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Chilling Effect

July 22, 1986

In the last year the Reagan Administration has broadened the use of the espionage laws to prosecute people who are not spies. It successfully prosecuted Samuel L. Morison, a civilian intelligence analyst for the Navy, for giving classified photographs to the press, and it warned NBC and the Washington Post that they could be prosecuted for divulging intelligence information. To the government, these activities constitute spying no less than what the Walker family did.

At the same time, Congress has sought to do something about the epidemic of real spying cases that erupted in 1985. Late last month the Senate passed a bill intended to prevent spies from profiting by selling their stories. The bill would require that "any person convicted" under the espionage act "shall forfeit to the United States . . . any of the person's property used . . . in any manner or part . . . to commit or to facilitate the commission of such violation."

If this bill becomes law, a newspaper that is convicted of espionage for publishing information could have its assets seized--including its presses. Nothing like that has ever happened in the history of this country. It would be anathema to the First Amendment and to the goal of an informed public.

The term chilling effect is overused, but in this case it accurately describes what will happen if Congress adopts the Senate measure. The cost of being convicted of espionage would be to put the newspaper or television network out of business. So the press is likely to be overly cautious about what it prints, and news about intelligence activities is likely to disappear. The ability of the people to monitor what the government is doing will disappear with it.

Sen. Ted Stevens (R-Alaska) probably didn't realize the sweeping consequences of his measure, which has been called the "You Spy, You Die" bill. The Senate didn't realize it, either. They were thinking about spies, not about leakers who give information to the press or leakees who publish it.

But that is what the law would require. Notice that the applicable verb in the statute is shall forfeit. A judge would have no discretion.

The perniciousness of the Administration's approach to this subject becomes clearer all the time. The espionage laws should be restricted to spies and spying, which is what Congress intended. And the House-Senate conference committee that is to take up the Diplomatic Security and Anti-Terrorism Act should either drop the Senate's forfeiture provision or make clear that it applies to spies and not to the press.

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