Thursday, June 15, 2006

Prosecuting the press for publishing classified information Prosecuting the press for publishing classified information

A couple of recent articles have echoed my points at volokh.com (for example, see "Why Publish Government Secrets") that there is nothing in the law that would or should prevent prosecution of newspapers from being prosecuted for disclosing classified information, and, in particular, the existance of the NSA international surveilance program. Scott Johnson of PowerLineBlog.com makes this point in the Weekly Standard in an article titled: "Did the New York Times break the law with its wire-tapping story?" as did John Eastman of the Claremont Institute in the Wall Street Journal article titled: "Does the First Amendment allow the media to publish classified information?".

This practice has been defended by Robert G. Kaiser of WaPo in an article there titled: "Public Secrets" and Bill Keller of the NYT in a CNN article titled: "N.Y. Times statement defends NSA reporting". In both articles, the two papers claim that they consider the harm that might come from their disclosure before disclosing classified information, and with the NSA program, decided that disclosure would not impact national security. Nevertheless, the President, and his Administration, in a much better place to know the facts, disagree.

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