Congress Considers Prosecutions of Reporters Over Leaked Information

By Annika McGinnis, McClatchy Newspapers

13 July 12

n response to New York Times stories that relied on leaks of sensitive national-security information, a House of Representatives panel on Wednesday discussed legislation that could allow journalists to be prosecuted for disclosing such information.

Army Col. Ken Allard testified to a House Judiciary subcommittee that the extent of national security leaks is “unprecedented” in American history. Recent examples include the Times’ investigations of President Barack Obama’s terrorist “kill list” and American cyberattacks on Iran.

According to Allard, such investigations threaten national security and serve only to promote the news media’s self-interest. He charged that such investigations were carefully planned to help Obama’s re-election chances and to advance the media’s own agenda. An example, he said, was New York Times reporter David Sanger’s new book, “Confront and Conceal,” which details American cyberattacks on Iranian nuclear facilities.

Allard testified that Sanger was “systematically penetrating the Obama White House as effectively as any foreign agent,” which he said exposed vital secrets to Iran and put the U.S. in danger of retaliation.

“Far from advancing our rights as citizens – as a free press should – Mr. Sanger deliberately placed his country at significant risk for his own profit,” Allard charged.

Leaks of this nature expose details of crucial security operations, including the people involved in them, lawyer Kenneth L. Wainstein testified. He said they also informed the nation’s adversaries of U.S. methods, compromised the well-being of government personnel and U.S. alliances, and undermined the integrity of government services.

Nathan Sales, a law assistant professor at George Mason University, also stressed the importance of protecting national-security information.

“If it leaks, we can’t wiretap Osama bin Laden,” he said. “If it leaks, sources get caught, incriminated and killed.”

As the committee considers revising legislation that would prosecute leakers, Rep. Trey Gowdy, R-S.C., also urged criminal prosecutions of reporters.

“Why not send a subpoena to the reporter?” Gowdy said. “Put them in front of a grand jury. You either answer a question or you’re going to be held in contempt and go to jail, which is what I thought all reporters aspire to anyway.”

Other committee members said the First Amendment protected the media’s right to publish such information. They also talked about the media’s watchdog role, helping to hold the government accountable for illegal actions.

Rep. James Sensenbrenner, R-Wis., the chairman of the subcommittee, said whistleblower laws enabled holding the government accountable without going to the media, however. Such laws allow citizens to go directly to the federal government about instances of government wrongdoing.

The committee won’t have time in this session of Congress to revise the laws that define actions that are subject to prosecution for those involved in disseminating leaked information, Sensenbrenner said. In the next session, however, he said, the committee aims to revamp the Espionage Act, a 1917 law that sets up methods for prosecuting people who divulge sensitive information.

Sensenbrenner said when the legislation was revamped it must address the over-classification of government information and create a standard of liability for those who leak classified information to someone without a security clearance. He said the potential to prosecute reporters also must be considered.

“We’ve got the constitutional issue about the First Amendment protecting the freedom of the press, but there has to be a balance,” he said. “I feel that there has to be some self-restraint on the part of the press, saying we have this information but it would be tremendously damaging to our nation if it was published.”

Lucy Dalglish, the executive director of the Reporters Committee for Freedom of the Press, said in an email after the hearing that reporters took care to consider national security concerns when they were writing stories.

"I’m not in a position to know what the threat might be from those particular stories,” she said of the stories discussed in the hearing. “I do know, however, that the Times and other experienced reporters do their best to minimize harm to the public.”

She added: "There is no need for a new law, and certainly not a new law that was rushed through Congress without careful consideration of the First Amendment interests of the media and other members of the public who share national security information."

A representative for the Times couldn’t be reached for comment Wednesday.