Government pokes holes in our history in pursuit of leaks
By Paul K. McMasters
Federal officials have opened up yet another front in their increasingly aggressive efforts to control information. The primary target is the press, but the inevitable result will be to homogenize political discourse and sanitize this nation's memory of its past.
The news broke this month that, shortly after the death of legendary investigative reporter Jack Anderson last December, FBI agents contacted his widow and demanded access to 188 boxes of his papers destined for transfer to George Washington University archives.
The FBI apparently wanted to search Anderson's notes and source material for evidence to use in the government's prosecution of two former lobbyists. Agents also said they would have to remove any classified information they might find.
Anderson's family rejected the demand. They doubt the papers contain anything relevant to the FBI's stated interest. More important, they see this move as a violation of Anderson's values and legacy. As Anderson himself wrote several years ago: "When something has come across my desk classified as a national security secret, it has involved the misdeeds and manipulations of people who had abused the public trust, and then had swept the evidence under the secrecy stamp."
This tug of war over the Anderson papers is just the latest in a chilling series of government threats to press practices and principles, to historical accuracy and to the public's right to know.
Journalists committed to reporting fully and responsibly on national-security issues and developments are being hauled into court and threatened with prison if they don't give up their sources inside government.
Protections for those sources are being dismantled. Investigations pursue the sources of leaks that produced such stories as the warrantless surveillance of Americans by the National Security Agency and the CIA's secret interrogation centers.
Proposals for an "official secrets act" are being floated in Congress. Government lawyers are stepping up their use of the state-secrets doctrine to cut short inconvenient court cases.
The most pernicious development in this legal adventurism, however, is the effort to get the courts to sanction the unprecedented premise that recipients of classified information can be prosecuted under the 1917 Espionage Act.
Apparently, the FBI is bolstered by that assumption in going after the Anderson papers. "Under the law, no private person may possess classified documents that were illegally provided to them," FBI spokesman Bill Carter told The New York Times.
There has never before been a prosecution of the press under the Espionage Act; indeed, there had been no prosecution of nongovernment individuals until federal prosecutors went after Steven Rosen and Keith Weissman, who were working with the American Israel Public Affairs Committee when they received classified information from a Pentagon employee. Their trial is scheduled for next month.
Although the judge in that case has endorsed the idea that recipients of orally passed classified information may be prosecuted, there are some who don't believe they need to wait for the trial's outcome. They are already calling for the use of the Espionage Act to punish journalists who have used classified information to report national-security stories.
That would be a terrible mistake.
The law's clear intent was to distinguish between spying for pernicious reasons and leaking for patriotic reasons. The 1950 amendment to the act affirmed that by stating that nothing in the law "shall be construed to authorize, require, or establish military or civilian censorship or in any way infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States."
In a 1977 memo, Anthony A. Lapham, as general counsel for the CIA, described provisions of the act that government lawyers are embracing today as "vague and clumsy" and said that when it came to publication of books and leaks to the press, "It is extremely doubtful that the provisions were intended to have applications in such situations."
Congress on numerous occasions has rejected attempts to prohibit release of any classified information whatsoever, choosing instead to punish only unauthorized release of selected categories of material.
Patrick Fitzgerald, special prosecutor in the Plame leak case, specifically and publicly declined to consider charges against the press under the Espionage Act.
Even government prosecutors in the AIPAC case concede that applying the act to the press "would raise legitimate and serious issues and would not be undertaken lightly."
That is why, until now, the Justice Department, the intelligence community and Congress have refused to apply the Espionage Act in this manner. Going after journalists, scholars, lobbyists or other recipients of leaked information would have been constitutionally reckless and politically incendiary. Further, it would have closed useful channels of governmental, political and diplomatic discourse and subverted democratic policy-making.
Yet the FBI's demand for Anderson's papers in the government's quest to extend the law's reach reveals that some government prosecutors are eager to write another ugly chapter in the Espionage Act's sordid history. In its 90 years of existence, the act has been used to send thousands of Americans to prison for exercising their First Amendment rights.
It is a history that we rightfully look back on in shame. We shouldn't repeat it.
Paul K. McMasters is First Amendment ombudsman at the First Amendment Center in Arlington, Va.