The NY Times reports that Attorno Gonzo has once again moved the goal posts:
The government has the legal authority to prosecute journalists for publishing classified information, Attorney General Alberto R. Gonzales said yesterday.
“There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility,” Mr. Gonzales said on the ABC News program “This Week.”
How unconfident is Gonzalez? Well, he appears to be suggesting that only if we squint (or stare unblinkingly at the statute for 10 minutes) can the statute’s true hypnotic intent become discerned. It reminds me of an old Sunday School ritual/parable, where we were given a card with some shapes on it and were asked to tell us what we saw. Here’s the card even:
Once the op-art magic was revealed (it says JESUS!!) it was clear that we young Sunday schoolers were expected to bathe in the warm glow of His Majestic Trickery. I imagined a televised contest between Doug Henning and Jesus (surely Jesus could whomp that wild eyed hippie if this card trick is any indication). The next year, however, a different Sunday school teacher dropped the identical trick on us and perhaps then the first ember of skepticism within me was fanned.
And so, just like my fraudulent Sunday school teacher, Gonzalez instructs us to read carefully an otherwise perfectly understood statute that has never been used to prosecute news reporters. Actually, he fails to mention any specific statute, but the Times seems to believe that he’s relying on a never before imagined interpretation of 18 U.S.C. 798, which is a:
criminal statute which punishes anyone who knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information [concerning the cryptographic and communications intelligence activities of the United States or any foreign government].
Gilmore v. National Sec. Agency, 1993 U.S. Dist. LEXIS 7694 (D. Cal. 1993).
Gonzalez says that a careful reading would seem to indicate the possibility that it also applies to journalists. By triple-couching the issue in this way, you might think that Gonzalez wasn’t entirely positive that he’s not full of shit. And of all the hare brained legal theories he’s run up the flagpole, this one reeks distinctly from the rest. While most of the legal encroachments Gonzalez espouses are intended to enlarge the definition of executive power, this appears to both enlarge the executive power definition at the direct expense of the press freedom–namely the Pentagon Papers case. The issue there was merely whether the executive authority existed to force a newspaper to withhold publication–if jailing the reporters had even occurred to Nixon, it was only a wet dream.
"I will say that I understand very much the role that the press plays in our society, the protection under the First Amendment we want to promote and respect [and] the right of the press," Gonzales said.
"But it can’t be the case that that right trumps over the right that Americans would like to see: the ability of the federal government to go after criminal activity. And so those two principles have to be accommodated. In my judgment, they can be accommodated," he said. [emphasis added]
Note again the moving of the goal posts. The alleged freedom of the press has always been on shaky terrain, but the level at which intrusion into that alleged freedom has been historically tolerated by the courts has always been a lot higher than "criminal activity." And of course, the "criminal activity" in the back of Gonzalez’s mind is the NY Times’ revelation of the NSA’s secret wiretapping program.
The First Amendment policy implications, which a court would weigh against the supposed national security interest in not having this program made public, could not be any more apparent where a newspaper reveals to the public that the government is spying on them in obvious contravention of the Fourth Amendment. This is the press serving its government checking function at the most primal level–where the government appears to be breaking the law.
Even if it is eventually found that the NSA program is entirely legal (and Congress is working its ass off to make this so in a post-hoc sense), the Times still had a perfectly reasonable belief that the government was breaking the law, as so much case law concerning the Fourth Amendment has told us.
Gonzalez is smart enough to know not to ever take this issue before a court. As in the Padilla case, he’s using the law disingenuously (and people as pawns) to advance political and legal envelope pushing agendas. And perhaps to induce some chilling effect on the press. And there’s no place quite as chilly as jail.
Update: well, not really an update, but better post than this one on the same subject by Glenn Greewald, who also notes the stark imbalance of interests:
These disclosures trigger public debate over highly controversial matters and, as a result, often harm the President politically. But none of them is an example of gratuitous disclosure of secret information intended to harm national security.