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| Fifth Column |
| Leaks and the Law |
| 2006-06-24 |
| The case for prosecuting the New York Times. by Gabriel Schoenfeld Can journalists really be prosecuted for publishing national security secrets? In the wake of a series of New York Times stories revealing highly sensitive counterterrorism programs, that question is increasingly the talk of newsrooms across the country, and especially one newsroom located on West 43rd Street in Manhattan. Last December, in the face of a presidential warning that they would compromise ongoing investigations of al Qaeda, the Times revealed the existence of an ultrasecret terrorist surveillance program of the National Security Agency and provided details of how it operated. Now, once again in the face of a presidential warning, the Times has published a front-page article disclosing a highly classified U.S. intelligence program that successfully penetrated the international bank transactions of al Qaeda terrorists. Although the editors of the Times act as if prosecution is not a possibility, not everyone concurs. One person who is still mulling the matter over is Attorney General Alberto Gonzales. Asked in late May about the prospect of prosecuting the Times and others who publish classified information, he by no means ruled it out. "There are some statutes on the books," he said, "which, if you read the language carefully, would seem to indicate that that is a possibility." Unsurprisingly, given what is at stake, even that tentative opinion elicited a fire and brimstone denunciation from the Times. An editorial on May 24 dismissed as "bizarre" the attorney general's "claim that a century-old espionage law could be used to muzzle the press." It has long been understood, added the newspaper, that the "overly broad and little used" Espionage Act of 1917 applies only to government officials and "not to journalists." But this interpretation, even if it were accurate (which it is not), is entirely beside the point. The attorney general did not mention the 1917 Espionage Act or any other specific law. But if the editors of the paper were to take a look at the U.S. Criminal Code, they would find that they have run afoul not of the Espionage Act but of another law entirely: Section 798 of Title 18, the so-called Comint statute. Unambiguously taking within its reach the publication of the NSA terrorist surveillance story (though arguably not the Times's more recent terrorist banking story), Section 798 reads, in part: Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information . . . concerning the communication intelligence activities of the United States . . . shall be fined not more than $10,000 or imprisoned not more than ten years, or both [emphasis added]. This law, passed by Congress in 1950 as it was considering ways to avert a second Pearl Harbor during the Cold War, has a history that is highly germane to the present conduct of the Times. According to the 1949 Senate report accompanying its passage, the publication in the early 1930s of a book offering a detailed account of U.S. successes in breaking Japanese diplomatic codes inflicted "irreparable harm" on our security. The Japanese responded to the book's revelations by investing heavily in the construction of more secure codes. Thanks to the ensuing Japanese progress, the report concludes, the United States was unable to "decode the important Japanese military communications in the days immediately leading up to Pearl Harbor." In other words, the aerial armada that devastated our Pacific Fleet had the skies in effect cleared for it by leaks of classified information. Leaks of communications intelligence secrets pose an equivalent danger today. The 9/11 Commission identified the gap between our domestic and foreign intelligence gathering capabilities as one of the primary weaknesses that left us open to assault. The NSA terrorist surveillance program aimed to cover that gap. The program, by the Times's own account of it, was one of the most closely guarded secrets in the war on terrorism. After it was exposed, a broad range of government officials privy to the workings of the program, including Democrats (such as Jane Harman of the House Intelligence Committee), said that the unauthorized disclosure inflicted severe damage on our ability to track al Qaeda. Such leaks cause harm of a more general but no less consequential sort. In waging the war on terrorism, the United States depends heavily on cooperation with allied intelligence agencies. But when our own intelligence services demonstrate that they are unable to keep shared information under wraps, international cooperation grinds to a halt. This is a