Who Needs a Free Press?

The press is anemic. The press doesn't do a good enough job of investigating any more. The press is biased.

The press is a lot of things, but they're also vital to our nation. They act as a check on governmental power as no branch OF that government ever could.

And so, while we may not like the fact that leaks are a fact of life, this article should scare any good American citizen.

The Bush Administration is considering charging reporters and their news outlets with treason for publishing leaks of classified information.

Think for a moment what a chilling effect this would have on the press in this country. The leak of classified information may not be a good thing, but it does keep the country honest. Imagine if we'd had such a policy when President Nixon was engaged in the Watergate scandal. Being the President, he had the power to classify documents. He could simply have classified all information relating to his illegal dealings and then simply jailed Woodward and Bernstein. More likely, if he'd jailed a few of their contemporaries on other charges, the two would have decided against pursuing such a potentially prosecutorially treasonous story.

In today's world, we're constantly reminded that we're "at war", and during war time, treason can be punishable by death. Do you think that even reporters who are willing to risk jail time to protect a source would be willing to publish the stories of Federal malfeasance if that story could get them executed?

If you're one of the few remaining tenacious supporters of this President, against all logic and reason, then consider the previous Administration. Suppose President Clinton had had this power and had decided to classify any and all information regarding his dealings with Ms. Monica Lewinsky and any other women with whom he may have had affairs. Should it really have been that easy for him to sweep the whole story under the rug? Do we really want the President to have to power to break the law and then keep it quiet under threat of a conviction under the treason laws?

This is serious business. The NSA wire tapping program seems to be generally considered illegal by most constitutional scholars whose opinions I've read. Certainly secret torture prisons and extraordinary rendition run counter to our ideals as a country and as a people. And while I think the leak of Valerie Plame's identity (and subsequent destruction of her career as a CIA agent along with the outing of her cover company and the identity of every other agent using the same cover) is despicable and wantonly self serving (and not in the same "public interest" as some of the other examples listed in this post), I would never suggest that Robert Novak be put to death for leaking classified information during war time.

And who is to decide, under this new guideline, which cases of leaking are sufficient to warrant prosecution? Just the ones the President doesn't like (so if he or his Administration choose to leak classified information that helps them, no one is prosecuted, but if someone leaks information about his wrong doing, that person is going to be prosecuted)? And does the reporter have to KNOW that the information is classified? What if someone leaks information and the reporter is not aware that the information is classified (merely not commonly known), for instance in the example with Clinton classifying the details of his dalliances, isn't knowledge of the classification status of an item a necessary prerequisite for prosecution under the treason statute?

And if so, how do you prove that the reporter knew of the classified status of the information they reported? And won't we set up a situation where we further incent reporters to go to jail rather than give up their sources? After all, without a source to tell what was discussed, the reporter can simply say the source never mentioned that the information was legally classified, and why would that reporter choose to give up the name of that source and risk prosecution under a more onerous charge, when by keeping the name secret, there's no proof that the reporter was knowingly guilty of treason? Certainly if the only thing keeping me from being prosecuted for war-time treason and possibly sent to life in prison or death was the comparatively short time in prison for not revealing my source, you're not going to pry that out of me with the Jaws of Life[tm].

Leaks of classified information are generally bad, and they can harm our national security. But they can also be essential checks on government gone bad. We need them. We can't be putting reporters up on trial for treason for deeming as important to the public interest a piece of already-leaked information (already leaked in the sense that by the time the reporter (generally with no security clearance) has the info, it's no longer secure).

Think about it. We may not have the press we wish we had, but is the solution really to do away with the last vestiges of investigative freedom they might choose to express?

Liam.