Reporters or spies?

The prosecution of two lobbyists has raised fears that the Espionage Act could be used against journalists. It wouldn’t be the first time.

From the Fall 2006 issue of The News Media & The Law, page 4.

By Rani Gupta

In 1917, the United States prepared to enter what would be a controversial war with Germany. Americans had died in submarine attacks. The prospect of a draft drew vehement opposition. The president warned that German spies were everywhere, infiltrating American communities and the government.

President Woodrow Wilson warned that those who were disloyal had given up their civil liberties and that they would be handled with “stern repression.”

Two months later, after declaring war, he signed into law the Espionage Act, which detailed the offenses that would be considered spying and could be punished with jail time.

As part of the act, Wilson also wanted sweeping power to punish anyone the administration believed published information that harmed the national defense. Congress rejected the measure as an unconstitutional restraint of a free press.

Almost a century later, the prospect of charging a journalist under the Espionage Act is again a hot topic of debate because of the prosecution of two former lobbyists in a federal court in Alexandria, Va.

In August, U.S. District Judge T.S. Ellis III denied the lobbyists’ motion to dismiss the case, which is significant because the defendants are not government employees, as has been the case with other prosecutions under the act, and because the action the government has tagged as espionage is similar to what reporters do every day.

The case could be a sign that the media may some day soon be charged under the espionage statutes, especially as some politicians call for the government to prosecute reporters who publish stories on classified programs that they believe harms national security.

“The likelihood is, if this application of the law is sustained, that it will be possible to threaten journalists and say, we regard you as no different than those guys,” said Harold Edgar, a professor at Columbia University School of Law who is working on a law review article about whether the espionage statutes were properly applied in the lobbyists’ case.

If the case is eventually used to threaten journalists with an espionage prosecution, it will not be the first time. Though some experts say the Espionage Act was never meant to apply to reporters, it has been used in its 89-year history to threaten and sometimes jail members of the media.

‘An absolute overthrow’

The Espionage Act makes it a crime to attempt to collect or communicate information that would harm the national defense to hurt the United States or aid a foreign country. It forbids entering an installation or obtaining a document connected to the national defense, again to hurt the United States or aid a foreign country. It also criminalizes knowingly receiving information that has been obtained illegally, and passing it on or keeping it.

When the act was first proposed, it included a provision that, during wartime, authorized the president to punish the publication or communication of information about the armed forces, military operations and defense measures. Violations could be punished by three years in jail and fines up to $10,000.

After newspapers drew attention to the provision, senators attacked it as “an absolute overthrow of a free press,” according to a 1973 Columbia Law review article that Edgar wrote with Benno Schmidt Jr. Some objected to the idea of the president having such sweeping censorship control. Others said it was tantamount to a prior restraint, which supporters denied.

But the biggest objection was that the provision did not require the government to show that a defendant intended to harm the United States or to aid a foreign government, as other parts of the act did. Congress voted down the provision despite a last-minute plea by Wilson.

Still, some 2,000 people were charged under the Espionage Act during World War I, and some jailed were members of the press, according to Geoffrey Stone, a professor at the University of Chicago Law School and author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.

They included staff of a German-language newspaper, a socialist newspaper and a left-wing literary journal that ran a poem sympathetic to people who had been jailed opposing the draft, Stone said. Not only were the people involved jailed, but the postmaster general was ordered not to distribute their publications.

But Stone said the mainstream media was not targeted, in part because they did not oppose the war.

The offending material would be considered tame by modern standards nothing more critical than in contemporary editorial cartoons, Stone said. It was only later that the general public started to recognize the importance of a free press.

“When we have had episodes like World War I, like the Red Scare immediately after World War I, like McCarthyism … people have tended to sit up and say, ‘What did we do?’” Stone said. “That insight about the errors we fell into changes the culture.”

Reporters as criminals

When the Espionage Act was revised in 1950 as part of the wide-ranging Internal Security Act, its potential effect on the press was again debated, as detailed in Edgar and Schmidt’s article.

Though one senator said the act “might make practically every newspaper in the United States and all the publishers, editors and reporters into criminals without their doing any wrongful act,” lawyers who analyzed the Espionage Act said that because it required an intent to harm the United States or help a foreign country, it could not be applied to journalists in their normal course of duty.

When Congress passed the Internal Security Act, it included an anti-censorship provision.

From studying the legislative history, Edgar said, “our conclusion was that Congress, at the time it enacted the statute, did not understand it would reach journalists’ behavior in seeking out information, even if the information was deemed by the government to be important to national security.”

Over the years, Edgar said, officials have questioned whether the law applies to the revelation of classified information and have introduced measures to make the unauthorized disclosure of classified information a crime.

“Congress has, in all but one case, refused,” Edgar said, and even in that case, former President Clinton vetoed the legislation in 2000.

