Monday, May 22, 2006

Gonzalez considers charging reporters in NSA leaks

Striking another blow for government secrecy, Attorney General Alberto Gonzales may prosecute reporters for having the audacity to listen to sources describe a secret, controversial and possibly illegal warrantless surveillance 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.

This is Gonzales at his best, carefully parsing the letter of laws for anything that can be used to support a preferred course of action, without regard to context, morality or intent. It's the kind of lawyering that let him find torture exceptions to the Geneva Convention. It should surprise no one that Gonzales would resort to such technocratic lawyering, but it should persuade no one, too.

Conservatives have become quite enamored of the 1917 Espionage Act, being as it's the only extant law on the books that affords even the possibility of jailing reporters -- something of a conservative wet dream, it seems.

The problem is that the Espionage Act was a horrid piece of legislation, much of which has been explicitly and implicitly repudiated by successive Supreme Courts in the 90 years since its passage.

The law provides that any attempt to communicate or publish information related to national defense is a criminal act, if doing so was intended to harm national security. The harshest penalties apply if such actions occur during wartime.

The law is incredibly broad and vague, and could apply to just about any reporting on any aspect of military operations that doesn't involve merely repeating official military communications. Used aggressively, the law would gut any meaningful independent coverage of wartime conduct.

It also points up once again why treating our battle against terrorism as a "war" in the conventional sense is a really, really bad idea. Doing so will extend "extraordinary" wartime suspensions of civil liberties into ordinary everyday realities. And democracy is the loser when the public can no longer maintain credible independent oversight of government actions.

It speaks volumes about the administration that it is willing to reach back into the mists of time to find a bad law that it can use to silence its critics and stifle public discussion about the conduct of this "war". I hope they get their butts handed to them for even considering it.

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6 Comments:

Anonymous Anonymous said...

This is Gonzales at his best, carefully parsing the letter of laws for anything that can be used to support a preferred course of action, without regard to context, morality or intent.............
Isnt parsing words the great pastime of the constructionist/"federalist" republican backed lawyers of today?
Unless people with common sense find a way to educate the electorate about the need for common sense and realism, this will keep happening.
On one hand the likes of Gonzales and Scalia are parsing laws to suit their thoughts, and on the other hand Michael Hayden denies the existence of the term' probable ' cause in the 4th amendement and he gets to walk in the park,er senate.
I am new to your Blog , keep up ur good work.
Gopal

5/22/2006 11:16 AM  
Anonymous Anonymous said...

This is truly scary. Even talking about using the 1917 law is reprehensible, but using it would be sheer madness. If the Bush administration wants to clamp down on leaks in its continued quest of secrecy, they should confine it to within the government and refrain from threatening the media and free speech itself.
Or how 'bout this? Don't provide so much fodder for leaks by distorting, streching, bending, ignoring, or breaking the law.
- Caracarn

5/22/2006 1:23 PM  
Blogger Sean Aqui said...

Considering that we managed to get through WW II, Korea, Vietnam and the first Gulf War without resorting to the Espionage Act, this says more about the administration than about the "threat" posed by reporters.

Gopal, thanks for the kind comments. Welcome aboard!

5/22/2006 1:32 PM  
Anonymous maxtrue said...

You know I am big supporter of civil liberties, but I am more concerned about how whistle blowers are treated inside an agency by superiors and Congress ceating even better channels. Media is not where leaks should end up.

On the other hand Cheney, Tenet, Negroponte, Rice, Rumsfeld, Hayden, Goss, and even Powell have made false declarations concerning intelligence. Their suspect credibility has imposed a kind of binary code on the "spying" discourse that clouds valid arguements on both sides of the aisle. Gonzales is a major example of questionable assertions. His record as Attorney General probably kept him from the Supreme Court. I have no doubt he would condone warrantless spying on suspect illegal immigrants for the purpose of deportation. I also wonder how the FBI found 90.000 dollars in a Congressman's office refrigerator today. The raid was a government first and would we be surprised to learn phone call records played a part?

It took Watergate and Frank Church to balance Constitutional institutions. Who sees a similar maverick? Spector? LOL McCain? I think not.

5/22/2006 7:51 PM  
Blogger Sean Aqui said...

Max: Agreed. If we treated whistleblowers properly -- instead of trying to silence them, ignore them, fire them, wreck their careers, etc. -- there'd be no need to leak to the press. But despite myriad laws on the books protecting whistleblowers, we still treat them shabbily. Human nature, I guess. But one reason why attempting to muzzle the press is a lousy idea. Better an irresponsible press than a tame one.

5/23/2006 9:49 AM  
Anonymous Anonymous said...

This is not whistleblowers!! This was leaked by someone who doesn't agree with the Bush administration....someone like Mary McCarthy....who thinks they have been elected President. And obviously someone who didn't care how much they harmed the country's terrorism operations in the process.

It seems that some of you call a leak of Classified information "whistleblowing" when it's a leak you like; one that while hurting the country will also hurt the Bush administration and after all, that's more important to you.

You also saw nothing wrong with CIA employee Valerie Plame and her husband "LEAKING" classified CIA infomration anonymously because after all, it was intented to hurt the Bush administration. But you had a real problem with the Bush administration fighting back by defending themselves against the lies that Plame and Wilson told to reporters.

Truly unbelievable!
JP5

5/23/2006 8:47 PM  

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