Opening Argument – Dumb and Dumber

National Journal

Comes now Attorney General Alberto Gonzales, a man not known for legal acuity, with a threat to prosecute The New York Times and other news media for publishing leaks of classified information.

Gonzales, who launched a major investigation late last year into such leaks, claimed in a May 21 ABC News interview that Congress has made a "policy judgment" that in some circumstances journalists should be prosecuted for publishing classified information.

This assertion is misleading at best. The 89-year-old espionage law to which Gonzales was mainly referring was not intended to prosecute anybody for publishing anything and has never been so used. This is an administration that has not hesitated to leak classified information that makes it look good — but calls it criminal for others to publish leaks that make it look bad.

Its most bitter complaints have been aimed at the Pulitzer-Prize-winning disclosure by The New York Times on December 16 of President Bush’s previously secret, warrantless eavesdropping program. Some serious scholars see that program as violating criminal provisions of the Foreign Intelligence Surveillance Act. I don’t, because the murkiness of the legal issues may absolve Bush of criminal intent.

But exposing arguably illegal presidential activities is what the First Amendment freedoms of speech and press are all about. Bush is a shameless demagogue for denouncing as a "shameful act" the exposure of his own circumvention (if not violation) of FISA.

Someone should tell Gonzales and Bush that the relevant congressional "policy judgment" here — one shared by the Constitution’s Framers — is that the president is not a law unto himself.

Does Gonzales think that Bush has the power to nullify not only FISA but also the First Amendment? Maybe he does. This is, after all, the same Gonzales who as White House counsel was content for two years with a then-classified Justice Department opinion advising that the president could nullify criminal laws against torture by ordering indiscriminate torture of anyone, anywhere, any time, for any reason that Bush associates with the war on terrorism.

Gonzales distanced himself from that indefensible memo only after it had been leaked to the press and repudiated by the Justice Department itself. Will he prosecute those who leaked it? Those who published it? And will he prosecute columnist Robert Novak, who first published the high-level White House leak of Valerie Plame’s classified identity as a CIA operative?

When it comes to leaking classified information, this administration has no standing to preach, let alone prosecute.

We have seen strong evidence that I. Lewis (Scooter) Libby and Karl Rove leaked Plame’s classified CIA role to reporters, in pursuit of Dick Cheney’s interest in discrediting criticisms by Plame’s husband, Joseph C. Wilson. The idea was to show Wilson to be a lightweight trading on his wife’s CIA connections. (He was. But that’s another story.)

Under the Gonzo doctrine, as I will call it, such leaks are felonies if the leakers and any co-conspirators knew that the information was classified. Libby knew, according to Special Prosecutor Patrick Fitzgerald. (Nobody has claimed — yet — that Cheney knew, or that he approved the Plame leak.)

Libby is not under indictment for leaking. The apparent reason is that Fitzgerald has too much sense to buy the Gonzo doctrine. Rather, he has charged Libby with lying to the FBI and to a grand jury to cover up the Plame leak. Libby’s main defense is failure of recollection.

Apart from the Plame leak, we now know that Bush authorized Cheney to authorize Libby to leak misleadingly one-sided classified intelligence to reporters to rebut claims that Bush had misled the public about Iraq’s nuclear program. Bush defenders stress that this was legal because the president has power to declassify information, even in such an irregular fashion. So he does. But his hypocrisy is no less rank.

All administrations have done selective leaking. And all have complained of leaking by their critics. The Nixon and Reagan administrations went so far as to prosecute government officials for leaking classified information to the media. They included Daniel Ellsberg, leaker of the Pentagon Papers, whose case was thrown out because of government misconduct.

Those prosecutions were at best problematic. While some leaks may have done real damage to national security, most — including the Pentagon Papers — have not. The executive branch classifies vast amounts of information to avoid political embarrassment, not (or not only) to protect national security. And leaks have for decades been both essential to informed political discourse on defense issues and an indispensable check on executive branch abuse.

Now the Bush-Gonzales Justice Department is pushing to go beyond anything attempted under Nixon or Reagan by seeking to engineer a legal precedent that would clear the way for the first prosecutions of journalists for publishing classified leaks in our history. The case is the pending prosecution of former pro-Israel lobbyists Steven Rosen and Keith Weissman under the 1917 Espionage Act for giving classified information to reporters (as well as to an Israeli diplomat).

Unlike the targets of previous leak prosecutions, the two lobbyists were not government employees and thus had not sworn to protect classified information. They were private citizens who had obtained the information from leakers and passed it along. That’s what reporters do. And the freedom to lobby — "petition the government" — is right there in the First Amendment alongside the freedoms of speech and press.

The main Espionage Act provisions that officials brandish against journalists (18 U.S.C. sections 793 and 794) are worded so broadly as to make it a felony, carrying a 10-year prison term, to disclose (or even to possess) any "information relating to the national defense" that "could be used to the injury of the United States or to the advantage of any foreign nation."

But these provisions cannot be read literally, or they would clearly violate the First Amendment. Such a sweeping, never-before-enforced ban would also be void for vagueness, in lawyerspeak, because it does not give citizens fair notice of what is prosecutable and what is not.

In addition, contrary to the Gonzo doctrine, the 1917 law was never intended by Congress to authorize prosecution of journalists. President Wilson’s initial proposal had a section explicitly making it a crime for the media to publish information said by the president to be potentially "useful to the enemy." Congress soundly rejected this as "an instrument of tyranny," in the words of one critic.

There is, to be sure, a more specific provision, added in 1950, that makes it a crime to "publish … any classified information … concerning the communication intelligence activities of the United States." (18 U.S.C. 798(a)(3))

That language fits the Bush eavesdropping program and thus provides the most plausible basis for prosecuting The New York Times and others who have published leaks about it. But section 798(a)(3) appears to run afoul of the First Amendment "overbreadth" doctrine, which the Supreme Court has developed to strike down speech restrictions broader than necessary to protect the government’s legitimate interests.

Aside from its importance to public debate, the December 16 article in The Times about the Bush eavesdropping program told our enemies nothing new about how we spy on them, except that the government sometimes bypasses FISA’s judicial-approval requirement.

Advocates of prosecuting journalists argue that it is up to the president, not the press, to decide how much secrecy is necessary to protect our security. So it is — in the first instance. Presidents can require government employees to sign confidentiality agreements. They can fire leakers. In aggravated cases, they can prosecute leakers.

But if they can also jail journalists and other private citizens who publish or pass along leaks, we will have taken a long step toward tyranny.

What would the courts do with such a prosecution? The legal precedents are sparse. The Supreme Court spurned Nixon’s 1971 effort to enjoin publication of the Pentagon Papers in advance. But the nine separate opinions in the case are less than reassuring. As Boston lawyer-author Harvey Silverglate writes, "Let’s not kid ourselves: five of the nine justices would have approved of criminal prosecution of the newspapers in the Pentagon Papers case."

Still, I’d be surprised if even Bush and Gonzales are foolish enough to prosecute journalists. Notwithstanding the unpopularity of the media, that might drive Bush’s approval ratings below 30 percent for the rest of his already blighted term.

There is not much chance that a New York or Washington jury would vote unanimously to convict in such a case. And if there were a conviction, the case would end up in a Supreme Court that seems sick and tired of this administration’s contempt for law.