- The Washington Times - Monday, June 26, 2006

The United States Congress is spineless.

Its spinelessness is most troublesome in matters of national security where its informing function is most urgent. Since Congress shows no signs of acquiring a vertebrate, it should facilitate the media in playing surrogate by fashioning a newsmen’s exception to the Federal Espionage Act.

At present, the act punishes the publication of leaked national defense information with “reason to believe [the information] could be used to the injury of the United States or to the advantage of any foreign nation.” The prohibition threatens to impair the media’s commendable sunshine on the Executive Branch’s national security operations where Congress has sported a “don’t ask, don’t tell” attitude. Congress lacks the political will to brandish either the power of the purse or the contempt power to compel President George W. Bush to disclose sufficient information about his intelligence collection, detention, rendition and interrogation practices to enable the Constitution’s checks and balances to function. Indeed, Congress knew more about the Manhattan Project to build atomic bombs in World War II than it knows about the ongoing National Security Agency spying on American citizens.

Neither the House nor the Senate has conducted probing hearings concerning the wars in Afghanistan or Iraq or the conflict against international terrorism. Both have permitted the Bush administration to invoke privilege to conceal patently innocuous information, for instance, whether the NSA has ever sought a warrant for a pen register pursuant to the Foreign Intelligence Surveillance Act (FISA). The media has been an irregular surrogate for Congress, which is better than no oversight whatsoever. Newspaper stories have revealed the maltreatment of detainees held abroad; the NSA’s warrantless surveillance program targeting American citizens on American soil; its massive collection of phone records; the CIA’s renditions and secret prisons in Eastern Europe; and, the Treasury Department’s employment of administrative subpoenas to gather records of international financial transfers.

In most cases, President Bush protested the disclosures under a national security banner. A grand jury has been summoned to consider indicting the New York Times under the Federal Espionage Act for revealing the NSA’s warrantless spying in contradiction to FISA. Attorney General Alberto Gonzales apparently reasoned that alerting al Qaeda to the NSA’s electronic surveillance program could have injured the United States because Osama bin Laden might previously have been convinced that President Bush was playing by Queensbury rules. Although the president insisted that the New York Times had crippled the effectiveness of the program, he has continued the NSA’s warrantless spying on American citizens undiminished.

Congress should end the Sword of Damocles over the news media for shoring up congressional oversight sloth and neglect. The Federal Espionage Act forbids the publication of national defense information that routinely appears on newspaper front pages. The information need not be classified. Neither need it be proven that the information was in fact used to injure the United States. That possibility is enough to convict. The criminal prohibition also does not require proof that the publisher intended national security harm.

The Executive Branch has historically desisted from prosecuting the media as opposed to the individual who leaked in violation of the Espionage Act. In United States v. Morison, for instance, a military intelligence employee, Samuel Loring Morison, who made an unauthorized transmittal of satellite-secured photographs to Jane’s Fighting Ships was prosecuted, but the publisher was not. Attorney General Gonzales, however, has signaled an end to such prosecutorial lenity. Last week’s headline stories about President Bush’s invocation of the International Economic Emergencies Act to trace international financial flows without warrants may eventuate in grand jury investigations or indictments of major newspapers. Vice President Richard Cheney has already alleged that publication of the information assisted al Qaeda, which would make the publications indictable offenses by injuring the United States.

In an ideal world, the president would not indiscriminately invoke national security to frustrate political and legal accountability. Congress would exercise muscular oversight. And government transparency indispensable to enlightened self-government would not depend on unelected members of the media publishing classified or national defense information.

But the ideal is sheer fantasy. Government of the people, by the people, for the people would soon wither if the press were deterred from publishing information that the president claimed might weaken national security. Perpetually secret government and democracy are incompatible. To foreclose that danger, Congress should amend the Espionage Act to exclude media disclosures, but not authorize media treason or treachery. The law should still forbid publications intended and likely to cause direct, immediate, grave and irreparable injury to the national security of the United States, for example, revealing the location of an NSA wiretap on an undersea cable.

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

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