NEWS MEDIA UPDATE · WASHINGTON, D.C. · Prior Restraints · May 30, 2006
House committee weighs press’ role in intelligence leaks
Editor’s note: The quotation of the testimony of Gabriel Schoenfeld was modified and the spelling of his name was corrected after a transcript of the hearing was obtained.
May 30, 2006 · The constitutional balance between the public’s right to know and the government’s need for secrecy clashed Friday at a rare public hearing before the House Permanent Select Committee on Intelligence.
Though no one contended that a new law is necessary to prosecute the reporting of classified information, the congressmen heard from four legal scholars and media professionals who gave conflicting testimony on whether the government should prosecute the publication of classified information such as The New York Times’ story that exposed secret domestic eavesdropping and The Washington Post story that revealed the CIA’s secret “black site” prisons overseas. Both stories won Pulitzer Prizes.
Friday’s hearing, the third on the subject and the first open to the public, was convened by Committee Chairman Rep. Peter Hoekstra (R-Mich.) who said that he is “concerned that the Department of Justice has not acted aggressively in previous cases to pursue such disclosures.”
At issue are the effects of national security reporting, whether the Espionage Act and other existing criminal laws allow the government to prosecute journalists for reporting classified information and whether new laws should be passed.
“Leaks help our enemies — operational details help al-Qaida morph and become more offensive and set traps for our troops,” said Rep. Rick Renzi (R-Ariz.). “I believe the attorney general and president should use all powers of existing law to bring all charges when it comes to operational details.”
Ranking Democrat Jane Harman of California disagreed. “If anyone here wants to imprison journalists, I invite them to spend some time in China, Cuba or North Korea and see whether they feel safer,” she said.
Hoekstra and Harman agree that overclassification by the executive branch and ineffective whistleblower protection laws lead to increased leaks.
“We need to make sure the whistleblower process is working so people don’t feel their only alternative is going to the press,” Hoekstra said.
Walter Isaacson, president and CEO of the Aspen Institute, a nonpartisan think tank, argued that the balance struck by journalists’ self-regulation and government efforts to keep information secret has worked well throughout history and does not need to be changed.
“It’s worked astonishingly well, with remarkably few lapses, for more than two centuries. We don’t need a broad new ‘Official Secrets Act’ to smash or even hit a sledge hammer to this delicate balance now,” said Isaacson, former chairman and CEO of CNN and former managing editor of Time magazine.
George Washington University law professor Jonathan Turley agreed and urged the committee to recognize the important check on government that reporters perform. “If a crime occurs and no one is around to reveal it or to report it, does it exist? Probably not,” Turley said. “Under the approach suggested by [Attorney General Alberto] Gonzales, some of the most important stories in history would never have been reported or, if they were, they would have ended in the incarceration of those who brought them to the public’s attention.”
Turley also emphasized that plugging leaks would fundamentally alter how the government operates since self-governing societies run on information trading: “This city floats on a sea of leaks.”
Commentary magazine Senior Editor Gabriel Schoenfeld, who argued in a March article that journalists should be prosecuted in certain circumstances for publishing classified information, told the committee that “the Times violated the black-letter law” of a statute that protects a narrow category of communications intelligence.
“The press obviously has an indispensable role to play in our democracy, and governmental interference with that role has historically been very rare, which is right and proper,” Schoenfeld added. “But there are limits which the press should not be permitted to cross with impunity, and recklessly publishing vital counterterrorism secrets in wartime in violation of the law is one of those limits.”
John C. Eastman, professor and director of The Claremont Institute Center for Constitutional Jurisprudence at Chapman University in California, agreed and suggested that Congress consider making Section 793 of the Espionage Act less ambiguous to put reporters on notice that their actions could be subject to prosecution. “I think there’s deliberate ambiguity, but I wonder if you want to rely in critical times on deliberate ambiguities.”
Hoekstra interrupted the hearing mid-morning after gunshots were reportedly heard in the Rayburn House Office Building. The hearing continued until about 12:30 although those in the room were not released until almost 3 p.m.
Several other legal scholars and media professionals who did not attend the hearing, including Tom Brokaw, Walter Cronkite, and Ted Koppel, submitted written statements to the committee.
The trio urged the committee to “move forward with great caution” in changing the legal framework for unauthorized leaks of classified information “so as not to chill daily communications between government officials and the press.”
“Congress in two World Wars, in the Cold War, and in the defense of this country from terrorism, has wisely resisted secrecy legislation that would infringe upon the public’s right to stay informed on critical issue of the day,” the three wrote.
The Reporters Committee for Freedom of the Press submitted a statement urging the committee to “first determine what injury, if any, [the New York Times and Washington Post] stories caused and avoid taking action on mere allegations of harm.” Citing the Pentagon Papers and the leaks that led to the exposure and eventual abandonment of previous National Security Agency secret spy programs, the Reporters Committee wrote that, leaks ”to the media, even of classified information, have served as a source of information to the public about vital issues and government operations.”
Aside “from general speculation about how these revelations have jeopardized our country, it is doubtful the degree of damage exceeds the benefit of increased public awareness of these government activities. Both stories sparked tremendous public debate and invited the public to more closely scrutinize the decision-making of high government officials. In other words, the stories fulfilled the watchdog role that is the media’s duty to perform.”
The two earlier House Intelligence Committee hearings — both secret — focused on the damage caused by leaks and whether the Department of Justice and Federal Bureau of Investigation have been able to investigate and prosecute illegal disclosures of classified information under existing criminal laws.