NYTimes and Espionage?

[Annie]

http://www.commentarymagazine.com/Production/files/schoenfeld0306advance.html

COMMENTARY
March 2006

Has the New York Times Violated the Espionage Act?

Gabriel Schoenfeld

...
III

Although it has gone almost entirely undiscussed, the issue of leaking vital government secrets in wartime remains of exceptional relevance to this entire controversy, as it does to our very security. There is a rich history here that can help shed light on the present situation.

One of the most pertinent precedents is a newspaper story that appeared in the Chicago Tribune on June 7, 1942, immediately following the American victory in the battle of Midway in World War II. In a front-page article under the headline, “Navy Had Word of Jap Plan to Strike at Sea,” the Tribune disclosed that the strength and disposition of the Japanese fleet had been “well known in American naval circles several days before the battle began.” The paper then presented an exact description of the imperial armada, complete with the names of specific Japanese ships and the larger assemblies of vessels to which they were deployed. All of this information was attributed to “reliable sources in . . . naval intelligence.”

The inescapable conclusion to be drawn from the Tribune article was that the United States had broken Japanese naval codes and was reading the enemy’s encrypted communications. Indeed, cracking JN-25, as it was called, had been one of the major Allied triumphs of the Pacific war, laying bare the operational plans of the Japanese Navy almost in real time and bearing fruit not only at Midway—a great turning point of the war—but in immediately previous confrontations, and promising significant advantages in the terrible struggles that still lay ahead. Its exposure, a devastating breach of security, thus threatened to extend the war indefinitely and cost the lives of thousands of American servicemen.

An uproar ensued in those quarters in Washington that were privy to the highly sensitive nature of the leak. The War Department and the Justice Department raised the question of criminal proceedings against the Tribune under the Espionage Act of 1917. By August 1942, prosecutors brought the paper before a federal grand jury. But fearful of alerting the Japanese, and running up against an early version of what would come to be known as graymail, the government balked at providing jurors with yet more highly secret information that would be necessary to demonstrate the damage done.

Thus, in the end, the Tribune managed to escape criminal prosecution. For their part, the Japanese either never got wind of the story circulating in the United States or were so convinced that their naval codes were unbreakable that they dismissed its significance. In any case, they left them unaltered, and their naval communications continued to be read by U.S. and British cryptographers until the end of the war.4...

...The AIPAC case thus raises an obvious question. If Rosen and Weissman are now suspended in boiling hot water over alleged violations of the Espionage Act, why should persons at the Times not be treated in the same manner?

To begin with, there can be little argument over whether, in the case of the Times, national-defense material was disclosed in an unauthorized way. The Times’s own reporting makes this plain; the original December 16 article explicitly discusses the highly secret nature of the material, as well as the Times’s own hesitations in publishing it. A year before the story actually made its way into print, the paper (by its own account) told the White House what it had uncovered, was warned about the sensitivity of the material, and was asked not to publish it. According to Bill Keller, the Times’s executive editor, the administration “argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country’s security.” Whether because of this warning or for other reasons, the Times withheld publication of the story for a year.7

Nor does James Risen’s State of War hide this aspect of things. To the contrary, one of the book’s selling points, as its subtitle indicates, is that it is presenting a “secret history.” In his acknowledgements, Risen thanks “the many current and former government officials who cooperated” with him, adding that they did so “sometimes at great personal risk.” In an age when government officials are routinely investigated by the FBI for leaking classified information, and routinely charged with a criminal offense if caught in the act, what precisely would that “great personal risk” entail if not the possibility of prosecution for revealing government secrets?

The real question is therefore not whether secrets were revealed but whether, under the espionage statutes, the elements of a criminal act were in place. This is a murkier matter than one might expect....

