Prosecuting journalists won't work

In normal circumstances, you would consider yesterday's comments by the Attorney General of the United States to be mere cage-rattling. No way, you would tell yourself, all things being equal, that the federal government is going to start to prosecute journalists for publishing classified information that they obtained legally. There just isn't enough upside. The federal laws are terribly vague and, even if they weren't, there is that amendment, the first one, that ought to serve even among conservative judges, as a bulwark against punishing free speech and a free press. In short, the legal basis for going after journalists is almost as bad as the political fallout that would ensue.

But these are not normal circumstances and all things are not equal. The folks who are now threatening to prosecute reporters are the very same folks who have one high-profile terror law issue after another since September 11, 2001. They are the folks who kept U.S. citizens as "enemy combatants"-- incommunicado and without the ability to contest the allegations against them-- until the courts forced them to disgorge the men. They are the folks who pretended right on through trial that Zacarias Moussaoui was a key figure in the 9/11 plot even though they knew he was not. They are the same folks who called Jose Padilla a "dirty bomber" when he wasn't; called Moussaoui the "20th hijacker" when he wasn't; and have called a whole bunch of people "terror supporters" when in fact they are not.

No one, therefore, should have any illusions about the capability of this White House and Justice Department to try to force the issue in federal court. Government attorneys will cry "national security" and contend that the main federal law in the area could and should be applied to reporters (even though the language of the statute doesn't exactly say so). And even if the government ultimately loses, which would be the way to bet, can you imagine the chilling effect such prosecutions would have on front-line investigative reporting? Can you imagine that hand-wringing that would occur in newsroom across the country? Can you imagine how dramatic such a prosecution would be, harkening back to the Pentagon Papers case during the last unpopular war?

That's part of the government's point, of course. No doubt the Justice Department hopes that the mere threat of prosecution helps staunch the flow of classified information from the government to the public. We'll see. Interesting times always seem to generate interesting leaks of vital information-- do you feel better or worse now that you know about the National Security Agency's domestic surveillance program?-- and no one can deny we are living right now in interesting times in the world of the law.

By  |  May 22, 2006; 3:00 PM ET
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