Official Secrets

Tuesday, May 23, 2006

ATTORNEY General Alberto R. Gonzales, asked this weekend whether he believes he can prosecute journalists for publishing classified information, made a statement that should chill the bones of every American who values a vigorous press: "It depends on the circumstances." Speaking on ABC's "This Week," Mr. Gonzales explained, "There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility. That's a policy judgment by the Congress in passing that kind of legislation. We have an obligation to enforce those laws." But presenting the administration's radical new strategy as mere deference to Congress is profoundly dishonest.

The administration is seeking to convert a moribund World War I-era espionage law into an American version of Britain's Official Secrets Act. Mr. Gonzales is correct that the law, which bans the transmission of national defense information to anyone not cleared to receive it, would -- if read literally -- make criminals out of journalists who publish such material. For that matter, it would also permit the jailing of whistle-blowers, academics who write about leaked information, members of Congress who disclose secrets and, theoretically, even readers of newspapers who discuss the stories. Precisely because of the law's unthinkable scope, the First Amendment has long been understood to limit its application. Government has gone after officials who promise to protect the nation's secrets and then fail to do so -- but generally not against citizens who receive those secrets.

The attorney general pretends that the administration's current understanding of the law merely reflects Congress's policy judgment, rather than its own. Yet only a few years ago, when Congress passed (and President Bill Clinton vetoed) a bill to criminalize leaks of classified material, people on both sides of the issue understood that current law did not criminalize the vast majority of leaks -- let alone subsequent disclosures by people who never swore to protect classified material in the first place.

Criminalizing such disclosures would be antithetical to the American tradition. Yet the administration has set about doing it without even asking Congress. It has brought a case against two pro-Israel lobbyists for receiving leaks and transmitting them to colleagues, a reporter for The Post and the Israeli embassy. It has leaned on the family of the late journalist Jack Anderson to allow FBI agents to rifle through his old papers -- on the theory that, as a bureau spokesman recently explained it, "no private person may possess classified documents that were illegally provided." And as the attorney general's comments make clear, it is considering prosecuting journalists for doing their jobs. It is a dangerous road.

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