matter not of idle conjecture but of demonstrable fact. During the run-up to the Iraq war, the United States was urgently attempting to assess the state of play of Saddam Hussein's program to acquire weapons of mass destruction. One of the key sources suggesting that an ambitious WMD buildup was underway was an Iraqi defector, known by the codename of Curveball, who was talking to German intelligence. But Washington remained in the dark about Curveball's true identity, and the fact that he was a serial fabricator. Why would the Germans not identify Curveball? According to the Silberman-Robb WMD Commission report, they refused "to share crucial information with the United States because of fear of leaks." In other words, some of the blame for our mistaken intelligence about Iraq's WMD program rests with leakers and those in the media who rush to publish the leaks. Given the uproar a prosecution of the Times would provoke, the attorney general's cautious approach is certainly understandable. But what might look like a prudent exercise of prosecutorial discretion will, in the face of the Times's increasingly reckless behavior, send a terrible message. The Comint statute, like numerous other laws on the books limiting speech in such disparate realms as libel, privacy, and commercial activity, is fully compatible with the First Amendment. It was passed to deal with circumstances that are both dangerous and rare; the destruction of the World Trade Center and the continuing efforts by terrorists to strike again have thrust just such circumstances upon us. If the Justice Department chooses not to prosecute the Times, its inaction will turn this statute into a dead letter. At stake here for Attorney General Gonzales to contemplate is not just the right to defend ourselves from another Pearl Harbor. Can it really be the government's position that, in the middle of a war in which we have been attacked on our own soil, the power to classify or declassify vital secrets should be taken away from elected officials acting in accord with laws set by Congress and bestowed on a private institution accountable to no one? Gabriel Schoenfeld is senior editor of Commentary. This article is adapted from his June 6 testimony before the Senate Judiciary Committee. |
| Posted by:ryuge |
| #16 NYT Does it Again, This weekend, Posting information from a Classified Meeting this week at the Pentagon... NYT has gone over to Al Qaeda. Lock up the Executives. The top American commander in Iraq has drafted a plan that projects sharp reductions in the United States military presence there by the end of 2007, with the first cuts coming this September, American officials say. According to a classified briefing at the Pentagon this week by the commander, Gen. George W. Casey Jr., the number of American combat brigades in Iraq is projected to decrease to 5 or 6 from the current level of 14 by December 2007... (hat-tip Michelle Malkin) |
| Posted by: Gromosh Elminegum5705 2006-06-24 23:04 |
| #15 It t'aint TOP SECRET anymore - FDR and WIlson did it for World Wars I + II, and while Congress has not officially declared war a de facto US national security issue is pertinent here becuz of the fatwas issued by armed Radical Islamist groups to attack and destroy the USA in the name of Islam andor Radical islam. *GOD = MORALISM = ETHICS, etal. is important > wid out these, all you have, or may have eventually, are PC, Nepotist orgs, institutions, and public authorities no better than the PC criminals sell-outs, andor de facto traitors Society is supposed to be protected from. Public authorities become part of the problem, NOT the solution and certainly not justice. SECULAR ETHICS = REGULATION/LEGALISM/CANONISM, etc > "I CAN'T, BY LAW OR REGULATION, DO THAT", which is NOT always the same as I DON'T BELIEVE I SHOULD THAT!? |
| Posted by: JosephMendiola 2006-06-24 21:20 |
| #14 Just past some new Torte Law Reform [sorta like Immigration 'Reform']. Make publications subject to civil damages by survivors of victim of attacks by enemies during time of war or war like environments. Let the standard be preponderance of evidence which can be inferred that the plaintiffÂ’s actions contributed to the death of their loved one. Unlike criminal proceedings where reasonable doubt is the standard, just the review of willful and negligent actions makes the plaintiff accountable. Read - deep pockets. |
| Posted by: Crath Choger3081 2006-06-24 16:54 |
| #13 There are laws against espionage and treason but they're not being used. Many moon bats would end up behind bars or executed if these laws were applied. |
| Posted by: Kalle (kafir forever) 2006-06-24 16:43 |
