Prosecuting leakers

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Sunday's Washington Post had a story on the government's attempts to track down leakers of classified information. I wrote about this last week. The Post's headline— "White House Trains Efforts on Media Leaks" — seems to be misleading, since the rest of the article talks about investigations by the Justice Department and calls for investigations by CIA Director Porter Goss. This is a tricky issue, as I wrote before, on which I think there is good reason to be ambivalent. We want a free press and a free flow of information. But we also want certain government secrets to remain secret.

One quotation from the Post's executive editor, Leonard Downie, reflects this ambivalence:

"We do not want to inadvertently threaten human life or legitimately harm national security in our reporting," he said. "But it's important . . . in our constitutional system that these final decisions be made by newspaper editors and not the government."

But unfortunately from Downie's point of view, that's not the law. The Espionage Act of 1917, as amended in 1950, clearly prohibits the dissemination of classified information. Under that law, the "final decisions" are those of courts, not newspapers.

What has happened in practice is that, over the years, the government has shown great restraint in bringing prosecutions, for a variety of reasons—often to protect sources and methods. But the statement by the Justice Department quoted in the last paragraph gets the law right.

"The Justice Department said 'there plainly is no exemption' for the media under the Espionage Act but added, 'A prosecution under the espionage laws of an actual member of the press for publishing classified information leaked to it by a government source would raise legitimate and serious issues and would not be undertaken lightly; indeed, the fact that there has never been such a prosecution speaks for itself.' "

But what may be happening is that government prosecutors are asking reporters to identify those in government who leaked classified information, with a view to prosecuting those government employees. Reporters' natural inclinations are to refuse to answer such questions, to protect their sources. But they have no legal right to refuse on those grounds and can be jailed for contempt if they do—as Judith Miller found. They could also refuse to answer, I suppose, by invoking their Fifth Amendment right to avoid self-incrimination. But that would be a tacit admission that the government has a right to prosecute them under Section 798 of the Espionage Act, something Downie does not want to concede.

The left-wing mainstream media had a lot of fun yelling and howling that the disclosure of Valerie Plame's name was a heinous breach of national security and that the leakers of that name had to be tracked down and prosecuted. Now they're paying the price for their fun.

Here's Glenn Reynolds's pithy take on the issue. As usual he's spot on.