By Walter Pincus
Washington Post Staff Writer
Wednesday, June 7, 2006
Senior Republican and Democratic members of the Senate Judiciary Committee sharply criticized a Justice Department official yesterday for refusing to say whether the Bush administration has ever considered prosecuting journalists for publishing leaked national security information.
The senators also bristled when Deputy U.S. Attorney Matthew W. Friedrich declined to answer questions about the rationale for the FBI's attempts to review the papers of the late columnist Jack Anderson.
"You're basically taking what would be called a testifying Fifth Amendment. You should be ashamed of yourself, or your superiors should be ashamed of themselves," Sen. Patrick J. Leahy (D-Vt.) told Friedrich after he declined to answer questions from committee Chairman Arlen Specter (R-Pa.) and Sen. Charles E. Grassley (R-Iowa).
The purpose of the hearing, Specter said in opening the session, was to examine Justice Department efforts to control leaks, explore suggestions that newspapers and their reporters can be prosecuted under the 1917 Espionage Act and take comment on legislation that would protect reporters through a shield law. The law would provide an exception if national security matters were involved.
Friedrich, in his opening statement, confirmed that the Justice Department was prepared to investigate and prosecute leaks, but referred to Attorney General Alberto R. Gonzales's recent statement that the "primary focus is on the leakers of classified information, as opposed to the press."
When Friedrich confirmed that the department thought that journalists or "anyone" could be prosecuted under the Espionage Act for publishing classified information, Specter asked specifically about whether the law could be applied to reporter James Risen of the New York Times, the newspaper that published an article in December about the National Security Agency's warrantless surveillance program.
"Obviously, Senator, I can't comment as to any particular case or specific matter," Friedrich said. He added that espionage laws "do not exempt . . . any class of professional, including reporters, from their reach."
Specter then asked, without specifying a particular case, whether the department, under Gonzales or former attorney general John D. Ashcroft, ever considered prosecuting a newspaper or reporter for publishing leaked classified information.
"I don't think it would be appropriate for me to give an indication one way or another, and I hope people don't read anything into my answer one way or another," Friedrich said. But after a short lecture from Specter, he added that it was his "understanding" that there were historical examples of officials considering whether to prosecute journalists.
"I'm not interested in history this morning," Specter responded. "I'm interested in current events."
Grassley sought to follow up on questions he had posed to FBI Director Robert S. Mueller III at a hearing last month about the bureau's attempts to access Anderson's files. Friedrich declined to answer but said that "hopefully the bureau will be submitting some type of factual submission to you on that."
Grassley responded: "I would think that the department would send somebody here to testify that could answer our questions if they [had] any respect for this committee whatsoever."
Friedrich told Specter that the department is studying a policy on issuing subpoenas for documents from the estate of a deceased reporter such as Anderson. He also said that Justice continues to maintain that no new legislation is needed to protect reporters, but said he will "take a closer look" at a bill now before the committee that would shift the decision to subpoena journalists from the executive branch to a judge.
Yesterday afternoon, Specter also put off a vote on issuing subpoenas for executives of three telephone companies to testify on whether they cooperated in the NSA warrantless surveillance program by providing records of millions of phone calls.