An open door

Nonetheless, court decisions seem to leave open the possibility of charging reporters.

“I don’t think any existing Supreme Court decision closes the door on the prosecution of journalists,” said Rodney Smolla, dean of the University of Richmond School of Law.

The prime example is the 1971 Pentagon Papers case, in which the U.S. Supreme Court ruled that the government could not justify a prior restraint against The New York Times and The Washington Post to prevent the publication of a leaked Defense Department study of the Vietnam War.

But the justices took pains to distinguish the higher standard for a prior restraint from the possibility of subsequent prosecution. Although it was not the issue at hand, most of the justices seem to indicate in their opinions that their denial of the prior restraint did not rule out prosecution.

“I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint,” Justice Byron White wrote.

The government never filed charges against the newspapers, and the espionage case against the leakers of the Pentagon Papers, Daniel Ellsberg and Anthony Russo, was dismissed.

Smolla believes the government has not tried to charge journalists under the Espionage Act because of the American public’s historical aversion to it, rather than a concrete idea that the courts would not allow it.

“There is this strong sense in our society that when the government begins to prosecute journalists who have passively received leaked information, we are crossing a line that upsets the traditional balance between the government’s right to maintain secrets and the press’s role as a watchdog,” Smolla said. “Because that line exists in the culture, the executive branch has been reluctant to test whether it also exists in the law.”

Attorney Jeffrey Smith, who served as general counsel of the CIA for about 16 months starting in May 1995, said that during that time, he never heard government officials talk about charging journalists with espionage.

Recently, politicians have clamored for the government to prosecute reporter Dana Priest of The Washington Post for her stories on secret CIA prisons used to hide and interrogate suspected terrorists in European countries, as well as New York Times reporters James Risen and Eric Lichtblau for their stories unveiling the government’s secret warrantless domestic eavesdropping program and detailing a program to monitor international bank transactions of people suspected to have ties to al-Qaida.

“We’re at war, and for the Times to release information about secret operations and methods is treasonous,” said Rep. Peter King (R-N.Y.), who called for the Justice Deparment to launch a criminal investigation of the paper because of the banking story.

When asked about the possibility of prosecuting journalists in May, Attorney General Alberto Gonzales said, “There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility.”

Risen said he’s not sure what to make of the threats but said there’s “not a lot of discussion” in the newsroom about the possibility of criminally charging reporters for espionage.

“We’re still doing our jobs,” Risen said at a recent talk at the National Press Club. “If we let things like that distract us, we’ll get paralyzed.”

The AIPAC case

For many, the prosecution of Steven Rosen and Keith Weissman, former lobbyists for the American Israel Political Action Committee (AIPAC) could set the stage for prosecuting journalists.

Unlike the people typically tried under the espionage statutes, Rosen and Weissman are not government employees. Nor are they accused of taking the classified information themselves. Former Defense Department employee Lawrence Franklin has already pleaded guilty to passing classified information to Rosen and Weissman.

Media advocates worry that the conduct that prosecutors have said constitutes espionage receiving classified information and passing it on is similar to what many reporters do every day when they receive secret information and pass it on to the public by publishing or broadcasting it.

In court filings in the AIPAC case, government lawyers state, “There is plainly no exemption in the statutes for the press,” though they go on to say, “we recognize that a prosecution under the espionage laws of an actual member of the press for publishing classified information leaked to it by a government source would raise legitimate and serious issues and would not be undertaken lightly. Indeed, the fact that there has never been such a prosecution speaks for itself.”

Much of the Espionage Act’s vague language has survived to this day, a fact that could hurt defendants in future cases because “the courts these days are paying less attention to legislative history than they have done in the past,” Smith said.

In the AIPAC case, Ellis rejected the lobbyists’ argument that the law was unconstitutionally vague, citing similar unsuccessful challenges.

News organizations are watching the AIPAC case carefully, said Karlene Goller, vice president and deputy general counsel of the Los Angeles Times. Goller said reporters have told her they already feel chilled reporting on issues of public importance because of the current climate.

“They’ve told me the chill is for real,” she said.

It is far from certain, however, that a successful prosecution in the AIPAC case would necessarily pave the way for criminal charges against reporters.

Stone noted the defendants are in an “ambiguous position” because they “wear several hats” as “lobbyists, quasi-journalists, quasi-agents of foreign power.” If the AIPAC case is decided in favor of the government, Stone said, reporters could say the case does not apply to the media because the defendants are “not pure journalists.”

But Smolla said the case and the judge’s decision not to dismiss it serve as a “sobering reminder” that the First Amendment may not protect reporters from criminal charges.

“Judge Ellis’ opinion may reveal journalists have been living on borrowed time in thinking prosecution is out of the question, and thinking it is a sure bet courts would dismiss such a prosecution,” he said. “The opinion may or may not hold up if the courts look at the issue. But it shows the ultimate answer is in play.”