Prosecution of Journalists—New York Times

Apparently, it isn’t just the Justice Department that would like to prosecute journalists for disclosing classified information. Republican Representative Peter King from New York is calling on Attorney General Alberto Gonzales “to begin a criminal investigation of the New York Times for publishing a report on a secret government program begun after Sept. 11 to monitor banking transactions for terrorist links.”^[1] Last year, Rep. King also said that “members of the news media should ‘be shot’ for their coverage after government sources exposed the identity of a covert CIA agent,” so perhaps his rhetoric is not unexpected.

The program in question involves the CIA and the Treasury Department, and shortly after 9/11, “Treasury officials obtained access to an extensive international financial data base—the Society for Worldwide Interbank Financial Telecommunication, or Swift.”^[2] Swift is based in Belgium and it “handles financial message traffic from thousands of financial institutions in more than 200 countries.”^[3] The rationale for tapping into the network is roughly the same used to rationalize the NSA’s program: “If people are sending money to help al-Qaida, we want to know about it.”^[4] Under the program, “U.S. counterterrorism analysts could query Swift to look for information on activities by suspected terrorists as part of specific terrorism investigations … by plugging in a name or names.”^[5] The New York Times, the LA Times, and the Wall Street Journal, were the first news organizations to report on the existence of the program, which they did on Thursday night.^[6] The Bush Administration tried to convince the newspapers not to run their stories.^[7]

Which brings us back to Rep. King, who seems to have prosecutorial zeal only for the New York Times. Saying that “[t]here is a war going on,” he argued that disclosing the information “puts American lives at risk and they did it for no good reason. The Times thinks they are above the law. Nobody elected the New York Times to anything. No amendment is absolute, including the first amendment.”^[8] Granted, it is true that American’s freedom of speech has been abridged by various Supreme Court decisions, but Rep. King’s statement echoes other rationales for the curbing of civil liberties: Senator John Cornyn of Texas stated a few months ago “None of your civil liberties matter much after you’re dead.”^[9] And during General Michael Hayden’s CIA confirmation hearings, Senator Pat Roberts of Kansas stated “I am a strong supporter of the First Amendment, the Fourth Amendment and civil liberties. But you have no civil liberties if you are dead.”^[10]

As for the LA Times and the WSJ, Rep. King said “he wants to ‘see all the facts’ before calling for an investigation” of those newspapers.^[11]

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[1] J. Jioni Palmer, King Seeks Federal Probe of NY Times, Newsday, Jun. 26, 2006.
[2] Jeannine, Aversa, Monitoring Bank Transactions Called “Government at Its Best”, AP (via Seattle Times), Jun. 23, 2006.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Palmer, supra note 1.
[9] Jonathan Allen, Civil Liberties Don’t Matter Much “After You’re Dead.” Cornyn Says on Spy Case, The Hill, Dec. 20, 2005.
[10] Hearing on the Nomination of Gen. Michael Hayden to be Director of the CIA, Wash. Post, May 18, 2006.
[11] Palmer, supra note 1.