By Peter Scheer
Our Attorney General, Alberto Gonzales, has stated publicly that he believes journalists may be prosecuted under federal espionage laws for publishing articles based on leaks of classified information. The comments, in an ABC News interview, were directed at the New York Times (for its disclosures about NSA’s warrantless eavesdropping) and the Washington Post (for stories about foreign countries’ assistance in the CIA’s use of “extraordinary rendition”).
He didn’t intend it, but the AG’s threats may have given reporters at the Times and Post—and at the Los Angeles Times, the San Francisco Chronicle and other news organizations looking down the barrel of federal leak investigations—a powerful defense to the inevitable demands, backed by grand jury subpoenas, that they identify their confidential sources: They can “take the Fifth.”
For the past two years the journalism community has been fixated on the shortcomings of the First Amendment as a source of protection for reporters’ confidential sources. In the federal arena, where state Shield Laws are of no help, one federal appellate court after another has rejected assertions of a “reporter’s privilege,” grounded in the First Amendment, to refuse to testify about anonymous sources.
But if the First Amendment can no longer be counted on to keep reporters out of jail, invoking the Fifth Amendment privilege—refusing to disclose the name of a confidential source because doing so could be self-incriminating—may succeed in protecting both the source and the reporter.
Until Gonzales started musing publicly about news organizations’ criminal exposure for leaks of classified information, the risk of an indictment of reporters and their employers might have been seen as too remote to permit a reporter to refuse to testify about sources. The espionage statutes have never been used against journalists, and for good reason: such prosecutions would be tantamount to adoption of an Official Secrets Act, something that Congress, in modern times, has always been loathe to do.
But times have changed. The risk of prosecution is not remote anymore.
The Fifth Amendment has gotten a bad rep because of its long association with organized criminals and corrupt public officials–and because of the common perception that, by pleading the Fifth, one is implicitly admitting guilt. In fact, the Fifth amendment does not so much imply guilt as it does a refusal to be of assistance to the government in meeting its burden of proving guilt. Why offer to help a prosecutor who wants to put you in jail?
But even if the implication of guilt is unavoidable, one has to ask, guilty of what? In the case of subpoenas to James Risen and Eric Lichtblau, the Times’ reporters who wrote the NSA wiretapping stories, relying on the Fifth Amendment to refuse to testify would imply that they are “guilty” of:
- obtaining evidence of a domestic surveillance program
- that was authorized by the President
- yet conducted without the judicial oversight required by applicable federal law
- and then reporting this information in the pages of a national newspaper.
If that is an admission of guilt, then Risen and Lichtblau should wear it as a badge of honor. By invoking the Fifth Amendment, they would be admitting that they did their jobs.
Of course, the Fifth Amendment will be of no avail if the government, in order to preserve the prosecution of reporters’ confidential sources, is willing to forgo prosecuting the reporters. In other words, prosecutors have the option of granting formal immunity to reporters. Once immunized, reporters may not continue–on Fifth Amendment grounds–to refuse to testify about their sources since their risk of being prosecuted will have been removed.
Nonetheless, getting immunity in the current circumstances is a victory in itself. In the face of Gonzales’ bluster about indicting the press under the espionage laws, the Justice Department would not be thrilled about having to immunize the press. And obtaining immunity would leave reporters no worse off with respect to protecting confidential sources under the First Amendment or any other legal theory available. Those arguments would be unaffected by a grant of immunity.
In the coming months, as the New York Times, the Washington Post and the San Francisco Chronicle all face down federal, criminal leak investigations, they should be thankful for Gonzales’ saber-rattling. Let’s hope he makes more threats to prosecute the media.
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Disagree? Have something to add? Send us a comment. We’ll publish the best ones.–PES