Full Court Press

by Jeffrey Rosen | November 13, 2006

Bill Keller can't sleep. It is four o'clock on a sticky morning in the summer of 2007, and the executive editor of The New York Times is pacing his home, cursing Attorney General Alberto Gonzales. Here is the root of his insomnia: A few months earlier, the Democrats recaptured the House. In a vindictive mood, Judiciary Committee Chairman John Conyers and his newly installed colleagues began raining subpoenas down upon the administration, forcing officials to answer embarrassing questions and producing photos of shell-shocked Bushies standing with their right hands in the air.

Desperate to change the subject, the White House begins pounding on its old favorite foil: the press. Gonzales follows through on a May2006 threat to prosecute Keller's paper for disclosing the Bush administration's secret surveillance program and The Washington Post for revealing the existence of CIA secret prisons--twin violations, he claims, of the Espionage Act of 1917. At the same time, Gonzales appoints Patrick Fitzgerald as special counsel to prosecute the officials who leaked this classified information. As part of his leak-hunt, Fitzgerald subpoenas the phone records of Times reporters James Risen and Eric Lichtblau. When they refuse to comply with the subpoena, invoking the First Amendment, the judge then holds them in contempt. It's the Judith Miller saga all over again, only worse. While Risen and Lichtblau are in jail, another lower court judge holds that they have violated the Espionage Act,which prohibits the disclosure of national defense information that could be used to injure the United States. The Supreme Court eventually reverses the decision, but not before Risen and Lichtblau have spent more than a year in the slammer.

Several generations of American journalists have gone about their business with a sense of invincibility: an unquestioned belief that the First Amendment protects them from government retaliation in nearly any and all circumstances. But, since September 11, a series of lower court cases has revealed this complacent assumption to be based on a jurisprudential mirage. If the Bush administration decides to test the limits of the First Amendment, journalists will quickly learn that they have far fewer legal protections than they have long assumed. And Bill Keller may find himself losing sleepover far more reporters in orange jumpsuits.

Wars are notoriously bad for civil liberties. The cold war however,was another story. That's when the Supreme Court began systematically to protect the free-speech rights of dissenters.According to the media sociologist Michael Schudson, "In the 1950s,people began saying, `We're the free world, they're not, and what distinguishes us from them is that they're godless and don't allow free speech and press.'" The apotheosis of this new era was the Supreme Court's 1971 decision New York Times v. United States, which ruled that the Times and the Post couldn't be stopped from publishing the Pentagon papers. It didn't hurt the news media's cause that these years were also the height of its All the President's Men glamour. "The heroic standing of the press in society at large had a glorious decade or so, from '65 to '75, and it's been more mixed since then," Schudson told me.

But, in truth, this decade was an aberration in U.S. legal history.From the Alien and Sedition Acts of 1798 to the Espionage Act,federal courts repeatedly upheld the prosecution of government critics, including journalists and writers, on the ground that their ideas might cause harm in the remote future. Indeed, after World War I, judges construed the federal Espionage Acts (a second one was passed in 1918) even more broadly than Congress had intended. More than 2, 000 dissenters, including journalists, were prosecuted, and more than 1,000 were convicted. Many of the offenses could hardly be construed as threatening future harm. The editor of the socialist Jewish Daily News was convicted for declaring, "I am for the people and the government is for the profiteers."

By all indications, we may be on the verge of a similarly grim era for freedom of the press--or, rather, we may be reverting to the more constricted freedom that has predominated for most of our history. The White House seems determined to test the limits of the First Amendment. Consider, first of all, the possibility that Gonzales follows through on his threat to prosecute the Times for violating the Espionage Act. (He was not alone in this threat; the Times was accused of "treason" by Senator Jim Bunning, and House Republicans passed a resolution denouncing the paper for endangering American lives.) According to Geoffrey Stone of the University of Chicago Law School, an Espionage Act prosecution of the Times for reporting leaks would be unprecedented. "I'm not aware in the entire history of America of an attorney general threatening to prosecute the media for publishing confidential information," he told me. "There's no clear law either way because it hasn't happened before. But, if we could get through 220 years without the executive feeling it's necessary to prosecute the press for publishing confidential information, that's pretty strong evidence we don't need it."

If the Bush administration tried to prosecute journalists under the Espionage Act, the Supreme Court might eventually rule for the press, on the grounds that the disclosures served the public interest and posed no risk of imminent harm to the nation. But the administration could silence its critics just as effectively by launching an investigation to identify who leaked secret information to the Times and the Post--and then issuing subpoenas demanding that reporters identify their sources.

