Late last year, just weeks after The New York Times exposed the National Security Agency domestic spying program, the Justice Department announced an investigation into how the story was leaked. The investigation may reach even further, according to Gabriel Schoenfeld, who, in an article in next month's Commentary magazine, says the Times could be prosecuted for violating the Espionage Act.
The 1917 Espionage Act makes it illegal for anyone to interfere with the operation or success of the armed forces. The first case prosecuted under the act came in 1942 when The Chicago Tribune published a story after the Battle of Midway which disclosed that we knew where Japanese ships were going to be'proof that we had cracked the Japanese code. The government was outraged. A grand jury was opened to look into the case, but charges were never brought. Doing so would have only put more focus on the case'further alerting the Japanese. Regardless, the Tribune did violate the Espionage Act and should have been punished for it.
In 2003, Geraldo Rivera was fired from Fox News for drawing a map in the Iraqi sand that showed troop locations on the air. He, too, was releasing sensitive material that could have been used by the enemy. Disclosing secrets that hurt national security is no small matter, especially during wartime, of which leakers and The New York Times are now accused.
Upon further review of the Espionage Act, it does seem as if the Times violated the law. In Section 798, Part A of the U.S. Criminal Code, it states whoever knowingly and willingly publishes 'any classified information concerning the communication intelligence activities of the United States' has violated the law. It defines 'communication intelligence' as 'all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients.'
By itself, this language does incriminate the Times, but there is much more to be considered.
How classified was the information published? The Times disclosed only enough information to allow for a public discussion of the legality of the program and published no operational details. President Bush claimed the leak has harmed the war on terror because now 'they' know we are listening to them. But Bush's own past statements have been considerably worse.
Bush explained how roving wiretaps work on June 9, 2005. He said they 'allow investigators to follow suspects who frequently change their means of communication,' which means 'terrorists could elude law enforcement by simply purchasing a new cell phone.' He explained how the Patriot Act changed everything by allowing us to use the same wiretaps as before. Since the Times expos?? in December, Bush has traveled the country explaining and speaking in defense of the program.
Does it really seem logical that, with all these disclosures of surveillance methods, upon hearing about the NSA program, terrorists were surprised to find out they were continuously being monitored? NO!
There is yet another reason to believe the Times did not break the law: The program is illegal. If an existing program is illegal and that information is disclosed to the public, it is not a crime. In fact, for this reason the Times did what it was supposed to. We have freedom of the press in this country to serve the governed, not the governors.
There is precedent for this case. In 1971, Daniel Ellsberg stole classified documents that proved the government had taken unnecessary actions in Vietnam in order to get us into the war and knew early on it was unlikely we could win. Collectively, they were called the Pentagon Papers.
In early 1971, portions of the Pentagon Papers were published by The New York Times. The Nixon administration was outraged and received an injunction to cease the publication for national security reasons. The case was brought to the Supreme Court later that year, and a 6-3 decision ruled in favor of the Times.
The New York Times made the right decision in publishing the Pentagon Papers. It is the role of the press to hold government accountable. Again, in 2005, the Times made the correct choice by disclosing the illegal NSA program. It did not violate the Espionage Act because classified information was not released. Terrorists know we are spying on them; now they know we do it by breaking the law.
An investigation into the leak and The New York Times is just an attempt to divert attention from the illegality of the program. Do not let it fool you.
