Michael Barone has been busily posting. In “Official Secrets,” he dissects yesterday’s editorial in the Washington Post on the Espionage Act and the possibility that the New York Times may be criminally prosecuted. Suffice it to say that the Post gets the worst of it. Here is Barone’s conclusion; he begins by quoting the Post:
“It is a dangerous road.” I agree. But of course it was the press, led by the editorialists of the New York Times, that bayed loudly for investigation and prosecution of government officials who disclosed the name of CIA operative Valerie Plame, even though it was far from clear that there was any violation of the statute in question, the Intelligence Identities Protection Act of 1982. The press, or large parts of it, is all for prosecution—even if it leads, as it did, to the jailing of then New York Times reporter Judith Miller—if such a prosecution will hurt the Bush administration. On that one, it was the press that was hurtling down “a dangerous road.”
The Times and Post reporters and editors who published the stories I referenced above are at the very least in the same legal position as Judith Miller; that is, they are witnesses to acts that are in violation of statute and may be jailed for contempt if they refuse to testify against those who illegally disclosed classified information. At worst, they stand in the same legal position as the two former AIPAC officials, who received the information and passed it along to others—and perhaps are in a worse position, since those two defendants argue, quite possibly plausibly, that they did not know that the information they received was classified, while the Times and Post editors clearly did have such knowledge.
There’s a strong argument against prosecuting the press on these grounds, that doing so is going down “a dangerous road.” But the press, which after all has knowledge of the Franklin and former AIPAC officials’ prosecutions and the fact that Congress has not repealed the statutes responsible for them, has been going down “a dangerous road,” too.
Barone’s piece fits nicely with the “Is the New York Times about to be indicted?” post in Armavirumque, which Scott links to below.