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Prosecuting reporters/the Espionage Act

Mark Corallo

Former director of public affairs, Justice Department

Mark Corallo

Attorney General Gonzales has now hinted that maybe journalists should be prosecuted under the Espionage Act. ... [Did] that come up when you were in the Justice Department?

I never heard that before. However, I'm never going to foreclose any option that the government has, because you wouldn't want a reporter to be able to hide behind that so-called First Amendment shield and actually be a foreign agent.

However, I think that this is where we've all got to take a deep breath. From the attorney general on down at the Justice Department, and from the editor of The New York Times on down in the media, everybody needs to take a deep breath and step back and think about their roles, and think about what's good for America. I don't think it's good to be clapping journalists in jail. I also don't think it's good for newspapers to be deciding what national security secrets should be kept secret and what shouldn't. So there's got to be some balance.

James Goodale

First Amendment attorney

James Goodale

We have the AIPAC [American Israel Public Affairs Committee] case and the application of the Espionage Act in the AIPAC case. Is that a bad precedent for the press? ...

... This case is very unique. It troubles me for many points. First of all, ... the Bush administration is trying to stop leaks in a way that has not been done before as far as I know. ... The Bush administration is taking the position that what we have now in this country, as far as they're concerned, is an Official Secrets Act, whereby they can penalize any leak of classified information. That has not been what has happened in this country for 50 years. We've had leaks of classified information forever and ever. There are reporters who live on leaked information, who could not survive without leaked information. Now what the Bush administration is saying is, "We're going to stop all leaks, and we're going to punish them under the Espionage Act." ...

Do you think the Espionage Act is constitutional?

The Espionage Act applies to espionage. ... Isn't it strange we've got an act called the Espionage Act? What does that mean? That means ... I gave you this classified document; you're working for the Nazis; that's espionage. That's what that act was written about. It was not written about publication.

In fact, when the act was brought up on the Congress floor, somebody said it ought to apply to publication. And Sen. [Henry Fountain] Ashurst [D-Ariz.] … said, "No, under the First Amendment, you can't have it." They took it out. It was never meant to apply to publication. It was never meant to apply, in my humble opinion, even to leaking. It applies to -- guess what? -- espionage. …

So this is the first time that this relic of a law, a 1917 law, had been used to apply to leakees -- namely, the lobbyists -- because they receive the information. If it can be applied to them as leakees, then the government has jumped over a hurdle, which people have always thought was there in the Espionage Act, to reach reporters as leakees. ... It's the Espionage Act, not the Leak Act. They've turned it into the Leak Act, for leakees. ...

Is there any precedent for this?

I don't believe there's any precedent for this. ... The law has been sitting there for 90 years, and no one wanted to use it really. But the Bush administration really wants to use this old relic. ...

Doesn't it make sense to protect our [classified intelligence] from people publishing information about it?

Every issue relating to national security, there is a "makes sense" argument from the government's point of view. But the "makes sense" argument has to be consistent with the First Amendment. ...

Has the [AIPAC case] been a victory for the Bush administration?

The Bush administration, in my humble view, has waged a war against the press, and using the Espionage Act is part of its program to wage that war. ... The attorney general, Mr. [Alberto] Gonzales, said in an interview with network television that he was looking at the Espionage Act to use it against The New York Times and, indeed, against other newspapers. ... When he says there are laws on the books, well people who know know there are not many laws there other than the Espionage Act. So, he effectively is saying the Espionage Act can be used. ... Therefore, to have a decision that helps him take that move is very useful. ...

We have never had an Official Secrets Act in this country. ... We don't have it because of the First Amendment. We also don't have it because Congress has never been able to pass it. The last time it was up for passage, President Clinton vetoed it, so I would like to assert that what the Bush administration is doing, knowing that they can't get the law through Congress, is going through the back door. ... They're taking an old act that's got loosey-goosey language, and they're ... getting the law passed in court.

[Prosecution using the Espionage Act is] the first step in creating total executive control over our activities, ... a unitary executive who has total control over the information.

Seymour Hersh

Writer, The New Yorker

Seymour Hersh

When you hear the attorney general [Alberto Gonzales] say -- and I don't think any attorney general has ever said it in public before -- that they could use the Espionage Act [to prosecute reporters], you don't think that's a change?

I don't think they'd dare do it. Even [John] Ashcroft, at his worst days. I was told by a couple of people on Sept. 12, 2001, the day after 9/11, two different people called me, one from the military and one from a federal agency, saying these guys are going to ruin the Constitution. They'd gone to a meeting --"You can't believe…." Obviously he was talking about the wiretaps, the NSA stuff. And so I know.

But I say that underneath all of this bluster and talk and threats, anybody knows that if they make a serious move on the First Amendment, they do so at their political peril, because there's a real core in this country -- it may not be articulated very often, but there's a real core -- that if anybody ever really steps on our neck too hard, they're going to suffer; we won't. I do believe that.

John Hinderaker

Blogger, Power Line

John Hinderaker

The leaked story that most clearly violated the Espionage Act was the one relating to the NSA's international terrorist surveillance program, because there is a specific section of the U.S. criminal code -- section 793 -- that makes it a crime to disclose information about U.S. communications intelligence or information learned through communications intelligence. Section 793 applies squarely to that leak and the publication of that leak by The New York Times. There are some other stories where I think you can easily make the argument that it was a crime to leak the story, and arguably a crime to publish the story under section 798 of the criminal code. But there you have some broader language that would need to be interpreted and applied to the facts. ...

Eric Lichtblau

Reporter, The New York Times

Eric Lichtblau

You say there's no Official Secrets Act, but in fact there is. There's an Espionage Act, and it says public