On Statesman.com:


Questions for Debate:

1. Can (should?) the justice department prosecute journalists that reveal classified information under the Espionage Act?

2. Specifically, should the New York Times be prosecuted under the Act for their revelation of the NSA's domestic (warrantless) wiretapping program? Why or why not?

3. Will doing so have the effect of "chilling" investigative reporting at the Federal level?

Lets get right to the heart of it- it is the gestapo, pure and simple. These "leaks" didn't harm soldiers or tactics directly- they exposed GW administration torture and other wrong doing.

1)The only reason worthy of prosecuting journalists is when it has no value as news of goverment wrongdoing, it is just releasing information to harm the military directly by specifying troop movments, or direct operations involving a battle- NOT for the things Gonzales is worried bout- you know, his boss looking incompetant and evil.

2) No- in fact, the poeple that should be tried is the folks that allowed the wiretapping. Man, I guess we really are moving in the direction of nazi germany! It is simply pay back for showing the evil doing of this administration.

3) I hope not- I hope it is a call to arms of all journalists- we are the cusp of a police state, and the only way to avoid it is to expose more of the wrongdoing of the GW torturers and secret political police. The folks that exposed the GW admin are heroes of freedom. WE need a nuremburg trial for this admin, and soon.

For the record, CruisingRam has already officially lost the debate. link

1. Can (should?) the justice department prosecute journalists that reveal classified information under the Espionage Act?

I guess I missed the part of the Constitution that exempts journalists from following the law. Of course they can be prosecuted. The government has refrained from doing so up until now out of a respect for the press.

However, the press seems to be at at a nadir when it comes to respect for national security concerns. It seems only appropriate that they be reminded that there are laws regarding this issue.

For those that think the press is immune, consider this: Scooter Libby could get 20 years in the clink for revealing Valerie Plame's name to a few reporters(hypothetically, since he wasn't charged with doing this) but Judy Miller wouldn't be breaking the law if she revealed the same information to an audience of 500,000 readers. Does that seem consistent? One guy gets 20 years for telling 2 to 3 people and somebody else is immune for telling the same thing to half a million people?



I beg to differ from Ms. Dalglish. 75 newspapers lost their mailing privileges or were otherwise pressured into not revealing anything concerning World War I shortly after the 1917 Espionage Act was enacted. Although no journalists were prosecuted, the precedent is certainly there that this statute applies to newspapers and other journalists.

In Schenck v. United States, 249 U.S. 47 (1919), the US Supreme Court ruled that this law only applied when there was a "clear and present danger" to the government action at issue. Did the NSA leak and story pretty much kill off the value of such "Secret" wiretaps? I think it did and thus was, demonstrably, harmful to the government's activity.

2. Specifically, should the New York Times be prosecuted under the Act for their revelation of the NSA's domestic (warrantless) wiretapping program? Why or why not?

I believe this revelation has harmed our national security. It has harmed a national security program. I think the law applies in this case.

The portion of the 1917 Espionage Act which is still on the books is 18 USC 793, 794 Part 793 Part 794


The reporters were in "unauthorized" possession of the information regarding this program. They then delivered or transmitted it to other persons not authorized to have it. They clearly broke this law.

3. Will doing so have the effect of "chilling" investigative reporting at the Federal level?

Journalists are not above the law. They can follow the law and still be investigative. As they say: "The devil's in the details." They could have done a story about this and not revealed the exact nature of it. They certainly should have known that a program such as this, being classified, cannot be printed without possible ramifications.

The proper whistleblower procedure (there is one) is to report this to Congress, NOT to the New York Times.

Questions for Debate:


Yes. The classified details of any operation need not be revealed.


Yes. The program is now dead and I have not seen definitive opinion that it is illegal. Thus the story outs a useful intel tool and hurts national security.


No. Reporting can be done without revealing classified info. The NYT clearly loved hurting the Administration with the allegations and could care less how badly they also hurt our national security.

1. Can (should?) the justice department prosecute journalists that reveal classified information under the Espionage Act?I am sure they will find a way to regardless of whether or not it already exists or not. That is what people with power do to those who dare stand in their way.

2. Specifically, should the New York Times be prosecuted under the Act for their revelation of the NSA's domestic (warrantless) wiretapping program? Why or why not?
No. They should be applauded. Government needs to held accountable by whatever means necessary or they will simply do as they please-- as the wiretapping clearly shows.
3. Will doing so have the effect of "chilling" investigative reporting at the Federal level?Yes this is simply the governments way of proclaiming that those who do not offer complete obedience to the State will be dealt with one way or another.

Sorry Amlord but this is a gross misappropriation of the word "precedent." That the law applies to newspapers is irrelevant, the law was never used or interpretted to journalists. From Duhaime's Law Dictionary:



If the law was never used to prosecute journalists, it does not establish a precedence for prosecution.

