Slate's Jurisprudence: U.S. Prosecuting Journalists

The Bush administration has asserted that it has the authority to prosecute journalists for publishing classified information. Madeleine Brand discusses the issue with Slate legal analyst Dahlia Lithwick.

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NOAH ADAMS, host:

It's DAY TO DAY, I'm Noah Adams.

MADELEINE BRAND, host:

And I'm Madeleine Brand. These are increasingly tricky times for investigative journalists and their sources. For several years now, the Bush administration has been aggressively pursuing government leakers. And now, Attorney General Alberto Gonzales says he has the legal authority to prosecute journalists who publish classified information.

Dahlia Lithwick is here now, she's legal analyst for the online magazine Slate, and for us here at DAY TO DAY. And, Dahlia, remind us about some of the recent published news stories that the administration is concerned about.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate): Well, I think you make the point really well, Madeleine, when you say there's a difference between the government going after government leakers and this sort of slippage into going after journalist leakers; and that's really where it becomes radical.

It's important to understand that some of the key information we now have about what the government has been doing in this war on terror came from journalists who were disclosing what is arguably classified information. I'm thinking about the Valerie Plame case, where the identity of a CIA operative was leaked to reporters, and the NSA warrant list eavesdropping program that was leaked to The New York Times last December. In other words, a lot of what we know about what the government is sort of secretly doing we know because newspapers passed on this arguably classified information.

BRAND: And there's also the story that was published last year about so called black sites in eastern Europe, the CIA's secret prisons.

Ms. LITHWICK: There's so much that we know - we probably wouldn't know about Abu Ghraib were it not for leaks to reporters who went on to publish information. So the question then becomes this tension between the government's need to keep things secret in order to prosecute the war on terror against the reporter's obligation to keep the publish apprised of what their government is doing in war time.

BRAND: Let's talk about what Attorney General Gonzales said over the weekend about possibly prosecuting journalists. Are there laws that actually apply in this case?

Ms. LITHWICK: Well, Gonzales sort of elliptically said that you can read some laws carefully and - and - and fit those laws to conform to a theory that journalists can be prosecuted. He wasn't specific about what he was talking about, although there is broad agreement, I think, among experts that he was talking about the 1917 Espionage Act; a piece of legislation that is so broad that some commentators have called it absurd. But the act does make it a crime for unauthorized people to receive national defense information and then pass it along to others who are not authorized to hear it. And that certainly sounds like it can be sort of re-jiggered to go after journalists who publish classified information.

BRAND: And Dahlia this comes at a time when ABC News has disclosed that at least its investigative reporters have had their phone calls tracked.

Ms. LITHWICK: That's right, Madeleine. Recently ABC reporter Brian Ross claims that he and others were warned that the administration is aware of who he is calling. Not the contents of his calls, who he is calling and that he should get rid of his cell phone. This doesn't come up under the 1917 Espionage Act, it comes up under a provision in the Patriot Act called National Security Letters that essentially allows the FBI to just write a letter to a phone company and say I want to see all of Madeleine Brand's phone records. There's no judicial oversight, and more over, Madeleine Brand never finds out that this is happening.

I'll add that the White House denies that National Security Letters are being used against reporters. They say they only use them in terrorism cases, but certainly if there's any truth to these allegations it's just another way that reporters are increasingly on the hook in ways that we never even find out about.

BRAND: Thank you, Dahlia.

Ms. LITHWICK: My pleasure, Madeleine.

BRAND: Opinion and analysis from Dahlia Lithwick, she covers the courts for the online magazine Slate and for us here at DAY TO DAY.

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