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- Mark Corallo
Former director of public affairs, Justice Department - James Goodale
First Amendment attorney - Seymour Hersh
Writer, The New Yorker - John Hinderaker
Blogger, Power Line - Eric Lichtblau
Reporter, The New York Times - Walter Pincus
Reporter, The Washington Post - Brian Ross
Chief investigative correspondent, ABC News - Bill Sammon
Reporter, The Washington Examiner - David Szady
Former assistant director of counter-intelligence, FBI
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.
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.
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.
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. ...
You say there's no Official Secrets Act, but in fact there is. There's an Espionage Act, and it says public information and possessed information that's classified. It just hasn't been enforced.
Yeah, an Espionage Act that certainly has never been used in that way to go after reporters before. There may be people in the government who would like to interpret the Espionage Act as our version of Britain's State Secrets Act, but it's certainly never been interpreted that way before.
But they're threatening now. I think it's Rep. Peter King [R-N.Y.], who's the chairman of the House Homeland Security Committee, has said it publicly, right?
Yeah. I think we've seen ... quite a pushback in the last week or so after our SWIFT banking story ran, with numerous leaders in the media field [and] national security experts saying, hang on a minute here, did the story really disclose anything that the terrorists were not already well aware of? There have now been a whole slew of stories making the point -- the same way that we debated internally for weeks and weeks -- that there is an almost limitless supply of information from 2001 through the point of our story about the fact that the government is aggressively tracking the finances of Al Qaeda, ... so much so, in fact, that Al Qaeda had started in 2001, 2002 to move money out of the traditional banks. The idea that our story ... gave the enemy some tangible information that they didn't know, I think people are starting now to realize that argument may ring a little hollow.
... This administration, in the context of classification and secrecy -- in part because they've got this terrorism fear thing which they've been working up to and working the public on -- they've become much stronger about secrets. I think the step they've taken, which is to start employing the Espionage Act and the threat of the Espionage Act, puts them in a whole different category.
The Espionage Act was passed in 1917. It's got a provision in it that says that anybody who is not entitled to receive national defense information -- doesn't describe what that is -- … who receives it and then transmits it to anybody, us, that's unauthorized.
Or publish it?
Well, publish, talks about it, anything -- is in violation of the act. What this administration has done is gone back to the famous Pentagon Papers case and used the opinions of several [Supreme Court] judges, including Potter Stewart, who said prior restraint was wrong; stopping the Times or trying to stop the Post from publishing before they publish was wrong; [that] what the Nixon administration should have done is use the Espionage Act after they publish. This administration has resurrected that.
A friend of mine who worked in the Justice Department on these cases for years said there always was a gentleman's agreement it would never be used against the press. In fact, there is a debate going back to 1950, when it was renewed, that it wouldn't be used against the press.
This administration ... hasn't yet, but it is using it against two civilians, non-government people, who are lobbyists for a pro-Israeli group and have indicted them for violation of the Espionage Act. That case is pending. ...
And as I understand it, in that motion, one of the former advocates for the Justice Department has filed an affidavit. Is that correct?
Viet Dinh, who was [in] the Office of Legal Counsel in the Justice Department, [who] helped write the Patriot Act, has actually filed a very strong memorandum on behalf of the defendants saying, "This goes too far," and that the act is too vague and it should be held unconstitutional.
We interviewed [former Justice Department Director of Public Affairs] Mark Corallo the other day. ... He said, "Somebody was asleep at the switch at the Justice Department." He doesn't understand why they did this. He's at a loss.
What I'm surprised he doesn't know is that the indictment in the AIPAC case, the American Israel Public Affairs Committee, the indictment in that case was brought by Paul McNulty, who is the deputy attorney general today. And there is a representative of the attorney general who's part of the trial team for the prosecution.
This is a case that they know full well all about and are pursuing it and have made clear in their filings, and the judge has made in his opinions, that this could very easily not just apply to civilian lobbyists, but apply to journalists, apply to think tank people, apply to any kind of academic doing research in the world of national security. ...
