We examined last week some of the consequences of the Bush administration’s attempt to suppress publication of routine—and not so routine—government information. The question for both the Obama administration and the media that will be covering it is: “what now?”
The Bush administration’s most effective legal tool in dismantling legal protections that have protected freedom of the press since the birth of the United States has been the Espionage Act of 1917. Only a week after the declaration of war in April 1917, President Woodrow Wilson established the Committee on Public Information, headed by newspaper editor George Creel. The CPI not only disseminated public information about the war effort; it also coordinated government propaganda efforts, including a censorship code adhered to voluntarily by many newspapers.
Two months later, the Espionage Act took censorship efforts even further, making it a crime punishable by heavy fines and imprisonment to willfully make false reports or statements that interfered with the military effort. The law empowered the postmaster to refuse to deliver any material alleged to violate the act, and indeed, 44 papers lost their mailing privileges and another 30 kept them only by agreeing not to print anything further relating to the war.
Many provisions were repealed in 1921, but some remain on the books, and these proved especially useful to the Bush administration. An espionage trial in February 2006—The United States of America v. Lawrence Anthony Franklin, Steven J. Rosen, Keith Weissman—began in Alexandria, VA. Franklin, who was employed at the Pentagon, was charged with talking to American Israel Public Affairs committee analysts Rosen and Weissman about classified material. The charges against Franklin weren’t that unusual, but the ones against Rosen and Weissman certainly were, since neither worked for the government or even enjoyed the privilege of a security clearance.
Their crime? Receiving information “for subsequent unlawful communication, delivery and transmission to persons not entitled to receive it.” The key words are “persons not entitled to receive it,” which is virtually everyone in the United States without a security clearance, most notably journalists. Any national security journalist worth his or her paycheck makes a living receiving information that they are not entitled to receive. If Rosen and Weissman were convicted, the legal theory established could just as easily apply to The New York Times.
Floyd Abrams, a noted First Amendment attorney, called the case “the single most dangerous case for free speech and free press” that he’d ever seen.
The example of a New York Times being prosecuted under the Espionage Act, sadly, is not theoretical. As the AIPAC trial was underway, the Department of Justice was conducting a broad investigation into a Times story the previous December that disclosed the National Security Agency’s warrantless wiretapping program. The administration claimed to be going after the leakers inside the National Security Agency—something that wouldn’t happen if the United States had a federal shield law, as we suggested in a recent Think Again column—but even more ominous threats were directed at the actual reporters.
An article in Commentary by senior editor Gabriel Schoenfeld lit up the conservative blogosphere, as it suggested the reporters could be prosecuted under the Espionage Act.
Porter Goss, CIA director at the time, didn’t explicitly call for such prosecutions, but said that, “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 this information. I believe the safety of this nation and the people of this country deserve nothing less.”
As if the prospect of forcing reporters to testify wasn’t scary enough, Vice President Dick Cheney raised the stakes later that week. He said on a right-wing radio program that he agreed with Goss’s statement, but found it “rather restrained.”
There it was. The theory of prosecuting the Times reporters was already very popular among right-wingers, and Cheney—both a reluctant interviewee (see last week’s column) and a careful chooser of incendiary words (see “mushroom clouds”)—put a strong shoulder into the debate and moved the prospect of prosecutions forward.
We should note that the threats directed at the Times were particularly frightening considering that the paper already acted with excessive, shall we say, caution, delaying the publication of its massive scoop on domestic wiretapping for more than a year until just before its reporter was going to publish a book that would have scooped the paper.
Most legal scholars agreed that applying the Espionage Act in this fashion was unconstitutional; the proposed Espionage Act did make publishing sensitive information a crime, but Congress refused to allow it and specifically narrowed the application to foreign spies. The postal service restrictions remained as a tool to tamp down on the press, but have since been repealed. But apparently nobody told the administration or its allies in the right-wing press.
The Times reporters were never ultimately prosecuted or compelled to testify. But the administration attempted to advance the legal doctrine that reporters could be prosecuted simply for receiving sensitive information in several other cases.
As I wrote in an update to my 2005 story about Bush’s war on the press, the Department of Justice sought to obtain the private papers of the late muckraker Jack Anderson, using the Espionage Act as justification. The government claimed, according to Anderson’s son Kevin, that they expected to find information relating to the AIPAC case—a transparently ludicrous claim, since Anderson was diagnosed with Parkinson’s disease in 1990 and did little investigative reporting in the last decade of his life.
In a little noticed case in California, FBI agents contacted reporters at the Sacramento Bee about stories the paper published which were based on sealed court documents related to a terrorism case.
The administration also threatened The Washington Post with identical prosecutions under the Espionage Act for Dana Priest’s Pulitzer-Prize winning reports on extraordinary rendition and CIA “black sites” abroad. Again, it’s alarming that the administration aggressively tried to punish the paper despite excessive and unnecessary editorial caution, as the paper agreed to withhold the names of the countries where CIA secret prisons had been set up, despite their easy availability on the Human Rights Watch website.
If you’re noticing a pattern among the suggested prosecutions—since they are primarily cases where serious administration wrongdoing was exposed—you have the right to be particularly alarmed. Leaking is not the primary offense here; as the events of the Plame case revealed, the administration had no problem with leaking, even harmful leaking, so long as it advanced its political goals. We know that Dick Cheney, I. Lewis Libby, and possibly Karl Rove felt no compunction about releasing classified data to sympathetic reporters such as Bob Woodward, Judith Miller, and Robert Novak to discredit critics of their plans for Iraq.
It’s no secret that this country lost sight of many of its most hallowed goals and traditions during this presidency. Here’s another one that Barack Obama and the members of his administration might wish to consider as they seek to regain that vision. Thomas Jefferson observed that, “Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions.”
We can’t say we weren’t warned.
Eric Alterman is a Senior Fellow at the Center for American Progress and a Distinguished Professor of English at Brooklyn College, and a professor of journalism at the CUNY Graduate School of Journalism. His blog, “Altercation,” appears at http://www.mediamatters.org/altercation. His seventh book, Why We’re Liberals: A Political Handbook for Post-Bush America, was recently published by Viking.
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