Official secrets

The Washington Post had a thoughtful editorial yesterday entitled "Official Secrets" and subtitled "Be careful what you read." The nub of the Post's argument is in this paragraph.

"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." I've written about this issue before.

Note that the Post concedes that the statute, if read literally, "makes criminals out of journalists who publish such material." The Post is arguing for a nonliteral reading based (though it doesn't use the word) on the legal doctrine of laches. That doctrine is that a right that the government or a private party asserts can fall into nonexistence from disuse. Under this doctrine, if your next-door neighbor has been using a driveway partly on your property and you've acquiesced in this for many years, you can't come into court and force the neighbor to stop trespassing on your property. If the government prosecutes you for opening your store after 5 p.m. on Sunday after not enforcing that statute for many years, it is an unjust prosecution, and laches may be a possible defense. As applied to the Espionage Act of 1917 and the amendment of 1950, the argument would be that it is unjust to suddenly start enforcing a criminal statute that the government has left unenforced for many years. Private parties—newspapers—have come to rely on that nonenforcement and should not be penalized for doing so.

The problem with the laches doctrine in this situation, however, is that, as the Post notes, the government is now using the Espionage Act to prosecute not only government officials who disseminate secret information (former Pentagon official Lawrence Franklin, who has been convicted) but also the recipients of that information (two former officials of the American Israel Public Affairs Committee, who are currently being prosecuted).

Let me parse the sentences of the Post's last paragraph.

"Criminalizing such disclosures would be antithetical to the American tradition," writes the Post: a pure laches argument.

"Yet the administration has set about doing it without even asking Congress." But of course Congress could always repeal the Espionage Act and the 1950 amendments, and it has not done so. It's not clear why the administration needs to ask Congress for permission to enforce a statute that Congress could repeal but has chosen not to. This is evidently also a laches argument: that Congress has come to rely on nonenforcement and so felt no need to repeal. But this argument is weakened by the pendency of the Franklin and AIPAC cases, which have been ongoing for several years: They put Congress on notice that the statute was being enforced, and against former staffers of what some have described as one of the most powerful lobbies in Washington.

Which the Post recognizes. "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." And it brings up another case. "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." This is a reference to the possibility that the government may prosecute the New York Times for its disclosure of the National Security Agency surveillance of conversations between suspected al Qaeda operatives abroad and persons in the United States (something squarely covered by the 1950 amendment to the Espionage Act) and the Post itself for its disclosure of CIA secret prisons in Eastern Europe.

"It is a dangerous road." I agree. But of course it was the press, led by the editorialists of the New York Times, that bayed loudly for investigation and prosecution of government officials who disclosed the name of CIA operative Valerie Plame, even though it was far from clear that there was any violation of the statute in question, the Intelligence Identities Protection Act of 1982. The press, or large parts of it, is all for prosecution—even if it leads, as it did, to the jailing of then New York Times reporter Judith Miller—if such a prosecution will hurt the Bush administration. On that one, it was the press that was hurtling down "a dangerous road." The Times and Post reporters and editors who published the stories I referenced above are at the very least in the same legal position as Judith Miller; that is, they are witnesses to acts that are in violation of statute and may be jailed for contempt if they refuse to testify against those who illegally disclosed classified information. At worst, they stand in the same legal position as the two former AIPAC officials, who received the information and passed it along to others—and perhaps are in a worse position, since those two defendants argue, quite possibly plausibly, that they did not know that the information they received was classified, while the Times and Post editors clearly did have such knowledge. There's a strong argument against prosecuting the press on these grounds, that doing so is going down "a dangerous road." But the press, which after all has knowledge of the Franklin and former AIPAC officials' prosecutions and the fact that Congress has not repealed the statutes responsible for them, has been going down "a dangerous road," too.