Marinerhodes
Active member
Congress better REALLY protect the press...or...
From the NY Times:
In Leak Cases, New Pressure on Journalists
By ADAM LIPTAK
Published: April 30, 2006
Earlier administrations have fired and prosecuted government officials who provided classified information to the press. They have also tried to force reporters to identify their sources.
[Related:
The Nation: There Are Leaks. And Then There Are Leaks. (April 30, 2006) ]
But the Bush administration is exploring a more radical measure to protect information it says is vital to national security: the criminal prosecution of reporters under the espionage laws.
Such an approach would signal a thorough revision of the informal rules of engagement that have governed the relationship between the press and the government for many decades. Leaking in Washington is commonplace and typically entails tolerable risks for government officials and, at worst, the possibility of subpoenas to journalists seeking the identities of sources.
But the Bush administration is putting pressure on the press as never before, and it is operating in a judicial climate that seems increasingly receptive to constraints on journalists.
In the last year alone, a reporter for The New York Times was jailed for refusing to testify about a confidential source; her source, a White House aide, was prosecuted on charges that he lied about his contacts with reporters; a C.I.A. analyst was dismissed for unauthorized contacts with reporters; and a raft of subpoenas to reporters were largely upheld by the courts.
It is not easy to gauge whether the administration will move beyond these efforts to criminal prosecutions of reporters. In public statements and court papers, administration officials have said the law allows such prosecutions and that they will use their prosecutorial discretion in this area judiciously. But there is no indication that a decision to begin such a prosecution has been made. A Justice Department spokeswoman, Tasia Scolinos, declined to comment on Friday.
Because such prosecutions of reporters are unknown, they are widely thought inconceivable. But legal experts say that existing laws may well allow holding the press to account criminally. Should the administration pursue the matter, these experts say, it could gain a tool that would thoroughly alter the balance of power between the government and the press.
The administration and its allies say that all avenues must be explored to ensure that vital national security information does not fall into the hands of the nation's enemies.
In February, Senator John Cornyn, Republican of Texas, asked Attorney General Alberto R. Gonzales whether the government's investigation into The Times's disclosure of a National Security Agency eavesdropping program included "any potential violation for publishing that information."
Mr. Gonzales responded: "Obviously, our prosecutors are going to look to see all the laws that have been violated. And if the evidence is there, they're going to prosecute those violations."
Recent articles in conservative opinion magazines have been even more forceful.
"The press can and should be held to account for publishing military secrets in wartime," Gabriel Schoenfeld wrote in Commentary magazine last month.
Surprising Move by F.B.I.
One example of the administration's new approach is the F.B.I.'s recent effort to reclaim classified documents in the files of the late columnist Jack Anderson, a move that legal experts say was surprising if not unheard of.
"Under the law," Bill Carter, a spokesman for the Federal Bureau of Investigation, said earlier this month, "no private person may possess classified documents that were illegally provided to them."
Critics of the administration position say that altering the conventional understanding between the press and government could have dire consequences.
"Once you make the press the defendant rather than the leaker," said David Rudenstine, the dean of the Benjamin N. Cardozo School of Law in New York and a First Amendment scholar, "you really shut down the flow of information because the government will always know who the defendant is."
The administration's position draws support from an unlikely source — the 1971 Supreme Court decision that refused to block publication by The Times and The Washington Post of the classified history of the Vietnam War known as the Pentagon Papers. The case is generally considered a triumph for the press. But two of the justices in the 6-to-3 majority indicated that there was a basis for after-the-fact prosecution of the newspapers that published the papers under the espionage laws.
Reading of Espionage Laws
Both critics and allies of the administration say that the espionage laws on their face may well be read to forbid possession and publication of classified information by the press. Two provisions are at the heart of the recent debates.
The first, enacted in 1917, is, according to a 2002 report by Susan Buckley, a lawyer who often represents news organizations, "at first blush, pretty much one of the scariest statutes around."
It prohibits anyone with unauthorized access to documents or information concerning the national defense from telling others. The wording of the law is loose, but it seems to contain a further requirement for spoken information. Repeating such information is only a crime, it seems, if the person doing it "has reason to believe" it could be used "to the injury of the United States or to the advantage of any foreign nation." That condition does not seem to apply to information from documents.
In the Pentagon Papers case, Justice Byron R. White, joined by Justice Potter Stewart, said "it seems undeniable that a newspaper" can be "vulnerable to prosecution" under the 1917 law.
Indeed, the Nixon administration considered prosecuting The Times even after the government lost the Pentagon Papers case, according to a 1975 memoir by Whitney North Seymour Jr., who was the United States attorney in Manhattan in the early 1970's. Mr. Seymour wrote that Richard G. Kleindienst, a deputy attorney general, suggested convening a grand jury in New York to that end. Mr. Seymour said he refused.
http://aggravated.blogspot.com/2006_04_01_archive.html
(Continued Below)
From the NY Times:
In Leak Cases, New Pressure on Journalists
By ADAM LIPTAK
Published: April 30, 2006
Earlier administrations have fired and prosecuted government officials who provided classified information to the press. They have also tried to force reporters to identify their sources.
