Adler and Berry on Prosecuting Reporters Mike Rappaport

Jonathan Adler, who I greatly respect, has this article in the NRO (with Michael Berry) arguing that the Espionage Act should not be applied to journalists, in particular to Dana Priest who disclosed to the public the existence of the secret prisons in foreign countries.

The article makes several points, but the core argument is that the reporting of information like the existence of secret prisons cannot, consistent with freedom of speech, be made a crime, even if it is a crime for a government employee to disclose it.  I am not sure what to make of this argument.  Happily, it is not crucial to decide on the matter, because I am sure that the government should be able to issue a subpoena to Dana Priest and imprison her if she does not disclose her source.  That, I think, addresses the main practical question of how to stop the leaks.  But what about the more theoretical question?

One basic question here is whether there are special rules for journalists.  If it is illegal for a government employee to disclose national security information, then why is it not always illegal for a reporter who obtains it from that employee to report it?  Is it that the knowing receipt of stolen property is somehow not as bad as the theft of the property?  Or is it that the reporter’s role, in publishing information, is providing a public service in a way that the government employee is not?  Does the answer depend on whether the information is merely embarrassing to the government or an authentic state secret?

These are difficult questions.  Adler and Berry seem to suggest that the disclosure of the secret prisons is not central enough to national security — that it is more of an embarrassment — to justify making its disclosure a crime.  They analogize it to ” a newspaper that obtained classified information purporting to demonstratethat President Clinton s decision to bomb a pharmaceutical plant inSudan was driven by his desire to distract attention from the Lewinskyaffair.”  The difference between the two, however, is that the Clinton case would have been embarrassing because it disclosed wrongdoing, whereas the secret prisons, despite the left’s allegations, would be embarrassing because we had agreed with foreign countries to keep the prisons secret.  Of course, Adler and Berry may be right in their implicit suggestion that it would be difficult to administer a legal rule based on this distinction.

In the end, I would hope there was a standard that could identify cases where a reporter’s publishing of a story could be prosecuted, but this may be difficult.  Thankfully, we can plug the leaks by asking  Priest who leaked the information.  Unfortunately, it doesn’t seem like anyone is asking her this question.