Gonzales Says Publishing Leaks Is A Crime

loqi writes "The NY Times is reporting on a statement from US Attorney General Alberto Gonzales declaring that journalists may be prosecuted by the federal government for publishing classified information. On the 1st amendment ramifications: "'But it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity,' he said. 'And so those two principles have to be accommodated.'" So our 1st amendment rights don't trump the right of the federal government to violate them?"

Comments

Chilling effects!

[Whiney Mac Fanboy]

Can't Gonzales think of the unintended consequences of legislation such as this? If leeks can no longer be published, what will happen to websites such as this one? ;-)

Now I've gotten my joke in, for those too lazy to install the firefox bugmenot extension here's the article text:

Gonzales Says Prosecutions of Journalists Are Possible

The government has the legal authority to prosecute journalists for publishing classified information, Attorney General Alberto R. Gonzales said yesterday.

"There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility," Mr. Gonzales said on the ABC News program "This Week."

"That's a policy judgment by the Congress in passing that kind of legislation," he continued. "We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected."

Asked whether he was open to the possibility that The New York Times should be prosecuted for its disclosures in December concerning a National Security Agency surveillance program, Mr. Gonzales said his department was trying to determine "the appropriate course of action in that particular case."

"I'm not going to talk about it specifically," he said. "We have an obligation to enforce the law and to prosecute those who engage in criminal activity."

Though he did not name the statutes that might allow such prosecutions, Mr. Gonzales was apparently referring to espionage laws that in some circumstances forbid the possession and publication of information concerning the national defense, government codes and "communications intelligence activities."

Those laws are the basis of a pending case against two lobbyists, but they have never been used to prosecute journalists.

Some legal scholars say that even if the plain language of the laws could be read to reach journalists, the laws were never intended to apply to the press. In any event, these scholars say, prosecuting reporters under the laws might violate the First Amendment.

Mr. Gonzales said that the administration promoted and respected the right of the press that is protected under the First Amendment.

"But it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity," he said. "And so those two principles have to be accommodated."

Mr. Gonzales sidestepped a question concerning whether the administration had been reviewing reporters' telephone records in an effort to identify their confidential sources.

"To the extent that we engage in electronic surveillance or surveillance of content, as the president says, we don't engage in domestic-to-domestic surveillance without a court order," he said. "And obviously if, in fact, there is a basis under the Constitution to go to a federal judge and satisfy the constitutional standards of probable cause and we get a court order, that will be pursued."

For those of you that don't read Digg...

[republican gourd]

Here is the link to the leaked AT&T Court documents that were released on Wired this morning:

http://blog.wired.com/27BStroke6/att_klein_wired.p df

So much for the Pentagon Papers precedent.

[Mr Z]

The Introduction to the Court Opinion on the New York Times Co. v. United States Case (the Pentagon Papers case) opens with:

In a democracy, there is always a tension between a free press and the government, between what the government claims ought to be kept confidential and what reporters believe the public ought to know.

There are some other choice tidbits in there... such as (emphasis added):

[The First Amendment] leaves, in my view, no room for governmental restraint on the press. There is, moreover, no statute barring the publication by the press of the material which the Times and Post seek to use... [I]t is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.

So any power that the Government possesses must come from its "inherent power." The power to wage war is "the power to wage war successfully." But the war power stems from a declaration of war. The Constitution by Article I, Section 8, gives Congress, not the President, power "to declare War." Nowhere are presidential wars authorized. We need not decide therefore what leveling effect the war power of Congress might have.

These disclosures may have a serious impact. But that is no basis for sanctioning a previous restraint on the press...The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental sup-pression of embarrassing information. A debate of large proportions goes on in the Nation over our posture in Vietnam. Open debate and discussion of public issues are vital to our National Health. The stays in these cases that have been in effect for more than a week constitute a flouting of the principles of the First Amendment as interpreted in [Near v. Minnesota].

Hmm....

--Joe

Re:Congress shall make no law...

[phoenix.bam!]

There is nothing to stop a newspaper from reporting a rape victim. The rape shield laws apply to court documents.

See the following link about undercover officers, as it was all i could find:
http://72.14.209.104/search?q=cache:aMy58CMCA8AJ:w ww.rcfp.org/news/2003/0926crowvl.html+newspaper+un dercover+officer&hl=en&gl=us&ct=clnk&cd=3

Re:Congress shall make no law...

[gkhan1]

There is a Swedish law that I am very, very fond of. In sweden, if someone leaks information to the press about the government, the government is not only forbidden to prosecute, or even fire, the person who leaks, but it is infact illegal for the government to even investigate to try and find out who the leaker was (this obviously does not apply to cases where the leak is illegal, ie someone has leaked classified information. Though almost all leaks to the press, in terms of quantity, are not illegal, neither here nor in the US). Note also that this only applies to the government, not the private sector.

I don't mean to brag about my country (although I enjoy it, it's such a rare occorance ;), but freedom is something we do really well. Infact of the four parts of the swedish constitution, the Freedom of the Press Act is the oldest one, dating back to 1766 (the three other parts are The Act of Succession, The Fundamental Law of Freedom of Expression and The Instrument of Government). That act also includes whats known as "Offentlighetsprincipen", roughly translated as "The Publicity Principle", stating that all government documents (with certain exceptions, such as documents that would endanger national security and documents relating to matters under investigation, although no document may be withheld more than X number of years (I believe X=70, but I'm not sure)) should be readily available to the entire public. Basically, it's the same as The Freedom of Information Act. But Offentlighetsprincipen was included into the constitution in 1766! 1766! The US got it's in 1966, 200 years later.

I realise that I sound like a ridiculous patriot here, and I don't mean to offend anybody. It's just that while My Country might be lacking in many areas where other nations excel, there is one thing nobody can beat us in: Freedom, Civil Liberties, and a the most solid defence against a corrupt government in history.

Re:Congress shall make no law...

[corbettw]

Well, I've never heard of a government being overthrown via a written document.

Magna Carta.

And why did King John sign the Magna Carta, again? Oh that's right, because if he didn't, all the nobles of England were threatening a civil war. So what was your point again?

Furthermore

[metamatic]

All the statistics showed that excluding 9/11, the various power grabs were followed by more people being killed by terrorists. So they stopped putting out the annual report...

Re:Congress shall make no law...

[monkeydo]

When confronted with the falsity of your statements, you resort to pedantry. You backed up your pedantry by citing the wrong law. The one you should have cited is here. Had you looked at the right law, you'd see that this law defers to Executive Order 12356 as to what is classified information. And Executive Order 12356 discusses declassification authority and states that material can be declassified by the person who classified it, or "the originator's successor; a supervisory official of either; or officials delegated such authority in writing." You think that the President might fall under the umbrella of "a supervisory official" of every single person in the Executive Branch? I do. So, no, the President doesn't have to put anything in writing or issue an executive order to declassify classified material. He can just do it.

Re:Congress shall make no law...

[gkhan1]

Yes we have very (very!) high taxes. We also have free healthcare and schooling, up to college level. Yes companies pay alot to the government in employment-fees. We also have a national pension system that wont collapse. We are also almost completly unionized, which means that you wont get fired for being sick three days in five months. We take care of the poorest in society, and it comes at a cost. The richer people pay it. I'm part of the richer people, and I'm fine with paying it. It just.

We have a radically different view here in Sweden on welfare, and we pay for it. I'm fine with paying higher taxes, as long as the government will take care of me,and my fellow citizens, when we need it. It's called a social contract. That makes us no less free (it's not communism), and alot more safe. I can understand the economic argument for lowering taxes, but what I don't get is how having a strong welfare state makes the government bad.