On edit: My bad. I claimed that this act was never used to prosecute anyone, which is factually incorrect. It was used to imprison anti-war activists and political dissidents for publishing editorials and even cartoons. My point still stands though, the law was never used to prosecute journalists for disclosing information, nor was classified information the source of prosecution. It instead was used to suppress dissent that would hinder the "war" efforts of the Great War and Cold War.

I haven't missed the part about how you consistently favor preceived security at the expense of civil liberties and how you rouitinely wink at every attempt by the Bush Administration to limit civil liberties under the guise of national security.

Jonathan Turley, a constitutional law professor with impeccable credentials, begs to differ with you.

Jonathan Turley Biography
Click on Profile

I think he's right on the money in suggesting that the press (Fourth Estate) is really our last defense against Attorney General Alberto Gonzalez and the other near thugs in this administration who are using every opportunity to seize power.



Jonathan Turley on Countdown 5-22-06

The current bunch in Washington currently controls the Presidency, the House the Senate and much of the federal court system. Do you really want to hand them the press as well?

Edited to fix quote tag.

Neither you nor your cited impeccably-credentialed law prof offered any evidence that "the Constitution exempts journalists from following the law." But thanks for another compelling transcript from Keith O. You watch so I don't have to! And seriously, for a con law professor to say this is really absurd. The Fourth Estate is carrying the entirety of that check and balance?


As I'm sure the good professor knows, the government did indeed consider bringing charges against the Chicago Tribune for printing a story on the Japanese fleet, which basically told the Japanese that we had broken their code. They ultimately did not bring charges, for fear of revealing secrets.

And I know that the talking points issued on this insist that we remind everyone that it's the 1917 Espionage Act , it's a relic of the past like Eugene Debs or whatever... Actually, in 1950, Congress amended the act, partly because of the Tribune thing. Again, not that it matters. The First Amendment is not routinely derided by the New York Times or the ACLU as "The 1791 First Amendment"...
link to 18 usc 798

Section 798, when passed, had the support of the American Society of Newspaper Editors. How Times have changed. Did I mention that it passed in 1950? Not 1917.Here is an article on the subject, for anyone who cares to read up on it. The intellectual laziness with which the press reports on this issue is staggering, given how much they have to lose and how serious the 'war on terror' could be for all of us.

No, carlitoswhey you are wrong. "Intellectual laziness" belongs to the American public that's let this administration do anything it damn well pleased in the name of national security.

The media was "intellectual lazy" or maybe just plain scared in not challenging Bush more during his first four year term.

This kind of crap has been with us since the Alien and Sedition acts passed under and signed by John Adams. Fortunately, it's been short lived in the past. I hope we have the intestinal fortitude to make it short lived this time.

I'm guessing here, but you aren't really serious when you write that this government has refrained from prosecuting journalists "out of a respect for the press."

Not since The Nixon Administration has there been a presidency which has less regard and less respect for the role of the Fourth Estate than that of George W. Bush. This Administration is obsessed with secrecy, eroding the protections of the First Amendment and hiding the facts from the American public. You really kill me Amlord with your trust that the likes of Bush, Cheney, Rumsfeld, Rice and the rest of that cabal give a rat's butt about open government. No one disputes that the national security of the United States is important. But even national security is secondary to protecting the Constitutional rights of the American public.



Bush and the right-wing zealots don't want a free press. They want a compliant, obedient press like their cheerleaders at Faux News. They think that telling people about Gitmo, Abu Gharib, the wiretappings and data mining, the forced renditions of prisoners to other countries to be tortured and WORSE should be kept on the down low. This is all in the name of national security. We're being protected from the terrorists who want to destroy our way of life.

Please. Aren't we past the point where the boogie man of Osama bin Laden can endlessly be used to frighten us into stupidity? Apparently not for some of us.

If you think the likes of Denny Hastert, Bill Frist, Pat Roberts and the other Republican toadies who call themselves "leaders" in Congress are seriously going to challenge the increasingly imperial presidency of George W. Bush, you must be high, Amlord. Congress has abdicated any responsibility of being the watchdogs of the Bush Adminstration. Lapdogs are their chosen role.

The Cato Institute, far from a bastion of liberalism, has issued a report about the president's lust for hoarding authority within the Executive Branch in a report entitled, Power Surge: The Constitutional Record of George W. Bush

From the summary: In recent judicial confirmation battles, President Bush has repeatedly—and correctly—stressed fidelity to the Constitution as the key qualification for service as a judge. It is also the key qualification for service as the nation's chief executive. On January 20, 2005, for the second time, Mr. Bush took the presidential oath of office set out in the Constitution, swearing to "preserve, protect and defend the Constitution of the United States." With five years of the Bush administration behind us, we have more than enough evidence to make an assessment about the president's commitment to our fundamental legal charter

Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes


* a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;

* a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;

* a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as "enemy combatants," strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and

* a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.

