Attorney General Gonzales says that we may soon begin prosecuting journalists for revealing classified material. The vehicle is the Espionage Act of 1917, says the article, although in fact that law no longer exists as such, having undergone major revisions -- an oddly sloppy bit of writing. I wonder if it is intended to elide the laws which do exist today (18 USC 793 and 794) with the disreputable history of the actual Espionage Act, in order to color the debate about this.
That tendency to "color debate" through selective reporting and releases of secret information is, of course, the reason we've come to the point of considering prosecutions. The government has long winked at this sort of thing, recognizing that the American people are suspicious of attempts to crack down on the free press. Yet the tendentious reporting on GWOT efforts since 9/11, particularly in Iraq, has worn out the patience of many Americans. It appears that many journalists are willing to print anything that will help them color the debate to their desired shade, without regard for the damage to our national interest or the number of our fighting men who might be killed over it.
That said, I'm against these prosecutions, and won't -- should I be called to serve on a jury, which of course I shall not be -- agree to convict any journalist on these sections of the USC. I agree that we need to be cracking down on this business, but we need to be cracking down on those doing the leaks, not those doing the reporting.
There are two reasons for this.
The minor reason is that the Attorney General's reading of the law would make it a capital crime to publish information about troop movements.
Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates, or attempts to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the Armed Forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for any term of years or for life.Now, we all know that the enemy reads the newspapers. You could argue that it's not your intent that they should read what you write, but you know perfectly well that they'll read it. An application of this law to journalists would not simply target bad writing about the war -- which is the problem -- but almost all writing about it.
This includes the very best writing: the kind that supports the fighting men. Consider Michael Yon's calls of alarm from Afghanistan, which criticize government policy from the point of view of a man who desperately wants us to succeed. A lot of what he's written in the past concerns the "condition" or "disposition" of US forces -- as a term of law, that could mean his piece Gates of Fire, one of the finest pieces of war journalism to come out of Iraq. Yet it confirmed, if the enemy wished to know it, LTC Kurilla's injuries.
That's a capital crime, if Gonzales' reading of the law is correct.
Is it? We as citizens are entitled to form our own readings of the law -- indeed, it is a duty, and is itself a part of the lawful process. That's why we have juries in the first place: to determine whether the government is fairly applying the rule of law, and to prevent the law's misuse.
This brings us to the second reason. Gonzales' defense of his potential prosecutions is incoherent:
Yesterday, Gonzales said, "I understand very much the role that the press plays in our society, the protection under the First Amendment we want to promote and respect . . . 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."Speaking as an American citizen with an interest in preserving or recapturing the rights endowed to free men by their Creator and secured by the Founders, that is not correct. If the free exercise of the press is a Constitutional right, then that exercise can't be criminal activity. It can be immoral, destructive, wasteful, hurtful, and bad, but it can't be against the law. The First Amendment doesn't say that you have a right to do things, unless they're illegal. It says Congress lacks the authority to make laws about those things at all.
It's a pre-emptive strike.
The kind of speech that the Founders most wanted to protect was political speech -- which includes the right, however deplorable the practice, to color the debate through bad reporting or slanted terms. Journalists can say whatever they want. Even if I think they should be beaten with sticks for it.
Not buying it? Consider this post at Euphoric Reality, called "Terrorism in South Texas." Now, I find the style of journalism here to be hideous -- consider the quick slide from "dirty bombs" to "IEDs," though "IEDs" being set off in America should be enough to convice you that it's serious; or consider the music that they play when they show the patch jacket. I don't like journalism that pitches at emotive responses instead of giving you the facts.
Nevertheless, I think this report is the "flip side" of the NSA report. Yet it's really only different from the NSA report in its intent. This intends to shore up a hole in US security; the NSA report intended to create one. Otherwise, they are not distinguishable.
The journalists in this case are guilty of a crime under Gonzales' reading of 18 USC 793, punishable by up to ten years in prison. They transmit the contents of classified US government documents relating to homeland security:
Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.... Shall be fined under this title or imprisoned not more than ten years, or both.Why would they do this? They do it to show us that there's a problem that needs attention. That there is a problem the government won't tell you about. A serious problem.
That's what the First Amendment is for.
Go after the leakers. The press is free. It needs to do its job better, but it isn't the function of the prison system to make it do so. You'll have to wait on the market.
