Closing down the press

As I've noted before on this blog, I suspect the Bush administration is preparing the way to essentially close down the press -- or at least any part of it that tries to investigate what's going on in government. The particular targets will be the NY Times for its piece on the NSA evasdropping and the Washington Post for its story on CIA gulags. The Times has more on this today:

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…

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.

…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."

…Curiously, perhaps the most threatening pending case for journalist is one brought against two former lobbyists for the American Israel Public Affairs Committee, or Aipac. The lobbyists, Steven J. Rosen and Keith Weissman, were indicted in August on charges of violating the 1917 law by receiving and repeating national defense information to foreign officials and reporters.

The lobbyists say the case against them is functionally identical to potential cases against reporters.

"You can't say, 'Well, this is constitutional as applied to lobbyists, but it wouldn't be constitutional if applied to journalists,' " Abbe D. Lowell, a lawyer for Mr. Rosen, said at a hearing in the case last month, according to a court transcript.

In court papers filed in January, prosecutors disagreed, saying lobbyist and journalist were different. But they would not rule out the possibility of also charging journalists under the law.

"Prosecution under the espionage laws of an actual member of the press for publishing classified information leaked to it by a government source would raise legitimate and serious issues and would not be undertaken lightly," the papers said. Indeed, they continued, "the fact that there has never been such a prosecution speaks for itself."

Some First Amendment lawyers suspect that the case against the lobbyists is but a first step.

"From the point of view of the administration expanding its powers, the Aipac case is the perfect case," said Ronald K. L. Collins, a scholar at the First Amendment Center, a nonprofit educational group in Virginia. "It allows them to try to establish the precedent without going after the press."