...One might go further. What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism. If information about the NSA program had been quietly conveyed to an al-Qaeda operative on a microdot, or on paper with invisible ink, there can be no doubt that the episode would have been treated by the government as a cut-and-dried case of espionage. Publishing it for the world to read, the Times has accomplished the same end while at the same time congratulating itself for bravely defending the First Amendment and thereby protecting us—from, presumably, ourselves. The fact that it chose to drop this revelation into print on the very day that renewal of the Patriot Act was being debated in the Senate—the bill’s reauthorization beyond a few weeks is still not assured—speaks for itself.

The Justice Department has already initiated a criminal investigation into the leak of the NSA program, focusing on which government employees may have broken the law. But the government is contending with hundreds of national-security leaks, and progress is uncertain at best. The real question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate secret and what is not. Like the Constitution itself, the First Amendment’s protections of freedom of the press are not a suicide pact. The laws governing what the Times has done are perfectly clear; will they be enforced?

 

[Annie]

Hopefully there will be a price for these leaks:

http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/02/02/national/w115323S15.DTL

Intel Chiefs Say Disclosures Damage Work

By KATHERINE SHRADER, Associated Press Writer

Thursday, February 2, 2006

(02-02) 13:27 PST WASHINGTON, (AP) --

U.S. intelligence officials told Congress on Thursday that disclosure of once-classified projects like President Bush's no-warrant eavesdropping program have undermined their work.

"The damage has been very severe to our capabilities to carry out our mission," CIA Director Porter Goss told the Senate Intelligence Committee, citing disclosures about a variety of CIA programs that he suggested may have been compromised.

Goss said a federal grand jury should be empaneled to determine "who is leaking this information."

But Democratic members of the panel accused the Bush administration of wanting to have it both ways.

"The president has not only confirmed the existence of the program, he has spoken at length about it repeatedly," while keeping Congress in the dark, said Sen. Jay Rockefeller of West Virginia, the panel's senior Democrat.

Rockefeller suggested that such "leaks" most likely "came from the executive branch" of the government.

That brought a terse response from FBI Director Robert Mueller, who said, "It's not fair to point a finger as to the responsibility of the leak."

The sometimes pointed exchanges came as leaders of the nation's intelligence agencies appeared before the panel in a rare public session to give a rundown on threats facing the world.

Committee Democrats sought to change the focus to the president's decision to authorize the National Security Agency to eavesdrop — without first obtaining warrants — on communications to and from those in the United States and terror suspects abroad.

National Intelligence Director John Negroponte, who oversees all intelligence activities, strongly defended the program, calling it crucial for protecting the nation against its most menacing threat.

"This was not about domestic surveillance," he said.

As an indication of how closely the administration held the NSA program, Paul McNulty, the acting deputy attorney general since October, said Thursday he learned of it only when he read about it in The New York Times.

Testifying at his Senate confirmation hearing, McNulty said he does not know whether information gathered through the warrantless surveillance has been used in prosecutions in the Alexandria, Va.-based federal judicial district where he has been the chief federal prosecutor since Sept. 2001.

Two defendants in terrorism cases in Virginia have asked a federal judge to determine whether any evidence against them resulted from NSA eavesdropping.

On the specific question of assessing the terrorist threat, Negroponte called al-Qaida and associated terror groups the "top concern" of the U.S. intelligence community, followed closely by the nuclear activities of Iran and North Korea.

Goss complained that leaks to the news media about classified CIA programs — such as reported CIA secret prisons abroad — had damaged his own agency's work.

"I use the words `very severe' intentionally. And I think the evidence will show that," he said.

Goss cited a "disruption to our plans, things that we have under way." Some CIA sources and "assets" had been rendered "no longer viable or usable, or less effective by a large degree," he said.

The revelations have also made intelligence agencies in other countries mistrustful of their U.S. counterparts, Goss said....

 

[Adam's Apple]

Has the NYT violated the Espionage Act? I'll take that bet. They should be prosecuted to the extent that the law allows. Recalling how the American Colonies dealt with British sympathizers during the Revolutionary War, I don't believe the Founders idea of "free speech" gave leeway to aiding and abetting the enemy in times of war.