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Did the New York Times break the law with its wire-tapping story?

11:00 AM, Jan 24, 2006 • By SCOTT W. JOHNSON
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IS THE New York Times a law unto itself? When the Times published its December 16 exposé of the secret National Security Agency electronic surveillance of al Qaeda-related communications, reporters James Risen and Eric Lichtblau noted that they had granted anonymity to the "nearly a dozen current and former officials" who were the sources for the story. Risen and Lichtblau stated that they had granted these sources anonymity "because of the classified nature of the program." Implicit in the Times's rationale is the recognition that leaks of such classified information are illegal.

That recognition is, of course, correct. Section 793 of the federal espionage law prohibits authorized persons possessing "information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation . . . " from disclosing it to persons not entitled to it. Section 798 of the espionage law prohibits the disclosure of classified communications intelligence activities to unauthorized persons "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 . . . " The violation of these statutes is a felony. Because their disclosures to the Times may fall within these statues, the "current and former government officials" referred to in the Risen/Lichtblau story sought the promise of confidentiality from the Times to protect their identity.

Assuming that these statutes apply to the leaks involved in the NSA story, has the Times itself violated the statutes and committed a crime? The answer is clearly affirmative. Section 798, for example, makes knowing and willful "publication" of the proscribed information a crime. Moreover, under the basic federal aiding and abetting statute--18 U.S.C. S 2--in willfully helping the leakers publish their disclosures, the Times is as culpable as they are, and punishable as a principal.

Which raises the question: Does the First Amendment afford the Times immunity from criminal liability for its conduct? In New York Times Co. v. United States, 403 U.S. 713 (1971; otherwise known as the Pentagon Papers case), the Supreme Court held that it was presumptively unconstitutional for the government to restrain the publication of classified information. In separate opinions concurring with or dissenting from the order allowing the Times to continue publication of its Pentagon Papers stories, however, a majority of the justices contemplated that the Times could be held responsible for any violation of the law involved in publishing the stories.

Indeed, in their concurring opinions, Justices Douglas and White cited and discussed Section 798 as the prototype of a law that could be enforced against a newspaper following publication of information falling within the ambit of the statute. Justice White noted, for example:

The Criminal Code contains numerous provisions potentially relevant to these cases [against the Times and the Washington Post.] Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint. . . .

It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information. It has not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings.

In a Boston Phoenix article, "The Gray Lady in shadow," civil liberties lawyer Harvey Silverglate counts five Pentagon Papers justices in accord with the basic proposition that, while prior restraint is essentially prohibited, post-publication criminal responsibility is not. Silverglate observes that five of the nine justices (White, Stewart, Blackmun, Burger, and Harlan) would have approved of criminal prosecution of the newspaper defendants in the Pentagon Papers case, even though a majority would not authorize a pre-publication injunction. That observation is clearly correct, but conservative. Justice Marshall's concurring opinion is also consistent with White's analysis. It is fair to conclude that the Times is not immune from criminal liability for violation of the federal espionage laws under the Pentagon Papers case.

WHILE THE PENTAGON PAPERS CASE is still good law, it is not the last word. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that the First Amendment protected the publication of lawfully obtained information that was itself obtained illegally. The Court held that federal law making it a crime to intercept and disseminate telephone conversations cannot constitutionally be applied to the media when they report on matters of public concern.

Does Bartnicki suggest that the Times is constitutionally immune from prosecution under the espionage laws? The Court's fundamental factual predicates in Bartnicki were that the media defendants played no part in the underlying illegal conduct and that their access to the information was obtained lawfully. In the case of the NSA leaks, however, the disclosures to the Times were themselves illegal; it is the fact that the Times is not entitled or authorized to receive information provided to it regarding the NSA surveillance program that makes disclosures to the Times illegal under sections 793 and 798. Because Bartnicki is readily distinguishable from the facts involved in the Times's disclosure of the NSA surveillance program, it appears that the Times is not constitutionally immune from criminal responsibility for its conduct.

SO WHAT WAS the Times thinking when it published the Risen/Lichtblau story? Times executive editor Bill Keller purports to have satisfied himself that the publication of the story did "not expose any technical intelligence-gathering methods or capabilities that are not already on the public record." In his December 17 radio address, however, President Bush flatly asserted that publication of the story "damages our national security and puts our citizens at risk." It is doubtful that even Keller believes that he is in a better position than the president to judge the consequences of the publication of the story. Earlier this month, Time's Joe Klein reported:

It would have been a scandal if the NSA had not been using these tools to track down the bad guys. There is evidence that the information harvested helped foil several plots and disrupt al-Qaeda operations.

There is also evidence, according to U.S. intelligence officials, that since the New York Times broke the story, the terrorists have modified their behavior, hampering our efforts to keep track of them--but also, on the plus side, hampering their ability to communicate with one another.

In his autobiography Radical Son, former Ramparts editor David Horowitz recounts an incident involving the magazine's 1972 receipt of a draft article by a pseudonymous National Security Agency employee. Horowitz characterizes his involvement in the publication of the article in Ramparts as "the most shameful or humiliating thing I ever did."

In the article, the NSA employee revealed that the agency had cracked the Soviet intelligence code and could read Soviet electronic communications at will. Deliberating over whether publication of the article might subject the magazine editors to prosecution under the espionage laws, Horowitz consulted prominent Harvard law professor Charles Nesson. (Nesson denies recollection of the conversation recounted by Horowitz.) Nesson was then working as a member of Daniel Ellsberg's defense team in connection with the government's prosecution of Ellsberg for removing copies of the Pentagon Papers and turning them over to the Times--the incident underlying the Pentagon Papers case itself. Horowitz relates that Nesson advised him that publication of the article would violate the law. In addition to providing certain technical guidance, according to Horowitz, Nesson advised:

To make its case in a court of law, the government would have to establish that we had indeed damaged national security. To do so, it would be necessary to reveal more than the government might want the other side to know. In fact, the legal process would force more information to light than the government would want anybody to know. On balance, there was a good chance that we would not be prosecuted. I had just been given advice by a famous constitutional law professor on how to commit treason and get away with it.

One wonders if the Times relied on similar advice regarding its publication of the NSA surveillance story.

Scott Johnson is a contributing writer to THE DAILY STANDARD and a contributor to the blog Power Line.