First Amendment foes are again attempting to criminalize news reporting that exposes questionable if not illegal conduct by the White House, Pentagon, and intelligence agencies, from dispatching terrorism suspects to secret torture chambers abroad to listening in on private phone conversations.
An attempt by Sen. Kit Bond (R-Mo.) in 2005 to pass legislation similar to Britain's Official Secrets Act failed, but Sen. Jon Kyl (R-Ariz.) quietly tried to attach an amendment to an unrelated bill scheduled for committee review last month that would have expanded the Espionage Act of 1917.
The amendment's broad scope was narrowed March 2 before being shifted to another Senate bill amid an outcry by First Amendment advocates. The proposal's almost laughably vague original legislative language aimed to punish anyone who published or communicated classified information "concerning efforts by the United States to identify, investigate or prevent terrorist activity."
The amendment would have extended jail time for whistleblowers to 20 years. Senate Bill 2, where the amendment now rests, was originally intended to enact the remaining recommendations of the 9/11 Commission. The new amendment would still punish employees working on Capitol Hill or other unauthorized personnel who knowingly disclose classified information contained in congressional reports.
Coalition of Journalists for Open Government coordinator Pete Weitzel told the Guardian that the earlier language seemed to include newspaper publishers as well as government employees in its scope.
Conservative members of Congress called for reporters to be punished under the Espionage Act after the New York Times, the Washington Post, and other media reported details of the George W. Bush White House's domestic wiretapping and extraordinary rendition programs. In particular, Post reporter Dana Priest and Times reporter James Risen were condemned and accused of treason by Fox News pundits and jingoistic bloggers for harming national security, today's ever-present excuse for government secrecy.
"Current laws are sufficient to prosecute anyone who leaks classified information and has an intent to harm the United States," Weitzel told us from Washington. "There's no impediment to going ahead and prosecuting under existing law. So I don't see a need for this additional legislation."
Sunshine activists worried the original amendment could plausibly include journalists covering emergency response planning, security failures, public health threats, and federal homeland security spending. In addition, its broadness is simply unconstitutional, according to the Virginia-based Sunshine in Government Initiative.
"The amendment would work to constrain critical reporting on homeland security even information as basic as homeland security grants as well as national security and foreign policy matters," the group, which includes the Association of Alternative Newsweeklies (of which the Guardian is a member), wrote in a public statement Feb. 27.
The Espionage Act was passed under President Woodrow Wilson and led to a 10-year prison term for one-time Socialist Party leader and presidential candidate Eugene V. Debs, who was eventually pardoned by President Warren G. Harding after serving three years. Debs had criticized World War I and conscription during a speech in Ohio.
"Do not worry over the charge of treason to your masters," he said during the speech, "but be concerned about the treason that involves yourselves. Be true to yourself, and you cannot be a traitor to any good cause on earth." *
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