint statute. It governs the unauthorized publication, to the detriment of the United States, of classified information concerning the communication intelligence activities of the United States. I discussed that statute, and why I think it has been violated, in this post.
As to the First Amendment issue, I provided links in this lengthy post stating that the consensus of experts was that the statute probably would pass constitutional muster — unless, perhaps, the articles could fairly be said to be revealing of governmental wrongdoing.
I don’t think they are.
And I think that a prosecutor could easily exercise his discretion to prosecute. The potential damage of these articles is great. There is a significant governmental interest at stake: the need for secrecy on important confidential anti-terror programs.
But there’s still one step left before we get to consign the journalists to prison. And it’s a big one.
If prosecutors decide to prosecute, it’s ultimately up to a jury of 12 citizens, who must find the defendant(s) guilty beyond a reasonable doubt.
And there’s the rub. Because I strongly doubt that we could find a jury of 12 people to convict.
These issues are so politically polarized that it seems you can’t get people to analyze them with any objectivity whatsoever. Ardent blog readers and commenters know, perhaps more than most, how unreasonable some people can be when you challenge their political beliefs. Reason goes out the window. They’ll deny that the sky is blue if helps them make a political point.
There are some people who are so disenchanted with Bush and his administration that they’d support the publication of almost any article that attacked Bush — regardless of the damage the article might do to the country.
Moreover, it is not only hatred of Bush that drives suspicions of government surveillance. Some libertarian Republicans have issues with the privacy aspects of the Swift bank tracking program. I think they are dead wrong, but my opinion doesn’t change theirs.
Unless a prosecutor could exclude all such people from the jury — and he probably could not — then it seems to me that no prosecutor would ever get a conviction of a reporter or editor for violating the statute discussed above. The anti-Bushies on the jury would see it as a partisan prosecution. And the libertarians would not be able to get over the privacy issues, and the fact that newspaper people are being prosecuted for publishing something.
I just have a hard time seeing how you could get 12 people to agree on anything with such political overtones.
(Similar reasoning may have underlay the decision not to prosecute President Clinton criminally for his clear perjury, by the way.)
This is, in and of itself, not a valid reason to forego a prosecution. If a prosecutor believes that a reasonable jury would convict, the prosecutor is not supposed to make decisions based upon what an unreasonable jury would do.
But there is an even more significant issue: public relations.
We’re looking not only at what a prosecutor would do, but how the newspapers would play such a prosecution in the court of public opinion. They could portray themselves as First Amendment martyrs, and much of the public would buy it.
These bastards in the media are on their heels today. Look at how Bill Keller is on the defensive. The same thing has happened to Doyle McManus of the L.A. Times, and is likely to happen to Dean Baquet as well.
But if the Bush Administration indicts Bill Keller, look out. You think Islamic terrorists play the martyr card? You ain’t seen nothin’.
As my friend Allah has said (and you’ll rarely find anyone who can muster such eloquence and power of expression in a blog comment!):
If they start prosecuting journalists, it’ll lend surface credibility to all the whining about creeping fascism. Some independents will respond to that, and we’re in a tough enough position electorally right now that that’s not a risk that should be taken lightly. Would you prefer having an obstructionist Democratic Congress passing presidential censure resolutions to mark the occasion every time one of these articles is published?
Again, this isn’t necessarily a reason to forego prosecution entirely. Lots of defendants play the martyr card — but breaking the law is breaking the law. And I have pointed out that there is a slippery slope issue involved in not prosecuting. We run the risk of allowing newspapers becoming the final arbiters of what classified information remains classified — even though nobody elected them to make these decisions, and they necessarily make them based on overly limited information.
So I wouldn’t give up the notion of prosecution entirely.
But we have to understand the political risks involved.
So with all of the above in mind, I think we have to recognize that we have a higher priority here: to find and prosecute the people who leaked this information.
These people are presumably inside government, but possibly not. Either way, we have to learn who it was, and whether they broke any laws. (If they are inside government, they almost assuredly did.)
We should prioritize that hunt. As happened in the Plame investigation, journalists should be hauled before a grand jury and questioned regarding their sources. If they refuse to answer, they should be held in contempt and jailed.
To the extent that a credible threat of prosecution can ethically be used in such an investigation, I would not oppose that.
But there’s time to save the media prosecutions for another day.
Let’s keep our eye on the ball. Find and prosecute the leakers.
UPDATE: I’m not saying Andrew McCarthy has been reading my blog, but he’s saying the same thing. His emphasis — a worry about losing on appeal — is, I think, putting the cart before the horse. I worry more about winning the jury trial. But his bottom line is the same: catching the leakers is the top priority.