In a troubling case decided last August, a federal district judge in Alexandria, Virginia, held that the First Amendment doesn't protect private citizens who reveal national security secrets. He upheld the prosecution of Keith Weissman and Steven J. Rosen (no relation), two former lobbyists for the American Israel Public Affairs Committee, under the Espionage Act--the same law that the Bush administration has invoked to threaten the Times. Previous decisions had held that public employees are far more vulnerable to prosecution for leaking classified information than private citizens and journalists. But the judge in United States v. Rosenmade no allowance for the fact that Weissman and Rosen were private citizens. Because they had told journalists and Israeli officials about classified information obtained from the Defense Department,the judge held, they could be punished for sharing information"potentially harmful" to national security. This contradicts more than 50 years of Supreme Court precedents, which say that private citizens can be restrained from speaking or writing only when there is an imminent danger of serious harm. Although Rosen and Weissman weren't journalists, their case will make it easier for the government to file charges against actual reporters (such as Risenor Lichtblau) who receive or solicit classified information

If the Bush administration launches a leak investigation to identify the Times' sources in the NSA story, Risen and Lichtblau would be called to testify just as Miller was, and--if they refused to testify--they, too, could be imprisoned for contempt of court.Courts have said repeatedly that the government has far more discretion to investigate leaks than to punish newspapers for publishing classified information. Indeed, the Miller case itself is now on the books as a warning that reporters in federal court shave no First Amendment privilege to refuse to testify in legitimate investigations. It was obvious that Fitzgerald was flamboyantly overreaching in the Miller case from the moment he filed obstruction of justice charges against Scooter Libby, rather than charging any government official with breaking the federal law against disclosing the identity of covert CIA operatives that he was originally appointed to investigate. But, when former Deputy Secretary of State Richard Armitage admitted in August that he was the source who revealed Valerie Plame's identity as a CIA operative to the columnist Robert Novak, the magnitude of Fitzgerald's hubris became even harder to ignore: What need was there to force Miller of the Times and Matt Cooper of Time to testify about who told them about Plame, when Fitzgerald already knew the main culprit?

Now the Fitzgerald investigation, which John Tierney of the Times has accurately called "Nadagate," has morphed into even more of a First Amendment Chernobyl. To defend himself against Fitzgerald's prosecution, Libby has subpoenaed Cooper's notes And e-mails--material that could expose imprecision in Cooper's testimony about their meetings. In May, a federal district judge held that the First Amendment didn't protect Cooper from having to turn some of his notes over to Libby. The spectacle of Cooper being repeatedly grilled about his conversations with a peripheral source for a story he never wrote is the starkest reminder of the fact that journalists have no legal right to avoid testifying in any federal investigation or trial, no matter how chilling the effect on their ability to do their job.

But Nadagate is only the most famous example of journalists being ordered to testify against their will in recent federal leak investigations. In August, two San Francisco Chronicle reporters were ordered to identify their sources for stories about the secret grand jury testimony of Major League Baseball players in connection with the Bay Area Laboratory Co-operative (balco) steroid investigation. And, in June, five news organizations reached a private settlement with the nuclear scientist Wen Ho Lee--in connection with his suit against the government and FBI--for invading his privacy when they leaked information about him and his family to the press. Reporters from the news organizations--including the Los Angeles Times, The New York Times, and the Associated Press--had already been held in contempt of court for refusing to disclose the names of their sources in the Lee case,and one of the subpoenaed reporters confessed that news organizations feared that, if they litigated up to the Supreme Court, they would lose. They were right to worry, since the law is entirely against them.

The Miller, balco, and Lee cases all show that judges are unsympathetic toward reporters who try to withhold testimony in leak investigations where a public official has arguably committed a crime--such as illegally divulging the identity of a covert operative in the Plame investigation, divulging grand jury information in the balco case, or violating the Privacy Act in the Lee case. "What unifies all the cases we've seen going forward is that the leaker may have committed a crime," Stone says. "That's very different from cases where the leaker is in a completely sympathetic situation," such as blowing the whistle on potentially illegal government activity.

These cases will put reporters who use classified leaks to disclose arguably illegal conduct by the Bush administration in an especially tight spot. Even though the NSA surveillance program and the CIA's coercive interrogation of enemy combatants, for example,were arguably illegal under existing law, the Bush administration tendentiously insisted that both programs were perfectly legal.Because both programs were classified, judges in leak investigations would be hard-pressed to treat the sources for the stories as sympathetic whistle blowers; instead, they could be viewed as potential criminals. And the reporters who published the classified information would be required to identify their sources,even though their Pulitzer Prize-winning reporting helped crystallize a political consensus that the administration may indeed have broken the law.

One widely discussed solution to this assault on the press is a federal shield law, similar to the ones adopted by 49 states. In the wake of Nadagate, the Senate held hearings on a proposal that would require judges to balance the potential harms of the disclosure of classified information against the public interest in disseminating it. But, despite the support of principled conservatives like former Solicitor General Ted Olson, last month the Senate postponed consideration of the shield law until after the November elections, in the face of Justice Department objections.

And even in the unlikely event that a shield law passes a Republican Senate and survives a presidential veto, it still would probably fail to protect reporters from an overzealous president and determined prosecutors. In truth, the relative freedom enjoyed by the press since the Watergate era to publish national security information passed along by whistleblowers has reflected prosecutorial restraint more than reliable constitutional protections. As long as the White House and Justice Department classify as much information as possible and investigate every leak as vigorously as possible, the sight of journalists marched into jail may become alarmingly common.

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