BOB GARFIELD: From WNYC in New York, this is NPR's On the Media. I'm Bob Garfield.
BROOKE GLADSTONE: And I'm Brooke Gladstone. When the National Security Agency's secret wiretapping program first came to light last year, the government reassured us that the program was limited strictly to terrorists and their associates. But on Thursday we learned, courtesy of USA Today, that Uncle Sam is, in fact, watching you, or at least the phone numbers you dial. The report alleges that since 9/11, AT&T, Verizon and Bell South have been feeding call records to the NSA, which is building, in one source's words, “the largest database ever assembled in the world.” President Bush immediately went on TV not to deny the charge, but to state yet again that the government was acting within the law. If anyone's at fault, he suggested, it's the blabbermouths who spoke to the press.
PRESIDENT GEORGE BUSH: As a general matter, every time sensitive intelligence is leaked, it hurts our ability to defeat this enemy.
BROOKE GLADSTONE: Got that, USA Today? In recent weeks, The New York Times and The Washington Post have also been criticized by Attorney General Alberto Gonzales, among others, for their Pulitzer Prize-winning exposes of NSA wiretapping and CIA prisons in Europe. Some say the papers could be in violation of the 1917 Espionage Act, but George Washington University law professor Jonathan Turley says they're just doing their jobs.
JONATHAN TURLEY: The media in the last few years has done precisely what the First Amendment was designed to do; that is, reporters have brought to the public operations that have been viewed as criminal by many experts. The response of the administration is equally classic – they're suggesting that these reporters could be charged criminally, and there's been suggestions that Congress increase the penalties for journalists. We also have some very disturbing prosecutions, like the AIPAC case, where the administration is arguing that even hearing classified information can violate the Espionage Act.
BROOKE GLADSTONE: Well, let's talk about the AIPAC case. What are the legal implications there for reporters and the rest of us, and where does that stand?
JONATHAN TURLEY: Well, you have these two gentlemen who work for AIPAC. This is the lobbying organization that works for the interests of Israel. And they had meetings with a gentleman by the name of Franklin who passed along orally classified information. Franklin was prosecuted for that, and indeed not many people objected to the argument that he could be prosecuted. He had knowingly released classified information. However, there was a significant jump in arguing that the people who received the information orally could also be prosecuted. It's an argument that puts all reporters at potential risk.
BROOKE GLADSTONE: Well, let's get back to the USA Today story. I'm curious about how you see Congress' role in all of this. As soon as the story broke, there was a flurry of pledges from senators and representatives that phone company executives would be hauled up to Capitol Hill for a thorough grilling. On the other hand, this surveillance program has allegedly been going on for four and a half years. Shouldn't Congress have already figured out what was going on?
JONATHAN TURLEY: I think what this story demonstrates quite vividly is that there is no oversight in Congress. You know, we had the ranking member of the House Intelligence Committee recently say, with regard to the NSA Domestic Surveillance Program, that she didn't think it was her job to look into whether the operation was lawful. And many of us were left scratching our heads. We weren't sure what she thought her job was. And— [OVERTALK]
BROOKE GLADSTONE: And we're talking about the other surveillance program that was exposed by The New York Times some time ago.
JONATHAN TURLEY: That's right. I mean, I've actually come to the conclusion that we'd be better off without the intelligence committees, because there is no oversight. It gives the false impression of oversight, which is even worse.
BROOKE GLADSTONE: And to drive home the point, this week the Justice Department announced it had dropped its own investigation of the NSA wiretapping program because its investigators had been repeatedly denied security clearances to get information about the program.
JONATHAN TURLEY: I know. That's just - it's perfectly bizarre.
BROOKE GLADSTONE: Well, what about the legal exposure of the phone companies? There was a case recently brought against AT&T. The government invoked the States Secrets Privilege. Increasingly, especially since 9/11, whenever the Justice Department comes in and says, this is a state secret, we cannot discuss this in open court, the judges will almost always agree and the case gets shut down.
JONATHAN TURLEY: That case is going to raise a very interesting question, because what the government is trying to do is to invoke the privilege over an operation that many of us in this area believe was a federal crime. Now clearly, when the court created this privilege, it never intended it to be used to shield criminal conduct by an administration.
BROOKE GLADSTONE: So, Jonathan, to what extent does the media's right to report on these secret programs hinge on the legality of those programs themselves? If the attorney general, for instance, follows through on his threat to haul journalists into court for violating the Espionage Act, would a judge first have to determine if the programs were legal?
JONATHAN TURLEY: I think that they probably would, but they could simply look at the question of whether this is a matter of great public interest. The White House is basically saying that regardless of whether what they did was a crime, it was still a classified crime, and therefore you can be prosecuted for even hearing about it and reporting on it. We have a long history of the government classifying criminal acts and negligence to try to keep it from the public eye. Now, the reason journalists are so exposed in the federal system is that Congress has refused to pass a federal shield law, a law that gives protection to journalists, that allows them to refuse to turn over their sources in a grand jury, for example.
BROOKE GLADSTONE: So there's no protection at all. All they've got basically are the public and the Pulitzer Prize Committee.
JONATHAN TURLEY: That [CHUCKLES] is basically true. And what's disturbing is that because Congress has become virtually comatose, reporters are the only check now on this government. And so, it's a great irony that they have never been more exposed.
BROOKE GLADSTONE: Jonathan, thank you very much.
JONATHAN TURLEY: My great pleasure.
BROOKE GLADSTONE: Jonathan Turley is a law professor at George Washington University.