[Related:
The Nation: There Are Leaks. And Then There Are Leaks. (April 30, 2006) ]
But the Bush administration is exploring a more radical measure to protect information it says is vital to national security: the criminal prosecution of reporters under the espionage laws.
Such an approach would signal a thorough revision of the informal rules of engagement that have governed the relationship between the press and the government for many decades. Leaking in Washington is commonplace and typically entails tolerable risks for government officials and, at worst, the possibility of subpoenas to journalists seeking the identities of sources.
But the Bush administration is putting pressure on the press as never before, and it is operating in a judicial climate that seems increasingly receptive to constraints on journalists.
In the last year alone, a reporter for The New York Times was jailed for refusing to testify about a confidential source; her source, a White House aide, was prosecuted on charges that he lied about his contacts with reporters; a C.I.A. analyst was dismissed for unauthorized contacts with reporters; and a raft of subpoenas to reporters were largely upheld by the courts.
It is not easy to gauge whether the administration will move beyond these efforts to criminal prosecutions of reporters. In public statements and court papers, administration officials have said the law allows such prosecutions and that they will use their prosecutorial discretion in this area judiciously. But there is no indication that a decision to begin such a prosecution has been made. A Justice Department spokeswoman, Tasia Scolinos, declined to comment on Friday.
Because such prosecutions of reporters are unknown, they are widely thought inconceivable. But legal experts say that existing laws may well allow holding the press to account criminally. Should the administration pursue the matter, these experts say, it could gain a tool that would thoroughly alter the balance of power between the government and the press.
The administration and its allies say that all avenues must be explored to ensure that vital national security information does not fall into the hands of the nation's enemies.
In February, Senator John Cornyn, Republican of Texas, asked Attorney General Alberto R. Gonzales whether the government's investigation into The Times's disclosure of a National Security Agency eavesdropping program included "any potential violation for publishing that information."
Mr. Gonzales responded: "Obviously, our prosecutors are going to look to see all the laws that have been violated. And if the evidence is there, they're going to prosecute those violations."
Recent articles in conservative opinion magazines have been even more forceful.
"The press can and should be held to account for publishing military secrets in wartime," Gabriel Schoenfeld wrote in Commentary magazine last month.
Surprising Move by F.B.I.
One example of the administration's new approach is the F.B.I.'s recent effort to reclaim classified documents in the files of the late columnist Jack Anderson, a move that legal experts say was surprising if not unheard of.
"Under the law," Bill Carter, a spokesman for the Federal Bureau of Investigation, said earlier this month, "no private person may possess classified documents that were illegally provided to them."
Critics of the administration position say that altering the conventional understanding between the press and government could have dire consequences.
"Once you make the press the defendant rather than the leaker," said David Rudenstine, the dean of the Benjamin N. Cardozo School of Law in New York and a First Amendment scholar, "you really shut down the flow of information because the government will always know who the defendant is."
The administration's position draws support from an unlikely source — the 1971 Supreme Court decision that refused to block publication by The Times and The Washington Post of the classified history of the Vietnam War known as the Pentagon Papers. The case is generally considered a triumph for the press. But two of the justices in the 6-to-3 majority indicated that there was a basis for after-the-fact prosecution of the newspapers that published the papers under the espionage laws.
Reading of Espionage Laws
Both critics and allies of the administration say that the espionage laws on their face may well be read to forbid possession and publication of classified information by the press. Two provisions are at the heart of the recent debates.
The first, enacted in 1917, is, according to a 2002 report by Susan Buckley, a lawyer who often represents news organizations, "at first blush, pretty much one of the scariest statutes around."
It prohibits anyone with unauthorized access to documents or information concerning the national defense from telling others. The wording of the law is loose, but it seems to contain a further requirement for spoken information. Repeating such information is only a crime, it seems, if the person doing it "has reason to believe" it could be used "to the injury of the United States or to the advantage of any foreign nation." That condition does not seem to apply to information from documents.
In the Pentagon Papers case, Justice Byron R. White, joined by Justice Potter Stewart, said "it seems undeniable that a newspaper" can be "vulnerable to prosecution" under the 1917 law.
Indeed, the Nixon administration considered prosecuting The Times even after the government lost the Pentagon Papers case, according to a 1975 memoir by Whitney North Seymour Jr., who was the United States attorney in Manhattan in the early 1970's. Mr. Seymour wrote that Richard G. Kleindienst, a deputy attorney general, suggested convening a grand jury in New York to that end. Mr. Seymour said he refused.
http://aggravated.blogspot.com/2006_04_01_archive.html
(Continued Below)
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