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Leak Case Highlights Tensions Between Government and Media

Central Intelligence Agency employee Mary McCarthy was fired Thursday for a pattern of leaking information. The firing of McCarthy and the clampdown on leaks comes amid new tensions between the government and the media.

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    Mary McCarthy, the CIA officer fired last week as part of a wider agency leak investigation, has now denied she was a source for last fall's Washington Post stories about secret CIA prisons overseas. The stories' author, Dana Priest, won the Pulitzer Prize for beat reporting last week.

    The McCarthy firing and the clampdown on leaks comes amid new tensions between the government and the media.

    Another Pulitzer Prize-winning story from the New York Times has been denounced repeatedly by President Bush and other administration officials. It dealt with a secret National Security Agency surveillance program that reportedly is monitoring thousands of Americans without warrants.

    In another case, Steven Rosen and Keith Weissman, two former officials of AIPAC, a pro-Israel lobbying group, are now being prosecuted under the 1917 Espionage Act for allegedly receiving and transmitting national defense information about Iran to journalists and Israeli officials.

    In a related matter, the FBI is seeking to review the files of the late muckraking columnist Jack Anderson for any information he might have had regarding AIPAC. His family is fighting an FBI attempt to review the journalist's voluminous archive for any classified information Anderson received over his career.

    And we look at some of the issues raised now with Lucy Dalglish, the executive director of the Reporters Committee for Freedom of the Press, a nonprofit organization that provides legal advice to journalists.

    Gabriel Schoenfeld, senior editor for Commentary magazine and former senior fellow at the Center for Strategic and International Studies.

    And Geoffrey Stone, professor of constitutional law at the University of Chicago.

    And welcome to all of you.

    Lucy, starting with you, what's going on? Do you tie all these things together into a more aggressive stance by the government?

    LUCY DALGLISH, Reporters Committee for Freedom of the Press: Oh, there's no question the government is becoming more aggressive, and I think it's a pretty clear reflection of the climate of secrecy that we've seen over the last three or four years.

    You know, last year in 2004, we had 15.6 million classification decisions made by the government, and that's more than double three years earlier. When that happens, that means that reporters, the only way they can get information or one of the only ways they can get it is if people within the government give it to them.

    And guess what? The only way they're going to cooperate is if you promise them confidentiality. So you have this cycle: You have reporters then promising confidentiality; then, you have the administration and government agencies going ballistic and launching these leak investigations.

    And so, as a result, we have journalists out there trying to keep these sources confidential but at the same time trying to report to the public the news. They're trying to dance that really delicate balance between the public's right to know and the nation's need to keep some secrets.


    Mr. Schoenfeld, do you see a crackdown on journalists or a proper rebalancing of this equation that Lucy Dalglish just brought up?

    GABRIEL SCHOENFELD, Former Senior Fellow, Center for Strategic and International Studies: No, I don't see a crackdown. And, in fact, I wish the government would act more vigorously against some of the leaks and some of the media outlets that have been publishing the leaks.

    I mean, the New York Times, back in December, published a story that the administration warned it in advance would compromise ongoing counterterrorism investigations of al-Qaida operating in this country. The Times sat on the story for a time, but then was continually warned by the administration, and went ahead, and published it.

    The damage is hard to evaluate because we're not privy to the workings of the program, but even Democrats on the House Intelligence Committee have said that the damage was critical to one of the most important national security programs we have running.


    And, Professor Stone, let me bring you in. Tell us about the state of the law here. How clear is it, especially in terms of the ability of government to investigate or go after the receiver of leaks, that is, the journalists?

    GEOFFREY STONE, Professor, University of Chicago: Well, with respect to the receiver, the journalists, the government is very limited and even more so when it comes to the press.

    Mr. Schoenfeld refers to the New York Times publication and to the Espionage Act. And this administration has made the rather extraordinary threat of possibly criminally prosecuting the New York Times for the publication of information about the NSA surveillance program.

    We've gone more than 200 years of American history without a single instance in which the federal government has prosecuted the press because of its publication of information that is of importance to the public.

    And in the NSA surveillance situation, it seems me unequivocal that the information is important to the public because the clear difficulty here is that the authorization by the president to the NSA violates federal law.

    And that being so, the notion that the government can then prohibit the publication of such information seems to be completely incompatible with the idea of a self-governing society.


    Well, Congress was briefed on the ongoing NSA program, leading members of both houses and both parties.

    And there were channels that, where if people objected to the program, they could have proceeded and without compromising the program and turning it over to the New York Times, in violation of the oaths of people who were sworn to secrecy and in violation, in fact, of federal statutes, because Section 798 of the Espionage Act and Title 18 does say that it's a crime to publish — publish — classified information pertaining to cryptography, which is what this information was, in the NSA story.


    But no one in the United States…


    Let me get — go ahead. Go ahead, Professor Stone.


