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Prosecuting the press


CHICAGO -- Critics often accuse the news media of helping al-Qaida by printing government secrets, and it's starting to look as if they have a point. Lately, Republicans in Washington are so busy with search-and-destroy missions against journalists that they may have no energy left to focus on Islamic terrorists.

Conservatives have never much liked the press, but they are enjoying the chance to graduate from charging it with liberal bias to charging it with deliberately betraying the nation in wartime. They spied that opportunity in December, when The New York Times reported the National Security Agency's secret eavesdropping on phone calls and e-mail communications between the United States and foreign countries.

But it's not enough to vilify the news media for letting the public know things the administration would prefer to keep quiet. The latest idea is to start putting people in prison when they publish such information. Recently, that idea got a favorable response from Attorney General Alberto R. Gonzales.

"There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility," he declared. "We have an obligation to enforce the law and to prosecute those who engage in criminal activity."

The law allows prosecution of anyone who "communicates, furnishes, transmits ... or publishes" classified information about the government's "communication intelligence activities." While the Espionage Act has traditionally been used mainly against government employees, some people say it should also be applied to journalists.

Their thinking goes: Why should it be a felony to give secret national security information to Osama bin Laden but not to give it to the millions of people who read The New York Times? Either way, the bad guys find out things the government doesn't want them to know. So why shouldn't these reporters be punished?

The simple answer lies in a passage of the First Amendment to the Constitution that says: "Congress shall make no law ... abridging the freedom of speech, or of the press." Punishing a newspaper for what it publishes is an excellent example of what the First Amendment is supposed to forbid.

It's also a good example of what previous administrations have known better than to attempt.

Freedom of the press has its limits. A newspaper certainly could be prosecuted for publishing details of when and where the Army was planning an attack. But the Supreme Court concluded long ago that the government can't take action merely because the press makes disclosures that have some connection to national security. As a rule, the story has to pose a "clear and present danger" of serious harm - not a speculative or distant possibility of something-or-other.

To get a conviction, the Justice Department would have to prove the story posed a grave risk, which would be a high hurdle. The Times, after all, didn't alert al-Qaida confederates to the possibility that they were being wiretapped, which has always been allowed - only that the government might be listening without a warrant instead of with one.

The Times didn't act with reckless disregard for the consequences: It omitted some information the government said could be damaging.

Even if it could prove serious damage, the government would also have to prove it outweighed the value to the public of knowing the administration was doing something that may be grossly illegal. That's another hurdle Mr. Gonzales might fall on his face trying to clear.

In the end, the Justice Department might keep in mind that it's not the job of the press to prevent leaks of classified information - it's the job of the government. Acting to curb leaks is a legitimate and useful application of the administration's powers. Punishing journalists for the government's failure is not.

Steve Chapman is a columnist for the Chicago Tribune. His column appears Mondays and Wednesdays in The Sun. His e-mail is schapman@tribune.com.

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