Prosecution of Journalists Is Possible in NSA Leaks

By Walter Pincus
Washington Post Staff Writer
Monday, May 22, 2006

Attorney General Alberto R. Gonzales raised the possibility yesterday that New York Times journalists could be prosecuted for publishing classified information based on the outcome of the criminal investigation underway into leaks to the Times of data about the National Security Agency's surveillance of terrorist-related calls between the United States and abroad.

"We are engaged now in an investigation about what would be the appropriate course of action in that particular case, so I'm not going to talk about it specifically," he said on ABC's "This Week."

In December, the Times broke a story about the secret program.

On the talk show, when asked if journalists could be prosecuted for publishing classified information, Gonzales responded, "There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility."

He was referring to the 1917 Espionage Act, which made it a crime for an unauthorized person to receive national defense information and transmit it to others.

Under that act, the Justice Department is prosecuting two former lobbyists for the American Israel Public Affairs Committee for receiving and transmitting classified information they received from a Defense Department official, who recently pleaded guilty and was sentenced to 12 years in prison. U.S. District Judge T.S. Ellis III, who is presiding over the AIPAC case, is weighing a motion to dismiss the charges based on the defendants' claim that the 89-year-old espionage statute is unconstitutionally vague and might violate the First Amendment.

Yesterday, Gonzales said, "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 . . . 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."

As for the Times, he said, "As we do in every case, it's a case-by-case evaluation about what the evidence shows us, our interpretation of the law. We have an obligation to enforce the law and to prosecute those who engage in criminal activity."

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