June 26, 2006 | National Review Online
Lasering in on Leaks
Anger over the leaking of national-defense information by the media may have hit critical mass with the exposure, by the New York Times and other newspapers, of the Terrorist Finance Tracking Program. Since this highly effective counterterrorism tool was compromised last Friday, President Bush and Treasury Secretary Snow have spoken out forcefully in protest, and many commentators — including here at National Review Online — have argued that this rhetoric must be matched by strong corrective action.
Rep. King is right … in theory. There is a law under which a case against the press could be brought: the Espionage Act of 1917. The pertinent provision is codified at Section 793(e) of the federal penal code. I wrote about it here, in connection with the Washington Post's compromise of overseas terrorist detentions.
We must, however, confront a hard reality. No one gets a medal for being right. Being right doesn't necessarily carry the day where the law is concerned. Getting five votes in the Supreme Court does. And there simply are not five votes on the current Court in favor of an interpretation of the Espionage Act that would hold journalists liable. (Caveat: As Gabriel Schoenfeld compellingly argues in Commentary, a prosecution of the Times for the leak of the NSA's Terrorist Surveillance Program is more promising because a different, narrower statute, Section 798, applies to wrongful disclosures of signals intelligence.)
Some argue that the Supreme Court's decision in the famous Pentagon Papers case — presciently entitled New York Times Co. v. United States (1971)—stands for the proposition that, while the press may not be subjected to prior restraints against publication, they are vulnerable to subsequent prosecution if what they publish violates the law. This assertion, though, is built on a very thin reed. Strictly speaking, Pentagon Papers is a prior-restraint case—the issue of subsequent prosecution was simply not before the Court.
Concededly, there is dicta supporting the notion of prosecution. But there is also dicta cutting decidedly in the other direction — specifically, the opinion of Justice William O. Douglas, joined by Justice Hugo Black, which would essentially insulate the press, regardless of how atrocious what it publishes may be.
But okay, let's assume for argument's sake that Pentagon Papers is strong authority supporting indictment of the press. So what? Two sad but almost certainly insuperable obstacles remain to be faced.
The first is simply this: When it comes to the pieties of liberal elites and civil-liberties extremists, the current Supreme Court cares nothing for precedent. In our culture wars, precedent counts mainly as a rationalization for not reversing Roe v. Wade. To the contrary, when bourgeois sensibilities are at issue, the Supreme Court regularly hews to contemporary political correctness. So, for example, when it ruled in favor of special rights for homosexuals in Romer v. Evans (1996), the Court ignored a flatly contradictory precedent from only a decade before, Bowers v. Hardwick (1986). And only last year, when it held that the death penalty could not be applied to a juvenile in Roper v. Simmons, it blithely explained that it had “evolved” past its antithetical decision only 15 years earlier in Stanford v. Kentucky.
Secondly, free-speech cases often bring out the worst of the Court's p.c. proclivities, at least from a public-safety standpoint. Witness Ashcroft v. Free Speech Coalition (2002). There, the Court voided criminal enforcement of the 1996 Child Porn Protection Act on the remarkable theory that regulating smut on the Internet might somehow lead to banning performances of Romeo and Juliet.
That decision was written by Justice Anthony Kennedy. He also wrote for the majority in Romer. And in Roper. In fact, he has joined the liberal block of the Court (Justices Stevens, Souter, Ginsburg and Breyer) to form majorities in several other critical, closely divided cases. (For another example, see Rasul v. Bush (2004), holding that alien enemy combatants detained by the American military in Guantanamo Bay, Cuba, in wartime, had a statutory right to challenge their detention in the U.S. courts.)
Bottom line: You are engaged in wishful thinking if you believe you can prevail on an Espionage Act prosecution against the press in this Supreme Court. I wouldn't be confident of the outcome even if I thought I had a shot at Justice Kennedy's vote—but that's academic, because there is a rich basis for concluding that I don't.
WINNING IS ABOUT THE LEAKS, NOT THE REPORTERS
Why is all this important? Because if you start down this path, it is important to win. There are no moral victories. There is no comforting pat on the back for being right or defending principle. In this matter, there is a winner and a loser.
Imagine the media as the winner of a long, bitterly contentious struggle that ends in the Supreme Court. They will have succeeded in turning themselves into martyred heroes. We may, quite justifiably, view the Times and its allies in this cause as aiders and abettors of our wartime enemy. But the history — which they, primarily, will write — will portray them as Defenders of the Constitution.
More consequentially, were the press to win such a battle, it would only encourage more leaking. Now their recklessness (or worse) would bear a judicial imprimatur. Think of it as a Pulitzer Prize … but one backed by the prestige of the Supreme Court rather than the dwindling influence of journalism's majordomos.
Let's remember: The goal here is to stop the leaking. It is not to mount a trophy journalist on a prosecutor's me-wall. From that practical perspective, making the reporters and their newspaper the targets of prosecution is a double failure. Not only do you probably lose the case in the long run; you also fail to get to the root of the scandal.
Face it: Internal government investigations into leaks go nowhere. The government is too big. Many people are in the loop even on sensitive information, so it is often impossible to pinpoint who the leaker is. When investigators occasionally manage to narrow the suspects down, the leaker typically lies about what he has done (as one would expect in the first place from someone who has betrayed his oath by leaking).
There is only one real way to identify government officials who disclose classified information. You have to get it directly from the journalist who spoke to them.
But if, as the King approach posits, the journalist were made the target of a criminal investigation, he would have a Fifth Amendment privilege to remain silent. That is, by clinging to the slim possibility of successfully prosecuting the journalist, investigators would render legally unavailable the only realistic witness to the public official's illegal leaking. So in the end, no one would get prosecuted. And the leaks would go merrily on — undeterred, if not emboldened.
There is but a single viable strategy here. The focus of the prosecution must be the public officials who leaked, not the journalists who published. The journalists must be given immunity from prosecution. That would extinguish their privilege against self-incrimination, meaning they could be ordered to reveal their sources to a federal grand jury. There is no legal privilege to refuse. We saw that in the Valerie Plame investigation, in which a prosecutor moved aggressively against a leak that pales beside the gravity of what we are discussing.
If the immunized reporters declined an order to testify, they could be jailed for up to 18 months for contempt-of-court. Jail is an unpleasant place. Recall that it took Judith Miller only a few months there to rethink her obstructionist stance in the Plame case. And the mere specter of imprisonment inspired Matthew Cooper to surrender his source on the verge of a contempt citation.
Chances are that the journalists who have exposed leaked national-security information over the past several months do not want to spend 18 months in prison. If they were put in that position, we would very likely learn who did the leaking. Those officials could then be indicted. A prosecution against government officials does not entail the same free-speech complications.
On the other hand, even if the subpoenaed reporters flouted the law by never giving up their sources — even if they took the incredibly arrogant position that their secrets take precedence over the nation's secrets — 18 months' imprisonment is a powerful disincentive. Fewer reporters would run the risk. Fewer would-be government leakers would bank on a reporter's perseverance. The leaks would dry up in a hurry.
That ought to be the goal here.
— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.