Reporters Could Be Prosecuted Under Espionage Law, DOJ Says

REPORTERS COULD BE PROSECUTED UNDER ESPIONAGE LAW, DOJ SAYS

The espionage statutes concerning classified information could be
employed against journalists who publish such information without
authorization, a Justice Department official told Congress recently,
elaborating on remarks made last year by Attorney General Gonzales.

Those statutes, "on their face, do not provide an exemption for any
particular profession or class of persons, including journalists,"
wrote Matthew W. Friedrich, DoJ Criminal Division Chief of Staff, in a
March 2007 response to questions from the Senate Judiciary Committee
that has been newly published.

He stressed that "the Justice Department's primary focus has been and
will continue to be investigating and prosecuting leakers, not members
of the press."

But he added that "it would be inappropriate to comment on whether the
Department is now considering the prosecution of journalists for
publishing classified information."

The congressional correspondence touched on several issues that are new
or rarely addressed.

"What about conduct that is incidental to a journalist publishing a
story," asked Senator Pat Leahy, "such as retaining classified
documents that may be used later in a story, or communicating such
information to a publisher or other reporters in the course of writing
a story?"

The legality of these activities would "depend on the particular facts
and circumstances," Mr. Friedrich replied. "It would be inappropriate
to offer an advisory opinion about the legality of such conduct."

Could improper or unnecessary classification be used as a defense
against prosecution? "We are aware of no case that affirmatively holds
that such a defense is available to defendants in Espionage Act cases,"
Mr. Friedrich wrote. And he cited one Ninth Circuit decision that said
that "under section 798 [one of the espionage statutes], the propriety
of the classification is irrelevant."

He disclosed that "over the past five years, the Department has
approved search warrants for materials related to the news gathering
process... in four cases." These were not specified.

Mr. Friedrich's answers to questions for the record from Senators
Specter and Leahy, transmitted March 1, 2007, are posted here:

http://www.fas.org/irp/congress/2006_hr/journalists-qfr.pdf

They were recently published in the record of a June 6, 2006 Senate
Judiciary Committee hearing entitled "Examining DOJ's Investigation of
Journalists Who Publish Classified Information: Lessons from the Jack
Anderson Case":

http://www.fas.org/irp/congress/2006_hr/journalists.html