Prosecuting Journalists

Gonzales is of the opinion that it can be done with respect to the release and publication of secret information.

"There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility," Mr. Gonzales said on the ABC News program "This Week."

"That's a policy judgment by the Congress in passing that kind of legislation," he continued. "We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected."

Asked whether he was open to the possibility that The New York Times should be prosecuted for its disclosures in December concerning a National Security Agency surveillance program, Mr. Gonzales said his department was trying to determine "the appropriate course of action in that particular case."

"I'm not going to talk about it specifically," he said. "We have an obligation to enforce the law and to prosecute those who engage in criminal activity."

Though he did not name the statutes that might allow such prosecutions, Mr. Gonzales was apparently referring to espionage laws that in some circumstances forbid the possession and publication of information concerning the national defense, government codes and "communications intelligence activities."

I get nervous when a lawyer starts with that "if you read the language carefully" statements. It probably is necessary, but it doesn't make you feel very confident in their choice of interpretations. The ACLU is going to ricochet around the walls on this one.

Some legal scholars say that even if the plain language of the laws could be read to reach journalists, the laws were never intended to apply to the press. In any event, these scholars say, prosecuting reporters under the laws might violate the First Amendment.

Mr. Gonzales said that the administration promoted and respected the right of the press that is protected under the First Amendment.

"But it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity," he said. "And so those two principles have to be accommodated."

I don't like the press double standard of full protection of any speech irrespective of the consequences. I find it highly unlikely that that was the intention of those who penned the constitution. On the other hand, I really would like to know the legal precedence on this, and I'm betting it's really messy. I checked at a couple of Blawgs and came up empty. Probably still too early.

Now, is this a warning shot or a threat? I'm going to give the AG the benefit of the doubt and go with warning. I'm going to go out on a limb and state that prosecutions on this are going to be rare and will have a low conviction rate. (And they will be defended and viciously attacked by the likes of the ACLU.)