Leak Investigation Ordered

Leak Investigation Ordered:

"'It's one of the first tangible signs that the view of the Bush administration, that journalists are not immune from prosecution for trafficking in classified information, might have currency with some federal judges,' said Rodney A. Smolla, dean of the University of Richmond Law School and an expert on First Amendment law. He said it is an 'open question' whether federal law allows for the prosecution of journalists for publishing classified information.

"The possibility of such prosecutions has swirled around Washington since the New York Times broke a story in December about the National Security Agency's surveillance of terrorist-related calls between people in the United States and abroad.

"Attorney General Alberto R. Gonzales has suggested publicly that New York Times journalists could be prosecuted for the NSA articles, and federal authorities are investigating other possible leaks that led to reports in The Washington Post about secret CIA prisons, law enforcement and intelligence officials have said."

First, the First Amendment issue -

With all due respect to Dean Smolla, if anyone can be prosecuted under the Espionage Act, then anyone includes journalists. If journalists cannot be prosecuted, then nobody can.

The First Amendment, when it speaks of "freedom of the press" does not refer to an institution which in modern times we term journalism. It refers to the very personal act of disseminating information and ideas, even by means of mechanical reproduction.

The First Amendment does not create a specially-privileged class having greater access to free speech than the rest of us. Shame on Dean Smolla for even giving credence to such a view.

Second, the sub-text of the press outrage over the NSA warrantless wiretapping flap -

I have been mystified by the legs this story has had given that such surveillance of electronic communications has been in place for a generation under the rubric of Echelon - a cooperative program of the intelligence services of the Anglo-Saxon nations. Under Echelon, each partner snoops on the citizens of other members of Echelon so that each escapes the limits on "domestic" surveillance adopted by their respective legislatures.

Now, reading the juxtaposition of elements in the paragraphs quoted above from the Washington Post, it occurs to me that maybe what's new is that a new generation of reporters has discovered that they, along with the rest of us, are being surveilled. And, for those who are anxious to undermine the Bush Administration by hook or by crook, the realization that trafficking in state secrets might land them in jail despite the nobility of their cause.