Can the Justice Department Prosecute Reporters Who Publish Leaked Classified Information? Interpreting the Espionage Act

Journalists, beware. If you publish leaked classified information, you might be prosecuted.

That was the message Attorney General Alberto Gonzales recently sent in an interview with ABC News. Gonzales said that, while he understood the importance of the First Amendment right to freedom of the press, "it can't be the case that that right trumps over … the ability of the federal government to go after criminal activity."

It seems that Gonzales makes no exception for classified information that is of intense public interest - such as the existence of a secret CIA global prison network, or a secret domestic wiretapping program.

The Attorney General's threats should not be taken lightly. The Department of Justice is actively investigating the leaking of classified material to reporters.

As I have discussed in a previous Writ column, the Bush Administration has already indicted government officials who've leaked classified information, and those outside of government receiving it. To date, it has not gone after reporters, but that seems likely to change.

Does the Espionage Act Grant Authority to Prosecute Journalists for Receiving Classified Information?

As Gonzales told George Stephanopoulos during the May 21 episode of This Week, "There are some statutes on the book which, if you read the language carefully, would seem to indicate that [the prosecution of reporters for publishing classified information] is a possibility. That's a policy judgment by the Congress in passing that kind of legislation. We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected."

Gonzales is apparently referring to provisions of the Espionage Act of 1917. Under 18 U.S.C. § 793(e), it is a crime to "willfully communicate" any "information relating to the national defense which . . . the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation . . . to any person not entitled to receive it." Moreover, when two or more persons cooperate to violate section 793(e), that constitutes conspiracy under 18 U.S.C. § 793(g). Additionally, under 18 U.S.C. § 798(a)(3), "whoever knowingly and willfully . . . publishes . . . any classified information . . . concerning the communication intelligence activities of the United States or any foreign government" is subject to up to ten years of imprisonment.

The Espionage Act was intended primarily to punish government employees and contractors who passed classified information to agents of foreign governments. Indeed, the most famous prosecution under the Act was of Ethel and Julius Rosenberg, who were charged with treason and ultimately executed.

Yet, as Matthew Friedrich, the chief of staff of the Justice Department's Criminal Division, told the Senate Judiciary Committee earlier this week, the relevant sections of the Espionage Act "do not exempt any class of professionals, including reporters, from their reach."

Sen. Arlen Specter (R-PA), the chairman of the Judiciary Committee, saw Friedrich's assertions that the Espionage Act seemed to apply broadly as "an invitation to the Congress to legislate on the subject." Friedrich, however, cautioned against any amendments of the Espionage Act to restrict the prosecution of reporters, reiterating the Department of Justice position that "legislation in creating a media shield was not needed, that it would slow down the effective administration of justice."

As the exchange between Friedrich and Specter displays, the two political branches of government do not necessarily subscribe to the same construction of the Espionage Act. Federal case law, therefore, remains the best guidance on the issue.

The Judicial Decision Rejecting a First Amendment Espionage Act Exception

In the mid-1980s, the Espionage Act was successfully used to prosecute a leak of classified material to the news media. The prosecution, however, targeted the leaker, not the journalist.

In its 1988 decision in United States v. Morison, the U.S. Court of Appeals for the Fourth Circuit upheld the Espionage Act conviction of former U.S. Navy analyst Samuel Morison, who had mailed secret satellite photos to Jane's Defence Weekly, a popular British military affairs magazine.

The Fourth Circuit rejected Morison's claim that the First Amendment "offers asylum . . . merely because the transmittal was to a representative of the press." The court reasoned that the "First Amendment, in the interest of securing news or otherwise, does not 'confer a license on either the reporter or his news source to violate valid criminal laws.'"

In a concurring opinion, Judge Wilkinson pointed out that "the Court has held that government restrictions that would otherwise be impermissible may be sustained where national security and foreign policy are implicated," recognizing "'a compelling interest in protecting . . . the secrecy of information important to our national security.'" He also opined that an opposite result would have amounted to "a judicial declaration that the government may never use criminal penalties to secure the confidentiality of intelligence information."

Supreme Court Dicta Suggests Journalists Could Face Espionage Act Prosecutions

The Supreme Court has not ruled on the constitutionality of prosecuting those who leak to the press under the Espionage Act. Moreover, no court has yet ruled on whether prosecuting journalists for relaying classified information to the public can come under the Act.

Nevertheless, Gonzales can find strong support for his position in the Supreme Court's 1971 opinion in New York Times v. United States. There, the government asked for an injunction against the New York Times and the Washington Post to prevent them from publishing classified excerpts of the Pentagon Papers.

The Court refused the injunction, but in dicta - that is, language not integral to the case's resolution - several justices suggested that after publication, the government could bring criminal charges against the newspapers under the Espionage Act.

In his concurrence (joined by Justice Potter Stewart), Justice Byron White went even further. Having reviewed the legislative history behind the Espionage Act, he stated that "Congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed." He warned that he "would have no difficulty in sustaining [such] convictions" under the Espionage Act. In addition, Chief Justice Warren Burger expressed his "general agreement" with "much of" what Justice White said in this respect.

Even the more liberal Justices Thurgood Marshall and Harry Blackmun were unwilling to expressly rule out Espionage Act prosecutions of journalists. Indeed, Blackmun emphasized that "First Amendment absolutism has never commanded a majority of this Court," and quoted Justice Oliver Wendell Holmes' view in the Schenck case that "It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."

Will the Relevant Section of the Espionage Act Be Held to Violate the First Amendment?

Of course, the Pentagon Papers case was resolved in the midst of the Vietnam War. Now, thirty-five years, later, we face the "war on terrorism," a very different kind of "war" that raises different issues.

In addition, we have a completely new Supreme Court - one that shares not a single member with 1971's Court. (Its most longstanding member, Justice John Paul Stevens, joined the Court in 1975.)

Nevertheless, given the strong signals sent by the Court in 1971, it seems likely that federal trial and appellate courts would allow the prosecution of journalists for communicating classified information to go forward - until and unless the Supreme Court rules otherwise or the Congress intervenes and amends the Espionage Act to shield journalists.

The Bush Administration is doubtless aware of this - and knows that if it starts this battle, it will probably win - at least in the early rounds.

In light of this reality, journalists should realize that prosecutions are a real possibility if they do go forward in publishing leaked classified information.