    Yes, thank you. No one in the United States signs a contract or a promise that prohibits them from publishing or disclosing to the public criminal activity by the federal government.


    That's completely untrue, because there's the 1998 Intelligence Community Whistleblowers Act that gives a whole series of private, classified channels for people who become aware of illegal activities within the intelligence community, and that's the direction that people who are aware of illegal activities have to follow.

    It cannot go to the New York Times; that is clearly illegal.


    All right, gentlemen, let me bring Lucy Dalglish back in. While this legal argument is going on, are you seeing an effect already among the reporters you work with?


    Oh, absolutely. I mean, I hear about it everyday. We're hearing that some sources are saying, "I can't talk to you anymore, because, you know, the agency I work for is getting far more aggressive."

    I've talked to bureau chiefs who have said they have lost stories that they would have gotten in the past. We have newsrooms that are spending enormous amounts of money fighting off subpoenas as part of some of these leak investigations.

    We have, you know, just general seminars being held in newsrooms on what kind of notes you can keep, how to handle your sources, how to avoid getting involved in telephone conversations with your sources that could be tapped by the government.


    And what is the answer for journalists, in terms of notes, for example? Are they being told, "Hey, maybe you should be destroying them"?


    Well, you certainly shouldn't be putting them on the Internet or, I'm sorry, on your own computer e-mail. Reporters are being far more careful about how they're handling that particular type of information.

    But there's no question that it is having the classic chilling effect on the ability of journalists to do their jobs. Now, it's harder. That doesn't mean that they're not doing the job anymore; they are just having to work smarter.

    And I'd just like to point out here, before we bash the New York Times a little bit too much, I think there's a lot of misinformation about what that story did.

    The New York Times did sit on the story for about a year. They were very careful, as all journalists are before they release confidential or, I'm sorry, classified information.

    But, you know, did anybody seriously think we weren't tapping into some of those phone lines and listening to some of those conversations? I think the news that the New York Times reported was the fact that this may have been going on without getting the court approval that many of us always thought we needed to get.

    I think that the New York Times is being unfairly persecuted by some people in connection with this story.


    Let me go back to Professor Stone. You have argued elsewhere that journalists are promising too much and relying too much on the old privilege that they can give to sources. Do you still think that journalists need to mend their ways in that regard?


    Well, the problem isn't journalists so much as it is federal law. Although 49 states and the District of Columbia recognize a reporter's privilege that protects a privilege in reporters in gaining information from confidential sources, the federal government does not have such a privilege.

    So my point is two-fold: first, that reporters should not be promising what they cannot deliver under the law, which is the ability to protect, consistent with law, the confidentiality of sources where there's a federal prosecution; but, on the other hand, there should be a federal statute that recognizes a very broad reporters' privilege, like the one that exists in virtually every jurisdiction in the United States.


    Mr. Schoenfeld, what do you think a journalist should do when that call comes from, let's say, an intelligence officer who wants to pass on some information? Who makes the call about whether certain information can be used or not?


    Well, in the New York Times case, the journalists, the New York Times editors went to the White House and told them what they had. And the White House told them: Look, we're in the middle of a war against a very dangerous foe that's attacked us on our own soil. Don't publish this information.

    The Times went ahead and published it. I think it was an act of gross irresponsibility.

    There are occasions when classified information is improperly classified, and newspapers have a role in exposing those kinds of abuses, but I think the caution has been thrown to the wind in the New York Times case, and I think as well in the Washington Post case, although it's much less clear in that case whether there was a violation of any law.


    And, Lucy Dalglish, do you think this has to be left to the reporters? In other words, do you err on the side of the freedom of the press in this case?


    You know, in the case of the Washington Post and the New York Times stories, yes, I do. I think they were both very important stories.

    But this conversation reminds me of the quote from the late Justice Potter Stewart, that says, when everything is classified, then nothing is classified. And when there is too much information being kept secret, then there's too much ability for people to get in there and manipulate the use of that information for their own self-promotion or their, you know, own misuse.

    And I think we are coming dangerously close to that scenario where this government is keeping way too many secrets, and we need to carefully re-evaluate how that process works.


    Professor Stone, just one last word. We have about 30 seconds. Will this be resolved in the courts, or how?


    Well, it may or may not eventually be resolved in the courts. Certainly, if there are criminal prosecutions of the sources of, for example, the NSA surveillance story or of the New York Times, which I think is highly unlikely, then courts will certainly address those issues and, I believe, protect the First Amendment in those circumstances.

    But it may well be this is a situation where we don't really need a resolution. We have been through 200 years of history without having these cases ever brought, without having such prosecutions, and there's no reason for them today.


    All right. Jeffrey Stone, Gabriel Schoenfeld and Lucy Dalglish, thank you all very much.


    You're welcome.




    Thank you.

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