When Speech Is Outlawed, Only Outlaws Speak

Should reporters who use classified information be treated like spies?

The Justice Department, which was complicit in the National Security Agency's circumvention of the statutory limits on surveillance of e-mail and phone calls, has not shown much interest in getting to the bottom of that apparent crime. It recently abandoned an internal probe of the legal advice DOJ lawyers gave the NSA, ostensibly because its investigators could not get the requisite security clearances.

But that does not mean the Justice Department is ignoring the revelations concerning the NSA's warrantless surveillance. This week Attorney General Alberto Gonzales suggested the government might prosecute New York Times reporters and editors for informing the public about the program. (Disclosure: I worked with one of those reporters, Eric Lichtblau, at The Cornell Daily Sun.)

Gonzales probably had in mind a 1950 amendment to the Espionage Act of 1917 that says "whoever knowingly and willfully…publishes…any classified information…concerning the communication intelligence activities of the United States…shall be fined not more than $10,000 or imprisoned not more than ten years, or both." On its face, this section covers what The New York Times did.

But it also covers what I'm doing right now: discussing, online and in print, a communication intelligence activity that remains classified. The law seemingly applies to everyone who has publicly acknowledged the existence of the NSA's warrantless surveillance program, including the Bush administration's defenders.

Another example of the law's broad reach: The June issue of Commentary includes a letter from Steven Aftergood, an intelligence expert at the Federation of American Scientists, who reports, based on a historical document he has, that the NSA's 1972 budget was $65.2 million–a fact "concerning the communication intelligence activities of the United States" that is still classified. "Should I therefore be prosecuted?" he asks. "Should Commentary be penalized for publishing the information in this letter?"

The problem illustrated by Aftergood's questions would be compounded if the Justice Department applied to journalists a provision of the Espionage Act under which it is prosecuting two former pro-Israel lobbyists for passing along classified information they gleaned from a conversation with a Defense Department analyst. Although it's a matter of dispute whether this provision applies to publishing, the information it covers–anything "relating to the national defense" that "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation"–goes far beyond communication intelligence.

Since the Espionage Act ostensibly criminalizes much innocuous speech, the government has to consider a violation's actual impact on national security in deciding whether to prosecute. And on that score, the case against the Times is weak. It amounts to the claim that, although terrorists certainly were aware that the U.S. might be monitoring their communications long before the NSA surveillance story broke, the public discussion provoked by the Times reminded them of this possibility.

Maybe, but that discussion also brought much-needed attention to important questions about privacy, executive power, and the rule of law. No doubt the president would have preferred to avoid this controversy, but that does not mean it imperils national security.

Presidents of both parties tend to conflate threats to their own power with threats to the nation. Likewise, intelligence agencies have long been known to classify information for reasons unrelated to national security, even to the point of trying to withdraw material that was publicly available for years.

When the executive branch decides what information is secret and whether any given person should be prosecuted for discussing it, the potential chilling effect on reporting and public debate is enormous. So is the potential for unconstitutional favoritism, since classified material is routinely used by journalists both sympathetic and hostile to the current administration.

Largely for such reasons, the Justice Department has never prosecuted a journalist for using classified information in a story. It should not start now.