For more than a year now, EFF has encouraged mainstream press publications like the New York Times to aggressively defend WikiLeaks’ First Amendment right to publish classified information in the public interest and denounce the ongoing grand jury investigating WikiLeaks as a threat to press freedom.
Well, we are now seeing why that is so important: at a House Judiciary subcommittee hearing on July 11th, some members of Congress made it clear they also want New York Times journalists charged under the Espionage Act for their recent stories on President Obama’s ‘Kill List’ and secret US cyberattacks against Iran. During the hearing, House Republicans “pressed legal experts Wednesday on whether it was possible to prosecute reporters for publishing classified information,” according to the Los Angeles Times.
In addition, the Washingtonian’s Shane Harris reported a month ago that a “senior” Justice Department official “made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution.”
Leaks big and small have been happening for decades—even centuries—and the most recent are comparable to several others. No journalist has ever been prosecuted under the Espionage Act and it has generally been accepted, even by Congress's own research arm, that the publication of government secrets by the press is protected speech under the First Amendment. Yet the government is actively investigating WikiLeaks and now threatening others for just that.
The mainstream media may see little in common with Assange’s digital publication methods or his general demeanor, but what he is accused of is virtually indistinguishable from what other reporters and newspapers do every day: poke, prod, and cajole sources within the government to give up classified information that newspapers then publish to inform the public of the government’s activities.
It’s clear the WikiLeaks and major newspapers can’t be distinguished in their critics’ own statements. House committee witness Army Col. Ken Allard, echoing the claims by multiple members of Congress during the WikiLeaks controversy, called the ‘kill list’ and cyberattack leaks “unprecedented” in American history. And much like previous comments about Julian Assange, Allard likened New York Times reporter David Sanger to a spy, saying he was “systematically penetrating the Obama White House as effectively as any foreign agent.”
Similarly, Senator Dianne Feinstein’s recent comments advocating the prosecution of WikiLeaks under the Espionage Act in no sense apply to one media organization but not the other. Salon’s Glenn Greenwald demonstrated this by replacing phrase “Mr. Assange” with “New York Times” in Sen. Feinstein’s statement to the Australian paper The Sydney Morning Herald:
The head of the US Senate’s powerful intelligence oversight committee has renewed calls for [The New York Times] to be prosecuted for espionage. . . .
”I believe [The New York Times] has knowingly obtained and disseminated classified information which could cause injury to the United States,” the chairwoman of the Senate Select Committee on Intelligence, Dianne Feinstein, said in a written statement provided to the Herald. ”[It] has caused serious harm to US national security, and  should be prosecuted accordingly.”
In this case, like many others, Congress has invoked the vague, catchall phrase “national security” in an attempt to curtail rights that have existed for decades. As we’ve previously pointed out, “national security” has been used as an excuse to weaken constitutional protections in laws such as the Patriot Act and CISPA, but it’s also been used in attempts to threaten press freedom.
In 2006, shortly after the New York Times first exposed the NSA’s illegal warrantless wiretapping program, Attorney General Alberto Gonzales told ABC News he was contemplating charging Times reporters under the Espionage Act because of the perceived harm to “national security.” Of course, the investigation didn’t hurt national security, but it did inform the American people of an unconstitutional program that later sparked Congressional hearings, and many ongoing lawsuits (including EFF’s). It also won the New York Times the Pulitzer Prize.
The same exaggerated “national security” arguments were made during the Pentagon Papers case and many other instances as well. Yet as New York Times editor-in-chief Jill Abramson remarked in the wake of these new leaks, "No story about details of government secrets has come near to demonstrably hurting the national security in decades and decades.”
Congress, for its part, is taking the exact opposite approach it should take. Instead of doubling down on secrecy, it should be working to fix our broken classification system and should be calling for fewer secrets. And instead of clamoring for more prosecutions, it should call for a halt to current prosecutions of whistleblowers under the Obama administration—already twice the amount than all other administrations combined.
Still, the nation’s largest editorial boards—the New York Times, Washington Post, and Wall Street Journal—have been silent on the dangers of the WikiLeaks grand jury. If the mainstream media thought they were protected by the 1st Amendment while WikiLeaks could be prosecuted, they should now be on clear notice that the government makes no such distinction.
If the mainstream media leaves Wikileaks to hang, their own necks are at risk too.