Earlier administrations have fired and prosecuted government officials who provided classified information to the press. They have also tried to force reporters to identify their sources.
But the Bush administration is exploring a more radical measure to protect information it says is vital to national security: the criminal prosecution of reporters under the espionage laws.
Such an approach would signal a thorough revision of the informal rules of engagement that have governed the relationship between the press and the government for many decades. Leaking in Washington is commonplace and typically entails tolerable risks for government officials and, at worst, the possibility of subpoenas to journalists seeking the identities of sources.
But the Bush administration is putting pressure on the press as never before, and it is operating in a judicial climate that seems increasingly receptive to constraints on journalists.
In the last year alone, a reporter for The New York Times was jailed for refusing to testify about a confidential source; her source, a White House aide, was prosecuted on charges that he lied about his contacts with reporters; a C.I.A. analyst was dismissed for unauthorized contacts with reporters; and a raft of subpoenas to reporters were largely upheld by the courts.
Because such prosecutions of reporters are unknown, they are widely thought inconceivable. But legal experts say that existing laws may well allow holding the press to account criminally. Should the administration pursue the matter, these experts say, it could gain a tool that would thoroughly alter the balance of power between the government and the press.
The administration and its allies say that all avenues must be explored to ensure that vital national security information does not fall into the hands of the nation's enemies.
So in order to control information that is given to the American public, the Bush administration is willing to prosecute journalists who may provide information that has not been approved by the White House spin-meisters. This is scary. One of the most important duties of the press is being the watchdog for abuses within the government. And look at the abuses we've seen within this Bush White House--illegal domestic spying by the NSA against Americans, phone and date mining of Americans, misuse of Iraqi intelligence data on WMDs, Valerie Plame, the use of torture against prisoners in Abu Gharib prison, secret CIA detention facilities in Eastern Europe (that also uses torture against prisoners). These are all examples of abusive power by this Bush administration. The Bush White House has certainly declared that the publication of these stories have damaged the U.S. effort in fighting the Great War on Terrorism, or have aided the terrorists, or any number of excuses concerning terrorism. But it is not about terrorism. It is about the control of information. Consider this:
Critics of the administration position say that altering the conventional understanding between the press and government could have dire consequences.
"Once you make the press the defendant rather than the leaker," said David Rudenstine, the dean of the Benjamin N. Cardozo School of Law in New York and a First Amendment scholar, "you really shut down the flow of information because the government will always know who the defendant is."
So if the government can't discover who the leaker is in providing such information of the government's abuses, then you go after the press. If the government is successful in shutting down the press for publishing these leaks, then other publications and journalists will think twice about publishing leaks that are damaging to the government--hence, the government continues to control the flow of information. This is especially dangerous for a Bush White House that believes in absolute dictatorial powers, believes itself to be above the law, and is willing to destroy the constitutional rights and protections of all Americans in its quest for power.
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