WASHINGTON – The Senate Judiciary Committee gave the Bush administration a new lashing Tuesday over its use of executive power, citing the FBI's posthumous probe of columnist Jack Anderson and questioning the notion that espionage laws might allow the prosecution of journalists who publish classified information.
"It's highly doubtful in my mind that that was ever the intent of Congress," Judiciary Committee Chairman Arlen Specter said.
The World War I-era espionage laws, countered Justice Department criminal division chief Matthew Friedrich, "do not exempt any class of professionals, including reporters, from their reach."
"I believe that's an invitation to Congress to legislate on the subject," replied Specter, R-Pa. "Clearly, the ball is in our court."
Friedrich refused to comment on the Anderson case, in which the FBI is seeking 50 years' worth of papers from the investigative journalist who exposed government scandals and earned a place on President Nixon's "enemies list."
Friedrich's response echoed deferrals by Attorney General Alberto Gonzales and other Justice Department officials in previous hearings on the administration's domestic wiretapping, phone tapping and other policies. Specter and other committee members grew exasperated.
"Why in heaven's name were you sent up here?" ranking Democrat Patrick Leahy of Vermont fumed. "Are there any questions you guys are allowed to answer other than your title, time of day?"
Friedrich responded that Judiciary Committee was advised of this limit before the hearing opened. He added that the FBI was preparing answers to the committee's questions about the Anderson case.
With the administration considering prosecuting journalists who publish classified information and refuse to reveal their sources, the committee wants the full story of the effort to obtain Anderson's archive months after his death at age 83.
Anderson's son Kevin, a lawyer, told the panel that he and his mother are prepared to face contempt charges if the FBI's effort to search the papers ever produces a subpoena or is upheld in court.
"The family has met and decided that we would not abide by a subpoena if one were issued by the FBI," Anderson said.
Specter asked if Anderson would risk a contempt citation.
"I would and I've spoken with my mother and she would as well," Anderson said.
"It's not an irrelevant question," Specter observed.
Anderson and Mark Feldstein, a former investigative reporter who is writing a book about Anderson, say FBI agents have appeared at their homes seeking the roughly 200 boxes of Anderson's papers to which the family had granted Feldstein access. The agents, Feldstein has said, cited national security concerns.
The FBI has said that if the papers contain classified information, they belong to the government.
The FBI had long sought Anderson's papers after he published stories exposing the Keating Five, a CIA plan to assassinate Fidel Castro and details of the Iran-Contra affair.
Anderson's son said the FBI contacted his mother shortly after his father's funeral, expressing interest in documents that would aid the government's case against two former lobbyists for the American Israel Public Affairs Committee who have been charged with disclosing classified information.
In addition, the agents told the family they planned to remove from the columnist's archive — which had yet to be catalogued — any document they came across that was stamped "secret" or "confidential," or was otherwise classified.
The family refused.
"They flashed their badges and said they needed access to the papers," said Feldstein. Anderson donated his papers to the university, but the family had not yet formally signed them over.
FBI Special Agent Richard Kolko, a spokesman in Washington, said in an interview that the bureau wants to search the Anderson archive and remove classified materials before they are made available to the public. "It has been determined that, among the papers, there are a number of U.S. government documents containing classified information," Kolko said, declining to say how the FBI knows.
The documents contain information about sources and methods used by U.S. intelligence agencies, he said.