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Exposure

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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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.