Poking holes in our history in pursuit of leaks

Sunday, April 23, 2006

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 week 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

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

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

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

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

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

Paul K. McMasters is First Amendment ombudsman at the First Amendment
Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: pmcmasters@fac.org.

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