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Can Journalists Be Prosecuted for Receiving Classified Information?

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A federal judge ruled last week that private citizens could be prosecuted if the government decides they have received or disclosed information harmful to national security. We take a look at the significance of the ruling and its implication for investigative journalists. [includes rush transcript]

Last week a federal judge ruled private citizens could be prosecuted if the government decides they have received or disclosed information harmful to national security. The ruling comes in the case against two former employees of the American Israel Public Affairs Committee, or AIPAC. They’ve been charged with passing on classified information to the Israeli government.

  • Glenn Greenwald, constitutional law attorney specializing in presidential power and First Amendment issues. He is the author of the new book “How Would a Patriot Act?” and runs the blog Unclaimed Territory.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Our guest is Glenn Greenwald. His book is called How Would a Patriot Act? He also runs a blog called ” Unclaimed Territory.” Glenn, I wanted to ask you about another recent court ruling. Last week, a federal judge ruled private citizens can be prosecuted if the government decides they’ve received or disclosed information harmful to national security. The ruling comes in the case against two former employees of AIPAC, that’s American Israel Public Affairs Committee. They’ve been charged with passing on classified information to the Israeli government. Can you talk about the significance of the ruling and the implication for journalists?

GLENN GREENWALD: Sure. One of the things that I focus on in my book, actually, is that the Bush administration is in intent upon shutting down all methods of the American people learning about what the government is doing. And the two principal ways we’ve learned about what they’re doing are whistleblowers, who are under vigorous attack, and the media. The reason we know about warrantless eavesdropping or secret prisons in Eastern Europe or the use of torture is because the media has found out about it and reported it. And this administration is intent upon criminalizing investigative journalism, by creating a way to put journalists in prison, for the first time in a long, long time in our country, who report on what the government is doing in secret.

And this AIPAC case is the first time ever that the government has tried to use a law that was passed in 1917 called the Espionage Act to imprison, not government employees who pass on classified information, but private citizens who do nothing more than receive classified information. You had mentioned that the employee — the individuals had passed on the information to the Israeli government. There is a suggestion they did that, but that is not part of the criminal case. The only thing they are accused of doing is receiving classified information.

And the reason it’s so dangerous to make that a crime or to try to make that a crime is because that is something that journalists do every single day, by definition. They receive classified information that they know is classified. And if you can be imprisoned for that act, it essentially means the government can imprison journalists at will. It is an extremely dangerous decision, and the whole case, the purpose of the case, is to enable and empower the Bush administration to put journalists in prison.

JUAN GONZALEZ: Now, this Espionage Act, which as you mentioned was passed right around the time of World War I, led to quite massive crackdowns during that war on both the press and activist groups, didn’t it? And it has a pretty checkered history, in terms of constitutional law scholars.

GLENN GREENWALD: Right. I mean, at the height of World War I, there was definitely sort of a crazed domestic intent to declare people who were opposed to the war as subversives and to put them in prison. And that was why that law was passed. And you’re right, it was exercised in ways that we would today find not only horrifying, but clearly unconstitutional, after a century of Supreme Court cases.

But even back in 1917, when the Congress debated this law, there was a proposal to include the media, to include journalists within the provisions of the law, and the Congress rejected that provision on the grounds that it would essentially render journalists useless, because they would be too afraid to report anything meaningful. And despite the Congress doing that, the law was enacted without that provision and now the administration is trying to use it against journalists.

AMY GOODMAN: Glenn Greenwald, in May, Attorney General Alberto Gonzales was questioned about the whole AIPAC case by ABC’s George Stephanopoulos.

GEORGE STEPHANOPOULOS: So you believe journalists can be prosecuted for publishing classified information?

ALBERTO GONZALES: Well, again, George, it depends on the circumstances. There are some statutes on the book, which, if you read the language carefully, would seem to indicate that that is a possibility. That’s a policy judgment by the Congress in passing that kind of legislation. We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected. Obviously, we want to work with the press in getting the information that we can to pursue criminal wrongdoing, but we want to do so in a way, of course, that’s respectful of the role that the press plays in our society.

GEORGE STEPHANOPOULOS: Well, let me try and get specific on it then. Are you open to the possibility that the New York Times should be prosecuted for publishing their initial story on what the President calls his terrorist surveillance program?

ALBERTO GONZALES: George, we are engaged now in an investigation about what would be the appropriate course of action in that particular case. I’m not going to talk about it specifically. But as we do in every case, it’s a case-by-case evaluation about what the evidence shows us. Our interpretation of the law, we have an obligation to enforce the law and to prosecute those who engage in criminal activity.

GEORGE STEPHANOPOULOS: Including possibly the journalists themselves?

ALBERTO GONZALES: I’m not going to talk about, again, specific cases, but if the law provides that that conduct is in fact criminal and the evidence is there to support it, we have an obligation, of course, to look at that very seriously.

AMY GOODMAN: Alberto Gonzales, the Attorney General, being questioned by George Stephanopoulos. Glenn Greenwald, your response?

GLENN GREENWALD: You know, one of the reasons why I wrote my book is because I felt like the national media was failing to report what this administration is really doing, just how radical and extremist they are. And the most surprising failure in that regard is the fact that the Bush administration is being quite open about the fact that they’re entertaining the possibility of criminally prosecuting journalists for the stories that they write about the Bush administration.

And you would think that if the national media cared about anything, took a stand against this government on any issue, it would be that one, and yet there was Attorney General Gonzales openly speculating about the possibility that Jim Risen and Eric Lichtblau and the editors of the New York Times will be criminally prosecuted for the story they wrote about the warrantless eavesdropping program, and the media virtually did nothing. There was no outcry. There was no defense collectively on their part in order to defend against these measures.

There is nothing more dangerous than even the threat that journalists can be put into prison, because that will be in their minds when they go to report on the Bush administration. Our democracy needs a very aggressive and adversarial press. And this is what the administration is doing, is they’re trying to neuter the press, even more than it’s been neutered, with the threat of imprisonment. And it’s hard to think of a greater danger to our democracy than that.

AMY GOODMAN: Glenn Greenwald, I want to thank you very much for speaking with us, constitutional law attorney specializing in presidential power and First Amendment issues. His book is called How Would a Patriot Act?, and he runs the blog, ” Unclaimed Territory.” We’ll link to his pieces at and to his blog at our website,

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