Opening Argument February 2006

Leak Prosecutions: The Gathering Storm

Some officials are itching to use the threat of long jail terms and massive fines to force reporters to finger their confidential sources.

The news media's ability to use leaks to keep the White House honest is threatened as never before by the unanticipated consequences of the investigation into the White House's own leaks of classified information to discredit a critic.

Some government officials are itching to exploit that investigation as a precedent for using the threat of long jail terms and massive fines to force reporters to finger their confidential sources. The precedent was set, ironically, by the special counsel investigating leaks by White House officials, including (we now know) Karl Rove and I. Lewis (Scooter) Libby.

Few leakers and no reporters in American history have been prosecuted for disclosing classified information. But that may change.

Under the Justice Department's interpretation of a 1917 espionage law, both those who leak government secrets and those who publish them are felons. It may be no defense to argue that the leaks did little damage to national security, or that they exposed official misconduct or deception.

Subpoenas of journalists have not been so common in more than 30 years. Former Pentagon official Lawrence Franklin was sentenced to 12 years in prison last month for orally sharing classified information to help two then-staffers of a pro-Israel group lobby for a harder line on Iran. Those two men face trial in April for receiving classified information and sharing it with reporters and Israeli officials. They are the first private citizens ever prosecuted for such activities. Reporters could be next. Meanwhile, Senate Intelligence Committee Chairman Pat Roberts said on February 17 that he may push for new legislation making it easier to prosecute leakers.

Unless wise heads in the Justice Department, the judiciary, Congress, and the media themselves steer a steady course through this gathering storm, the executive branch will acquire more power than ever to hide its actions from public and congressional scrutiny.

This prospect may not trouble you if you think that President Bush and his successors should have remained free to continue his secret warrantless surveillance program forever, with no real congressional or judicial oversight and in disregard of the Foreign Intelligence Surveillance Act.

And it may not trouble you if you think that we should never have known about the classified August 2002 Justice Department memo claiming that the president has virtually unlimited power to order the torture of suspected "enemy combatants" in disregard of federal criminal law. Or if you wish that the Watergate cover-up had succeeded.

But for those who see undue secrecy as an incubator of deception and abuse, there is cause for alarm.

A troublesome chain of events began in the summer of 2003, with the White House leaks of the identity of undercover CIA agent Valerie Plame in the wake of her husband's highly publicized attacks on Bush's claim that Saddam Hussein had sought uranium in Africa. The media clamored for an aggressive investigation by a special prosecutor. To their misfortune, they got one: U.S. Attorney Patrick Fitzgerald, of Chicago.

For decades, federal prosecutors had shied away from subpoenaing reporters. Even after the Supreme Court's 1972 ruling that reporters can be jailed for refusing to disclose their sources, prosecutors assumed that subpoenas would bring them only hostile publicity because reporters would choose jail over betrayal.

But by the time of Fitzgerald's appointment, trust in the media had fallen so far that hostile publicity had lost some of its sting. Then the dogged Fitzgerald showed that the threat of significant jail time can force some big-time reporters to reveal their sources. He also showed that mounting fines and fallout from contempt-of-court citations could force a powerful media company (such as Time magazine) to turn over e-mail records outing a reporter's source.

Prosecutors everywhere took note.

So did administration officials eager to build on Fitzgerald's successes in order to punish leakers and the media alike.

"I've called in the FBI, the Department of Justice," CIA Director Porter Goss told the Senate Intelligence Committee on February 2. "It is my aim, and it is my hope, that we will witness a grand jury investigation with reporters present, being asked to reveal who is leaking [classified] information." Bush himself said in December that it had been "shameful" for The New York Times to expose his warrantless surveillance program.

There is nothing new about officials complaining that classified leaks harm national security. Sometimes they have been right. But much of the time they have been wrong.

Presented by

Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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