E-Mail This Article to a Friend Covering a multitude of sins (continued)

Subsequent statements from various Justice Department officials make clear that the Randel prosecution was intended as a shot across the bow of potential whistle blowers in possession of information more embarrassing to the government than the DEA files disclosed by Randel. US Attorney William Duffy Jr., Ashcroft’s man on the Randel case, was very pleased with the outcome, telling the New York Times that the case served as a warning to other government workers. In October 2002, Ashcroft submitted a written report to Congress that made clear that Randel-style prosecutions are now the official policy of the Justice Department. Making no distinction between whistle blowers and spies, Ashcroft stated the need for "aggressive investigations of unauthorized disclosures of classified information utilizing all appropriate and available investigative tools and techniques to identify the perpetrators." He then described his recommendations for an interagency anti-leak plan — the Justice Department and other agencies will pursue all applicable administrative, civil, and criminal penalties against anyone who disseminates confidential documents — and noted that the steps he described were all "within the existing authorities of the Executive Branch and do not require additional legislation." In other words, the administration does not need congressional cooperation to shut off the flow of information to the press, the public, or even to the Congress itself.

It is true that Ashcroft is not the first attorney general who has made creative use of existing laws to advance government secrecy. The Nixon administration, after all, tried to suppress publication of the classified Pentagon Papers, a secret government study containing information about US involvement in Vietnam, by seeking a court injunction against the major national newspapers that possessed copies — an attempt that the Supreme Court struck down on First Amendment grounds. And in 1986, the Reagan Justice Department brought a first-of-its-kind prosecution against Samuel Morison, a Navy Department analyst who provided the British intelligence-analysis publication Jane’s Defence Weekly with classified satellite photos of a Soviet ship. No one suggested that Morison harbored ill-will toward his country; nor was there a suggestion that Britain was a hostile power. Nonetheless, Morison was convicted under both the Espionage Act and a statute covering theft of government property. He was sentenced to two years in prison.

But there is something new about Ashcroft’s approach. The Pentagon Papers case and the Morison prosecution both dealt with the release of classified documents as opposed to those that are merely "confidential." This crucial distinction seems lost on Ashcroft, however, who has made clear in actions as well as words that his intention is to punish the disclosure of any information government officials might want kept secret, whether it is classified or not, and regardless of whether the disclosure actually harms national security.

Muzzling the press

Last October, in response to an inquiry by the Institute of Electrical and Electronics Engineers (IEEE) requesting a clarification of US trade regulations, the US Treasury Department’s Office of Foreign Assets Control (OFAC) stated that editing scientific papers — "substantive or artistic alterations or enhancements" to a manuscript, including "the reordering of paragraphs or sentences, correction of syntax, grammar, and replacement of inappropriate words" — authored by scientists from foreign countries facing a US trade embargo (e.g., Iran, Cuba, Libya, and North Korea) constituted a violation of federal trade regulations. Anyone committing such violations would face fines of up to $500,000 and a sentence of up to 10 years in prison. In early April, after months of intense controversy — including a promise of civil disobedience by the American Chemical Society, whose head of publications called the ban "inimical to the spirit of science" — OFAC revised its interpretation of the guidelines to permit IEEE to edit the foreign manuscripts without fear of prosecution (see "The Enemy of Ideas," Editorial, March 12).

The flap was a quick win against an odious attempt to muzzle the scientific press and thereby stunt the advance of science and technology, which is one of our major national strengths and sources of security. But the Bush administration is sure to try to muzzle the press, scientific or otherwise, again, and next time it may succeed. After all, how many other professional organizations would match the guts shown by the American Chemical Society and threaten civil disobedience to protect liberty? And would Ashcroft’s Justice Department back down as quickly as OFAC? Probably not.

Indeed, what we’re likely to see next is a direct assault by the Bush administration on the Fourth Estate itself in a bid to squelch "national security" stories. A largely unheralded but unforgotten aspect of the Vietnam-era Pentagon Papers imbroglio gives us a hint of how the past may indeed be prologue. The 1971 publication of the Pentagon Papers by the New York Times, the Washington Post, and the Boston Globe is perhaps the best-known example of how disclosing overclassified material can benefit a free people. The Supreme Court case that quashed the government’s resulting attempts at censorship, New York Times v. United States, is often seen as a vindication of newspapers’ mission to inform the public. However, the Supreme Court’s ruling in that case — prohibiting "prior restraint," the use of court injunctions to prevent, in advance, the publication of even classified material — left a dangerous opening that the Bush administration may seek to exploit.

That’s because although the Supreme Court struck down prior restraint of the newspapers, it explicitly left the door open for post-publication criminal prosecutions of reporters and publishers. Concurring opinions from Justices White, Stewart, Burger, Blackmun, and Marshall (a majority of the justices then sitting) noted the possibility of, and in some cases came close to endorsing, criminal prosecution of the newspapers. Justice White’s concurring opinion was the most explicit — and menacing. "[T]hat the Government mistakenly chose to proceed by injunction," he wrote, "does not mean that it could not successfully proceed in another way." He then laid out a road map for how to use the Espionage Act to prosecute journalists who obtain and publish classified material.

For reasons that remain unclear (some believe it was the onset of the Watergate scandal), the Nixon administration did not pursue such a prosecution. Since then, the government generally has not threatened the press with criminal prosecutions for publishing leaked classified material, choosing instead to go after individual leakers. But this may soon change.

Recently, the CIA published an unclassified memorandum advocating such prosecutions. Written by senior intelligence official James B. Bruce and titled "The Consequences of Permissive Neglect," the memorandum suggests a new statute that would "hold uncleared publicists — i.e., journalists, writers, publishing companies, media networks, and Web sites that traffic in classified information — accountable for intelligence disclosures." Bruce writes: "Any journalist’s First Amendment right to publish information does not appear to — and should not — extend to disclosing lawfully classified intelligence information." If the Bush administration acts on this recommendation, either by stretching existing law or introducing new legislation to make such executive authority explicit, it could have a seriously chilling effect on investigative reporting. And media life could become particularly dangerous if the administration then took aim at disclosure of confidential but unclassified material, and in other ways sought to criminalize the dissemination of words. This can be accomplished without new legislation. Remember that the Justice Department’s policy, as a result of the Randel prosecution, is to treat any disclosure of non-classified information as a crime; under this theory, any recipient of those leaks can be treated as a co-conspirator of the leaker — essentially, a recipient of stolen goods — rather than as a constitutionally protected publisher of news. It is not clear whether the courts would approve such an expansion of current laws, but the mere existence of this threat is likely to have a deterring effect on aggressive reporters.