Reporters Could be Prosecuted Under Espionage Law, DoJ Says

The espionage statutes concerning classified information could be employed against journalists who publish such information without authorization, a Justice Department official told Congress recently, elaborating on remarks made last year by Attorney General Gonzales.

Those statutes, “on their face, do not provide an exemption for any particular profession or class of persons, including journalists,” wrote Matthew W. Friedrich, DoJ Criminal Division Chief of Staff, in a March 2007 response to questions (pdf) from the Senate Judiciary Committee that has been newly published.

He stressed that “the Justice Department’s primary focus has been and will continue to be investigating and prosecuting leakers, not members of the press.”

But he added that “it would be inappropriate to comment on whether the Department is now considering the prosecution of journalists for publishing classified information.”

The congressional correspondence touched on several issues that are new or rarely addressed.

“What about conduct that is incidental to a journalist publishing a story,” asked Senator Pat Leahy, “such as retaining classified documents that may be used later in a story, or communicating such information to a publisher or other reporters in the course of writing a story?”

The legality of these activities would “depend on the particular facts and circumstances,” Mr. Friedrich replied. “It would be inappropriate to offer an advisory opinion about the legality of such conduct.”

Could improper or unnecessary classification be used as a defense against prosecution? “We are aware of no case that affirmatively holds that such a defense is available to defendants in Espionage Act cases,” Mr. Friedrich wrote. And he cited one Ninth Circuit decision that said that “under section 798 [one of the espionage statutes], the propriety of the classification is irrelevant.”

He disclosed that “over the past five years, the Department has approved search warrants for materials related to the news gathering process… in four cases.” These were not specified.

Mr. Friedrich’s answers to questions for the record from Senators Specter and Leahy, transmitted March 1, 2007, are posted here.

They were recently published in the record of a June 6, 2006 Senate Judiciary Committee hearing entitled “Examining DOJ’s Investigation of Journalists Who Publish Classified Information: Lessons from the Jack Anderson Case.”

No Responses to “Reporters Could be Prosecuted Under Espionage Law, DoJ Says”

  1. Sims August 2, 2007 at 10:09 AM #

    The media helped to cut their own necks. The media helped this administration to get in office and now they may pay the price with the loss of their own freedom. What goes around comes around.

  2. Matthew Saroff August 3, 2007 at 12:23 PM #

    This admin wants a UK-style Official Secrets Act.

    This is a bad thing. The Official Secrets Act is most often used to suppress embarrassing information, not sensitive information.

  3. John August 3, 2007 at 1:37 PM #

    I find the DoJ’s contention strange. It ignores the hierarchy of law, with the Constitution at the top. The First Amendment prohibits any law restricting freedom of the press.

    So yes, the Espionage Act does not exempt the press. It doesn’t need to since the press is exempted by the 1st.

    Friedrich has got to be kidding.

  4. Sherri Kasow August 3, 2007 at 6:14 PM #

    “Those statutes, on their face, do not provide an exemption for any particular profession or class of persons, including journalists,” wrote Matthew W. Friedrich, DoJ Criminal Division Chief of Staff, in a March 2007 response to questions from the Senate Judiciary Committee that has been newly published.”

    Unless your name is Bush, Cheney, Rove, Libby? I am still devastated the Administration had the audacity to out a CIA agent and walk away from it with a smirk on their faces. I need a shower.

  5. LarryD August 7, 2007 at 5:40 PM #

    The Supreme Court has consistently held that the First Amendment prohibits preventing publication.

    In the Pentagon Papers case, several liberal members of the court held in their written opinions, that news organizations could be prosecuted after they had published.

    Otherwise they could never be charged with Libel, eh. By the way, the press has no First Amendment rights that you don’t have. They get no special privileges or rights just because they work for a company that buys ink by the drum.

    Sherri, it was Richard Armitage who outed Plame.

  6. Stephen Craft August 8, 2007 at 9:11 AM #

    The DoJ has the right to uphold the law as it is stated…doing their job in other words. The underlying issue here is a matter of securing certain information from being accessed by the wrong people via espionage or the media. Maybe we should all step back and take a look at how insecure our national security can be with ‘confidential’ documents. The media has a right to access information that is accessible so…why not declare such information ‘secret’ or ‘top secret’ and further secure the value of such information from the wrong parties. The real issue here sheds light on the cracks within our nation’s means to actually secure information.