This post at Secrecy News reports on March 2007 remarks made by the Justice Department to Congress imparting DOJ’s view that the federal espionage statutes could be used against journalists who publish leaked information.

The post draws from a March 2007 written submission by the DOJ to Congress supplementing June 2006 testimony regarding disclosure of classified information by the press.

In its written submission the DOJ noted that the federal espionage statutes, 18 U.S.C. §§ 793, 798 do not exempt journalists and by their terms could apply.  The Department noted, however, that journalists were not necessarily a current focus of prosecution and that the DOJ “strongly believes that the best approach is to work cooperatively with journalists to persuade them not to publish classified information that can damage national security.”  Especially interesting is the exchange noted by Secrecy News in which the DOJ emphasizes that improper or unnecessary classification is likely not a defense to prosecution, citing to United States v. Boyce, 594 F.2d 1246 (9th Cir. 1979).  The DOJ also cites to Justice White’s concurring opinion in the Pentagon Papers case, New York Times v. United States, 403 U.S. 713, 740 (1971), as support for the potential for application of the espionage laws to journalists.