Reading: Bush revives the Espionage Act

There are longer ways to lay it out, but the short version is this: If the press is not free to report what the government doesn't want us to know, we're all a whole lot less free than we think we are.

Nat Hentoff at the Village Voice reports on an upcoming trial that needs to loom much larger on the radar screen:

Not many Americans know about this trial, slated for next January, that could result in future government suppression of news stories—based on classified information—such as The Washington Post's reports by Dana Priest of CIA secret prisons in Europe and the James Risen–Eric Lichtblau New York Times revelations on the National Security Agency's secret, warrantless spying on Americans.

The defendants, Steven Rosen and Keith Weissman, are former and dismissed staff members of the American Israel Public Affairs Committee (AIPAC), the leading pro-Israel lobbying organization.

They are accused by the Justice Department of having received classified information from a Defense Department analyst, Lawrence Anthony Franklin, who has since pleaded guilty and been sentenced to prison. Rosen and Weissman are charged with giving the information to an Israeli diplomat—and to a journalist.

"There's little difference between what the defendants are charged with and what reporters and advocates do day-to-day," says Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy. Aftergood says a conviction would put this nation far along the path to having its own Open Secrets law, the British measure that bars public interest as a defense for revealing classified information. "That would mean a fundamental transformation of the American government," he continues. "Retreating from freedom of the press would mean surrender of the principles of self-rule as the best form of government."

This story is one more reason regret that the Democratic control of the Senate currently hangs on the razor's edge of the junior Senator from Connecticut's wounded vanity:

In the 1971 Pentagon Papers case, the press successfully defied Richard Nixon and his fierce attorney general, John Mitchell, by running Daniel Ellsberg's very highly classified revelations of the government's pyramid of lies about the Vietnam War.

The Supreme Court vote backing press freedom in that case was 6 to 3, but five of the justices (pro and con) agreed nonetheless that "it seems reliable that a newspaper, as well as others unconnected with the Government, are vulnerable to prosecution" in other circumstances "if they communicate national security information." Among them, Justice Harry Blackmun warned that if publication of the Pentagon Papers resulted in "the death of soldiers . . . and prolongation of the war . . . the Nation's people will know where the responsibility for these sad consequences rest."

I expect that those five members of the Court in 1971—warning the press that the First Amendment is not a permanent shield in time of war—may well be remembered now by Chief Justice John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas.

As for Anthony Kennedy—who could be the pivotal vote against defendants Rose and Weissman, the press, and the public—we should know his vote in a year or more. There is also the possibility that before oral arguments at the Supreme Court, Bush may have another seat to fill. These are indeed historic, fateful times.

If the news media in America understand this threat to their fundamental role in our democracy, they should be all over this topic in the weeks and months to come. (The signs, frankly, are not that promising, but we can still hope.)

Hentoff's piece is going onto the Reading's list on the sidebar.