NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · June 6, 2006
Senators examine legal authority for prosecuting media
June 6, 2006 · The Justice Department’s position that it has the legal authority to prosecute the news media for reporting national security leaks clashed today with the Senate Judiciary Committee chairman’s stance that Congress — not the executive branch — must first define if and under what circumstances journalists should be prosecuted for such reporting.
The skirmish came at a hearing that touched on a range of issues, from an FBI effort to seize the files of the late Jack Anderson to the prosecution of journalists under the Espionage Act to a proposed reporter’s shield law sponsored by Judiciary Committee Chairman Sen. Arlen Specter (R-Pa.), who called the hearing.
Congress, he said, has not exercised its constitutional duty of oversight into the government’s role in a free press reporting on national security issues. Attorney General Alberto Gonzales said last month that New York Times journalists could be prosecuted for publishing classified information in a story exposing secret domestic eavesdropping in the government’s anti-terrorism efforts.
In April news broke that the FBI wants to look through Anderson’s files for information relating to the case of two former lobbyists for the American Israel Public Affairs Committee who have been charged with violating the Espionage Act for receiving classified documents. The FBI said if it found any other classified documents unrelated to AIPAC in 187 boxes of Anderson files, it would remove them as well.
Despite dogged questioning from Specter and Sen. Patrick Leahy (D-Vt.), the ranking member of the committee, a Justice Department official refused to answer any questions about the FBI effort.
“I don’t believe I can comment on the Anderson matter specifically,” said Matthew W. Friedrich, principal deputy assistant attorney general, repeating a familiar refrain from his sworn testimony that the Anderson matter is related to an ongoing investigation and thus cannot be discussed openly.
Friedrich also repeatedly declined to answer whether the Department of Justice is considering prosecuting any newspaper or any reporter for publishing classified information, frustrating several committee members.
Leahy, accusing the official of taking the Fifth Amendment by refusing to discuss the department’s role in the case, told Friedrich that “you should be ashamed of yourself or your superiors should be ashamed of themselves. . . . There is this arrogance in [the Bush] administration against any kind of oversight.”
After it became clear that senators would not get answers regarding the Anderson files, the committee turned to other issues complicating the relationship between the press and government, including proposed reporters’ shield legislation and the recent Gonzales comment that reporters could be criminally prosecuted for revealing classified information.
Friedrich also confirmed that the Bush administration sees no reason why journalists would be immune from prosecution for revealing secret information.
“The strong preference of the department is to work with the press not to run stories containing classified information, as opposed to other alternatives,” Friedrich said.
Specter noted the important balance between protecting national security and maintaining the press’ role as watchdog. The bill he has co-sponsored with U.S. Sen. Richard Lugar (R-Ind.) would leaving such a balancing test to the courts, not the executive branch, Specter said.
But Friedrich repeated administration objections to the bill, saying it would slow the path of justice when the government wishes to subpoena a journalist.
Most of the senators and witnesses present said they supported a strong immunity for reporters from prosecution for not revealing information provided by sources, either through the proposed shield law or as an inherent freedom in the First Amendment.
After Friedrich’s testimony, a panel of experts, including Anderson’s son Kevin Anderson, discussed the FBI request and other press freedom issues.
“I was told that because I don’t have a security clearance, I could not review my father’s papers,” he said.
Mark Feldstein, an associate professor of media and public affairs at George Washington University, told the committee that he was visited by FBI agents at his home as part of their attempt to seize the Anderson records, which had been donated to the university. Feldstein, a former journalist, sees the case as involving larger issues of press freedom.
“Prosecuting the press for espionage reeks of McCarthyite madness — the kind of tactics used in dictatorships, not democracies,’ Feldstein said. “If anything, the problem isn’t that the press is too aggressive in national security reporting, it is that it is too timid.”
Experts disagreed on the need for a shield law, either because of an inherent constitutional protection or because they believed reporters should in fact be prosecuted.
“If Americans are still wondering why our intelligence has been as defective as it has been, leading us from disaster to disaster, one of the reasons is unquestionably the hemorrhaging of classified information into the press,” said Gabriel Schoenfeld, an author and commentator who supports charges under existing espionage laws against the New York Times for its warrantless eavesdropping story, which won the Pulitzer Prize.
But Rodney A. Smolla, dean of the University of Richmond Law School, said such prosecutions would be unwise and sound public policy would support a shield law.