Classified Information—Criminal Prosecution of Journalists, Updated

Nearly three weeks ago, we mentioned a story in the New York Times that there were rumors among journalists that leak investigations would perhaps target journalists. That eventuality has become more and more likely, and there are three, completely unrelated, stories that stem from this idea: the recent statements of Attorney General Alberto Gonzales on the Sunday-morning new shows, the grand jury investigation into Barry Bonds and his alleged steroid use, and a potential Supreme Court case involving Wen Ho Lee.

Yesterday morning, Atty. Gen. Gonzales said that “he thinks journalists can be prosecuted for publishing classified information,” and that “the government will not hesitate to track telephone calls made by reporters as part of a criminal leak investigation, but officials would not do so routinely or randomly.”^[1] Acknowledging that the First Amendment exists, Atty. Gen. Gonzales nonetheless stated that “it can’t be the case that [the First Amendment right of a free press] trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity.”^[2] Look at that statement again. Atty. Gen. Gonzales is saying that an as-yet nonexistent right for the public to see criminal prosecutions trumps the First Amendment.

The second sign that reporters can be targeted for disclosing classified information comes in the grand jury investigation into Barry Bonds’ alleged perjury in the BALCO case. Two San Francisco Chronicle reporters have been subpoenaed to testify in that case because they wrote articles and a book titled Game of Shadows that were based in part on leaked grand jury testimony.^[3] Atty. Gen. Gonzales defended those subpoenas to the Houston Chronicle saying that the government “know[s] the importance and appreciate[s] and respect[s] the importance of the press to do its job, … but we also can’t have a situation where someone who does a terrible crime can’t be prosecuted because of information that’s in the hands of the reporter.”^[4] He also stressed the importance of keeping the details of grand jury investigations secret,^[5] which is admittedly an exceptionally important policy.^[6] Nonetheless, journalists have been targeted only about 14 or 15 times in the last 14 years, so the precedence for investigating journalists is shaky.

The final story involves Wen Ho Lee, who was accused of being a spy when he worked at the Los Alamos National Laboratory.^[7] He eventually pleaded guilty to one count of downloading classified data, but he sued the Dept. of Energy, the Dept. of Justice, and the FBI in 1999, “saying they disclosed personal information about him to reporters.”^[8] He attempted to subpoena the reporters, who argued that the First Amendment shielded them from having to reveal their sources; they were found in contempt of court and were fined, which an appeals court upheld.^[9] They have petitioned for a writ of certiorari, which would put the question of whether reporters have a right to keep their sources secret before the Supreme Court.^[10] There are, however, indications that a settlement between the reporters and Mr. Lee is imminent, which would make the whole case moot, but there is an interesting twist to the case: the targets of Mr. Lee’s lawsuit—the DOE, the DOJ, and the FBI—are named as Respondents in the reporters’ petition.^[11] No doubt the government has more than one reason to want the Court of Appeals’ ruling upheld.

These three issues are sure to develop over the next few weeks and months, and it will be quite interesting to see what happens to journalists who report on secrets.

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[1] Gonzales Puts Security Above Free Press, Associated Press (via Kansas City Star), May 22, 2006.
[2] Adam Liptak, Gonzales Says Prosecutions of Journalists Are Possible, NY Times, May 22, 2006.
[3] See Zachary Coile, Subpoenas to Reporters Defended, Houston Chronicle, May 19, 2006; Elizabeth Fernandez et al., U.S. Orders Chronicle Reporters to Testify; Justice Dept. Subpoenas Pair Over BALCO Grand Jury Leak, San Francisco Chronicle, May 6, 2006.
[4] Coile, supra note 3.
[5] Id.
[6] See Fed. Rule Crim. Proc. 6.
[7] Joan Biskupic, Settlement Could Leave Issue of Reporter “Privilege” Unsettled, USA Today (via Yahoo!), May 22, 2006.
[8] Id.
[9] Id.
[10] Id.
[11] See Drogin v. Lee, Petition for Writ of Certiorari, last visited May 22, 2006.