President Bush's constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.

http://www.cato.org/pub_display.php?pub_id=6330

Even in it's present corporate-owned, entertainment obsessed, celebrity-worshipping, state of rot, it is primarily the free press that acts as one of the few agencies with the ability to force those in power to give an accounting of their actions to the American public. I shake my head at those myopic partisans who would throw away their right to hold their elected officials responsible for vague assurances that everything they do is done to keep them safe from harm.

In 1977, President Nixon said in an interview with David Frost, Well, if the President does it, it is not illegal.

In 2003, in response to a question about celebrities opposing the Iraq War, pop star Britney Spears said, Honestly, I think we should just trust our president in every decision that he makes and we should just support that, you know, and be faithful in what happens.

The late Supreme Court justice Hugo Black said, Paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people.

The posters in this thread that would stifle and silence the press have more in common with Richard Nixon and Britney Spears than they do with Hugo Black.

It is NOT the job of the press to expose the secrets that keep us safe. It IS the job of the press to expose the lies behind the secrets that keep those that tell the lies safe. I don't think you understand that Amlord. It's their job to keep the politicians and generals and bureaucrats sweating bullets and squirming under the pressure that the truth may find them out. It isn't the job of a free press to be the propaganda arm of the war machine.

Democracies die in dark places and there are few darker place than the hearts of Dick Cheney, Donald Rumsfeld and their ilk. The freedom of the press is guaranteed by the First Amendment. It isn't some toy for Alberto Gonzales to take away when he's ticked off at the Washington Post. You sneered at Cruising Ram for drawing comparisons with Nazi Germany, Amlord, but what's so different from a minority of monied elites now who believe they and they alone can be trusted to know what is best for the masses, and the rag-tag gang of thugs, failures, psychopaths and killers that Hitler led to power then? We're not creeping toward a Nazi state. We're creeeping toward a fascist state.

I absolutely believe far more in the ability of a free press to tell us about what is truly being done in the name of national security than the pathological liars of the Bush Adminstration. The power to defend the ideas that make America worth saving rests with its people, not politicians. But first, they need to be aware of what is being done by those politicians in their name.

Such rhetoric. You'd think anyone expressing opinions above would be rounded up by our fascist government. I suppose you guys are all hiding in the basement now.

We have to ask ourselves a few basic questions.

1. Are there legitimate secrets related to national security?

2. Is there a legitimate rationale for keeping these secrets?

3. Is there a law against publishing, transmitting, or otherwise divulging such secrets?

In this particular context, we should ask ourselves:

1. Is this particular secret a true national security secret?

2. Does revealing this secret divulge information best kept secret from the enemy?


Of course, my answers to these questions are : yes, yes, yes, yes, and yes. Others may disagree, particularly with the last question.

Let's put some reality on this situation: no journalists are going to jail for bashing Bush or reporting his low poll numbers or even for printing the name of a (perhaps) NOC agent at the CIA. In our rush to pull the fascist card (sorry nighttimer, but fascist=Nazi) we overlook the fact that the government isn't locking anybody up for dissent. In fact, it isn't locking anybody up for leaking national security secrets either. They should have, but they haven't.



I completely agree. The press can expose lies without exposing national security secrets.



Can you name one journalist who has been prosecuted by this administration for revealing classified information? How about one administration official? Ah yes, Scooter Libby, how very fascist of them. So we have one administration loyalist and no whistleblowers or journalists. Yep, it'll be "Zieg Heil" any day now.

1. Maybe
2. Probably not.
3. Depends.

Reasons for above answers.

1. I think that the government classifies too much. There have been many cases where the government classified information that was embarrassing rather than a security risk. If a journalist reveals something that turns out to have been a legitimate security risk then they should be prosecuted. The same as anyone, including congresspersons!

2. If the issue revealed turns out to have been an illegal act by the government or something that shouldn't have been classified in the first place then no they shouldn't be. On the other hand . . . (See #3)

3. I think that there needs to be some restraint on both sides. If a fear of being prosecuted keeps journalists from reporting valid security issues great. If the knowledge that there is someone watching them will help limit what the government thinks it can get away with great! However the other side of the coin is that if the journalists OR the government thinks that they have free rein then it is not good.

I don't think I want to be so witless that I will seriously accept anything Britney Spears says regarding national policy as "good" On the other hand I don't know that I want a "fourth estate" who thinks that reporting on stories such as "Britney Spears Stumbles, Nearly Drops Baby" is news seriously investigating anything.

If the President thinks that tapping phone calls is important let him discuss it with Congress in closed session. However if a congressman thinks that leaking what was discussed in that session is a great way to score brownie points with his electorate by "revealing what the corrupt majority doesn't want you to know" I think they should be liable for prosecution by either the Congress as a whole or by a special court.

I think one of the reasons that the Executive branch has been trying to ditch as many of the checks on their power is because they can't trust the legislative branch to show any restraint. (That by the way is a bipartisan slam)