One of the counts against these lobbyists is that they received, orally, classified information. Well, the whole question is, how are you going to tell when somebody tells you something that it's classified? If it's a classified document, it's got classification on it. Previous cases had that. But in this case, the first oral case, first case with civilians, how is the recipient supposed to know it's classified, other than the fact they were told by the Pentagon official who told them the information that this is classified?
Sounds like it might put a crimp in your style if this becomes the law.
Well, some people feel that way. I have a different view of things. Most of the times that I have confidential sources or get classified information, it's from people that I've known a long time who trust me and I trust them. ...
But what I hear you saying is that the AIPAC case -- with the Espionage Act as the reason for it -- would make it illegal for you to meet with your old friends, the people you're talking about, that were acquaintances or the people who trust you, and take possession of the information.
And print it, too, yeah.
Right. That's not going to affect how you do business?
No. (Laughs.) We've been doing this for years, and you just keep doing it. I've been involved in this for years. I was subpoenaed in the Valerie Plame case and Wen Ho Lee case, and I haven't lost sources. Sources still talk to me, and I still protect them. That's a part of the business.
Congressman [Peter] King [R-N.Y.], [state] Sen. [Jake] Corman [R-Pa.] and the attorney general of the United States [Alberto Gonzales] think it's even more serious, that people should be prosecuted for espionage. Just a bunch of smoke?
Well, they are politicians, and I think that doesn't solve the problem. It's foolish talk, frankly.
Other societies, you can't report this kind of material, period, right?
We're different. We have a First Amendment. It's one of the strengths of this country.
The reply is the Constitution is not a suicide pact.
And no one says it is. There's no story we would do here that would put in danger lives. When we've done stories, the argument was, well, you make it impossible, if you reveal this, for the CIA ever to make any more secret deals.
Well?
Well, it's not my job to protect the clandestine operations of the CIA when they make deals that would violate the country's own laws when they're making the deals.
Foreign intelligence operations and law enforcement agencies are sometimes reluctant to tell U.S. agencies what they know because it may be revealed, get leaked. So it does affect the CIA's ability, for instance, to share information.
The CIA objected to our story about the secret prisons they're operating in Europe, and their position was, essentially, "How are we ever going to be able to make any more secret-prison deals if you do this story?" Didn't put any lives at stake. It really didn't. ...
[With the subsequent story being published on this program concerning the monitoring of financial transactions of terrorists, there have been calls to look into charging The New York Times with violating the Espionage Act. What's your take on that?]
... In the end, from a political perspective, there's limited utility in really making a federal case against the media where you're trying to prosecute them and take them into court and everything like that. The old saying, you never want to pick a fight with a guy who buys his ink by the barrel. You're basically allowing The New York Times and the mainstream media to become martyrs and victims of the overreaching, evil Bush administration, Big Brother. I don't think it would necessarily serve the president's interest to do that.
It's probably appropriate for the president to rail against The New York Times, for Republicans to rail against The New York Times when they make these disclosures, but when it comes to actually hauling them into court and prosecuting them, I think the Republicans would risk overreaching and would risk a backlash. ...
The Espionage Act -- you investigate under that statute as well, right, when there's a leak?
Yes.
Is the Espionage Act your main legal jurisdiction?
Yes.
How does the Espionage Act apply to reporters?
Well, remember now, the reporter is not the subject of the investigation; the reporter is the individual who received the information. ...
You could look at it this way. Reporters are in the intelligence-gathering business. They're gathering intelligence. It's an intelligence operation. Unfortunately, in these cases when the FBI's involved, it's classified information. Now, when that information is taken by a reporter and it's made public, that information is common knowledge now for those who can use it against the United States or use it to neutralize things that the United States may be doing.
But isn't it a crime under the Espionage Act to have possession of information that you are not authorized to have?
Yes. ...
Reporters are worried that you might tell me, as an example, something that was classified and I might get prosecuted for knowing it.
Well, I can't ever recall a reporter being prosecuted.
So you don't think that will ever happen?
No. I mean, it could, depend[ing] upon what the reporter did with the information. ... You could make a case that putting it in a paper is giving it to a country that would disadvantage the United States. But you get into the whole issues in the media, and I think that those are clear. And back to the seriousness of whether or not you're going to interview or whatever, keep in mind, we're not looking at the reporter as the subject. ...