The Bush administration is exploring a radical measure to protect information it says is vital to national security: the criminal prosecution of reporters under the espionage laws, says the New York Times. That approach would signal a thorough revision of the informal rules of engagement that have governed the relationship between the press and the government for many decades. Leaking in Washington is commonplace and typically entails tolerable risks for government officials and, at worst, the possibility of subpoenas to journalists seeking the identities of sources.
There is no indication that a decision to begin such a prosecution has been made. Legal experts say existing laws may allow holding the press to account criminally. Should the administration pursue the matter, it could gain a tool that would thoroughly alter the balance of power between the government and the press. “The press can and should be held to account for publishing military secrets in wartime,” Gabriel Schoenfeld wrote in Commentary magazine last month. One example of the administration’s new approach is the FBI’s effort to reclaim classified documents in the files of the late columnist Jack Anderson, a move that legal experts say was surprising if not unheard of. “Under the law,” said an FGI spokesman, “no private person may possess classified documents that were illegally provided to them.” “Once you make the press the defendant rather than the leaker,” said David Rudenstine, dean of the Benjamin N. Cardozo School of Law in New York and a First Amendment scholar, “you really shut down the flow of information because the government will always know who the defendant is.”