Did the New York Times break the law with its wire-tapping story?
11:00 AM, Jan 24, 2006 • By SCOTT W. JOHNSON
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.