- The Washington Times - Monday, August 21, 2006

Press ability to publicize chronic government lawlessness or follies was crippled by U.S. District Judge T.S. Ellis III in United States v. Rosen and Weissman (Aug. 9, 2006). Against a First Amendment attack, the district judge sustained the Espionage Act’s prohibition of publishing to an authorized person nonpublic “information relating to the national defense” that might damage the United States or be useful to an enemy. The U.S. 4th Circuit of Appeals should reverse.

Suppose a newspaper had published the “Bay of Pigs” operation of President John F. Kennedy to overthrow Fidel Castro in the good faith belief that the invasion would shipwreck. Publication might have helped Mr. Castro crush the covert CIA caper. According to Judge Ellis, prosecuting the newspaper for exposing the folly would not have disturbed freedom of the press. His decision similarly opened the door for the Bush administration to prosecute the New York Times for disclosing the National Security Agency’s warrantless domestic surveillance program in contravention of the Foreign Intelligence Surveillance Act or The Washington Post for revealing secret detention centers of the CIA in Europe. Indeed, the Rosen and Weissman precedent makes the media vulnerable to grand jury investigations for every story that includes classified or other nonpublic information marginally bearing on national security in exposing government wrongdoing or wrongheadedness.

The Supreme Court has explained, however, that the function of a free press is to provide organized scrutiny of government. Sunshine is the best disinfectant. The history of secret government is a history of abuses.

The Federal Bureau of Investigation and Central Intelligence Agency for two decades illegally opened mail and seized international telegraphs — free from external scrutiny. The National Security Agency was illegally diverted during 1967-1973 from foreign intelligence collection to spying for law enforcement purposes. The CIA enlisted organized crime figures in amateurish attempts to assassinate Mr. Castro. President Richard M. Nixon’s ill-conceived White House “Plumbers” burglarized the offices of Daniel Ellsberg’s psychiatrist. Dr. Martin Luther King’s communications were tapped or bugged without warrants. Vietnam War protesters were targeted by the FBI for “black bag” jobs.

The recurring abuses born from secrecy do not mean government should operate in a fishbowl. The Constitution is not a suicide pact. Troop movements should be hidden from the enemy. Blueprints for manufacturing nuclear weapons should not be in the public domain.

But everything sensible in law and life is a matter of degree. The government should thus shoulder a heavy burden to demonstrate why secrecy is more urgent than sunshine. The reason, as James Madison, father of the Constitution, elaborated is that popular government without popular information or the means of acquiring it is a farce. And as Congress has increasingly defaulted on its constitutional obligation to oversee the executive branch, the need has increased for an unfettered press to expose and to deter presidential mischief.

The Espionage Act, as interpreted by Judge Ellis, wrongly makes freedom of the press invariably subservient to secret government and invites prosecutions to favor the president’s ideological friends and to punish his detractors.

Section 793(e) prohibits publication of closely held “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.” An inexhaustive list of information relating to the national defense would include assessments of the morale of U.S. troops in Iraq or Afghanistan; perceptions of the United States within the Arab world or Islamic nations; the prospective dependency of the United States on foreign imports of oil or natural gas; use of the U.S. military in Colombia to fight narco-terrorists in violation of the Intelligence Authorization Act; and maltreatment of detainees at Guantanamo Bay.

Indeed, publication of any classified information violates section 793(e) because classification pivots on whether disclosure might conceivably impair the national security or foreign relations of the United States. That makes it indistinguishable from the notorious Official Secrets Act in Great Britain, which has been regularly invoked by prime ministers to cover up government scandals.

The Espionage Act is unconstitutionally overbroad because it makes no distinction between genuine and contrived dangers despite the common knowledge that presidents instinctively exaggerate to justify secrecy. Nixon, for example, argued that publishing the Pentagon Papers would compromise the Vietnam War effort. President Bush argued that disclosing the NSA’s warrantless surveillance program would clue brainless international terrorists of the need for evasive tactics. Gen. Michael Hayden, CIA director, argued before the Senate Intelligence Committee that disclosing whether the NSA ever sought a warrant to install a pen register under the Foreign Intelligence Surveillance Act would endanger national security by revealing intelligence sources and methods.

Selective prosecution is encouraged by sweeping prohibitions like the Espionage Act. President Bush and his successors can be expected with the benefit of Rosen and Weissman to manipulate news coverage by investigating and prosecuting perceived media critics while turning a blind eye to defenders.

Independent of appellate review, Congress should amend the Espionage Act to strike a more prudent balance between national security and freedom of the press. As Judge Ellis urged, “The time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both [technological] changes, and contemporary views about the appropriate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct in the society of nations.”

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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