| #12 Kalle: Process of law? The problem with what the moonbats, the Donks, Murtha, and the NYT is doing is that law is used as a weapon against to the very Republic that the law is supposed to uphold. Hence, posts like Glomogum Shogum2997 2006-06-23 13:49, yesterday. SG's sentiments are not unusual. |
| Posted by: SR-71 2006-06-24 16:07 |
| #11 the WSJ news det is totally liberal, while the op-ed is relatively conservative. They are shills for illegals |
| Posted by: Frank G 2006-06-24 13:53 |
| #10 So, I see that the NYT has released a propaganda video to go along with their latest act of treason. They're learning from the Al Qaeda playbook. Bin Laden, Zarqawi, and Zawahiri love to promote their hatred of the USA via video clips. |
| Posted by: Kalle (kafir forever) 2006-06-24 13:00 |
| #9 From WaPo: "A lawsuit filed yesterday in U.S. District Court in Chicago accused SWIFT of violating the privacy rights of Americans by disclosing private financial information to the government, Bloomberg News reported. The plaintiff named in the suit, Ian Walker, was described as a D.C. resident, although no further information was made available. The suit seeks statutory, compensatory and punitive damages on behalf of every American who made a domestic or international financial transaction after Sept. 11, 2001." Be nice to know who Ian the Pious really is.... |
| Posted by: Inspector Clueso 2006-06-24 12:34 |
| #8 The WSJ likes open borders and cheap labor. They are totally against the minutemen, the border fense, and pro amnesty. The WSJ is not your friend. |
| Posted by: wxjames 2006-06-24 12:33 |
| #7 Here's what Investor's Business Daily says: "Once again, major newspapers, led by The New York Times, have spilled secrets that will make Americans less safe and the war on terror harder to win. No doubt, Pulitzers are in order. We hope they're proud. The decision by The New York Times, Los Angeles Times, Washington Post and Wall Street Journal to print details of the government's secret program to monitor terrorists' finances couldn't come at a worse time. ..." What exactly did the WSJ print? and why? |
| Posted by: Kalle (kafir forever) 2006-06-24 11:05 |
| #6 Actually, how it is stopped is important. There must be a process of law. The responsible individuals must all suffer strict consequences. The punishment must be severe -- as severe as the law requires, and at a minimum as much as the least that previous war-time traitors have suffered (life in prison?). The people who have been undermining the War effort must be made to visibly suffer the most painful consequences. Lose property, liberty, and in some cases life. No matter who they are, how much money they have, who their friends are, what their "profession" is. If it means the NYT owner, editors, journalists, and even some Senators are tried and executed -- so be it. But it's got to be a process of law. Because that's the nature of this Republic. And what we need today is to establish the principle that treason is a crime and no traitor shall remain above the law. |
| Posted by: Kalle (kafir forever) 2006-06-24 10:54 |
| #5 Yes, it must be stopped but there are at least two guilty parties. None of this or anything else concerning a Special Access Program (SAP), would see the light of day unless someone "read-on to the program" disclosed it. That someone could be internal to the agency (worthless gummit, commi civilian or uniformed traitor), or a donk politician on one of the intelligence commitees. |
| Posted by: Besoeker 2006-06-24 10:41 |
| #4 It must be stopped and I am starting to not care how. |
| Posted by: Sock Puppet of Doom 2006-06-24 10:14 |
| #3 "As much as I would like to see Justice throw the book at the Slimes, the best answer may be to let Americans answer by decreasing their readership." If the only consequences of the Times' perfidy were political, I would agree. But their actions help the enemy to evade detection, encourage the enemy to keep on fighting, and enable the enemy to kill more American soldiers-- and someday, very likely, more American civilians in another mass-casualty terrorist attack. No, this shit MUST be stopped. It's too damaging to our nation's security. |
| Posted by: Dave D. 2006-06-24 08:26 |
| #2 P.S. Liberals always like to play victims |
| Posted by: Captain America 2006-06-24 07:46 |
| #1 The Slimes is trying to force the issue with Justice in order to push their fallen readership. The reason for the coordinated release of front-page articles in the LA Slimes, the NY Slimes, WaPo, WSJ, etc. was an attempt to up the ante. As much as I would like to see Justice throw the book at the Slimes, the best answer may be to let Americans answer by decreasing their readership. |
| Posted by: Captain America 2006-06-24 07:45 |