The Magazine

Leaks and the Law

The case for prosecuting the New York Times.

Jul 3, 2006, Vol. 11, No. 40 • By GABRIEL SCHOENFELD
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CAN JOURNALISTS REALLY BE PROSECUTED for publishing national security secrets? In the wake of a series of New York Times stories revealing highly sensitive counterterrorism programs, that question is increasingly the talk of newsrooms across the country, and especially one newsroom located on West 43rd Street in Manhattan.

Last December, in the face of a presidential warning that they would compromise ongoing investigations of al Qaeda, the Times revealed the existence of an ultrasecret terrorist surveillance program of the National Security Agency and provided details of how it operated. Now, once again in the face of a presidential warning, the Times has published a front-page article disclosing a highly classified U.S. intelligence program that successfully penetrated the international bank transactions of al Qaeda terrorists.

Although the editors of the Times act as if prosecution is not a possibility, not everyone concurs. One person who is still mulling the matter over is Attorney General Alberto Gonzales. Asked in late May about the prospect of prosecuting the Times and others who publish classified information, he by no means ruled it out. "There are some statutes on the books," he said, "which, if you read the language carefully, would seem to indicate that that is a possibility."

Unsurprisingly, given what is at stake, even that tentative opinion elicited a fire and brimstone denunciation from the Times. An editorial on May 24 dismissed as "bizarre" the attorney general's "claim that a century-old espionage law could be used to muzzle the press." It has long been understood, added the newspaper, that the "overly broad and little used" Espionage Act of 1917 applies only to government officials and "not to journalists."

But this interpretation, even if it were accurate (which it is not), is entirely beside the point. The attorney general did not mention the 1917 Espionage Act or any other specific law. But if the editors of the paper were to take a look at the U.S. Criminal Code, they would find that they have run afoul not of the Espionage Act but of another law entirely: Section 798 of Title 18, the so-called Comint statute.

Unambiguously taking within its reach the publication of the NSA terrorist surveillance story (though arguably not the Times's more recent terrorist banking story), Section 798 reads, in part:

Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses 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 any classified information . . . concerning the communication intelligence activities of the United States . . . shall be fined not more than $10,000 or imprisoned not more than ten years, or both [emphasis added].

This law, passed by Congress in 1950 as it was considering ways to avert a second Pearl Harbor during the Cold War, has a history that is highly germane to the present conduct of the Times. According to the 1949 Senate report accompanying its passage, the publication in the early 1930s of a book offering a detailed account of U.S. successes in breaking Japanese diplomatic codes inflicted "irreparable harm" on our security.

The Japanese responded to the book's revelations by investing heavily in the construction of more secure codes. Thanks to the ensuing Japanese progress, the report concludes, the United States was unable to "decode the important Japanese military communications in the days immediately leading up to Pearl Harbor." In other words, the aerial armada that devastated our Pacific Fleet had the skies in effect cleared for it by leaks of classified information.

Leaks of communications intelligence secrets pose an equivalent danger today. The 9/11 Commission identified the gap between our domestic and foreign intelligence gathering capabilities as one of the primary weaknesses that left us open to assault. The NSA terrorist surveillance program aimed to cover that gap. The program, by the Times's own account of it, was one of the most closely guarded secrets in the war on terrorism. After it was exposed, a broad range of government officials privy to the workings of the program, including Democrats (such as Jane Harman of the House Intelligence Committee), said that the unauthorized disclosure inflicted severe damage on our ability to track al Qaeda.

Such leaks cause harm of a more general but no less consequential sort. In waging the war on terrorism, the United States depends heavily on cooperation with allied intelligence agencies. But when our own intelligence services demonstrate that they are unable to keep shared information under wraps, international cooperation grinds to a halt.

This is a matter not of idle conjecture but of demonstrable fact. During the run-up to the Iraq war, the United States was urgently attempting to assess the state of play of Saddam Hussein's program to acquire weapons of mass destruction. One of the key sources suggesting that an ambitious WMD buildup was underway was an Iraqi defector, known by the codename of Curveball, who was talking to German intelligence. But Washington remained in the dark about Curveball's true identity, and the fact that he was a serial fabricator.

Why would the Germans not identify Curveball? According to the Silberman-Robb WMD Commission report, they refused "to share crucial information with the United States because of fear of leaks." In other words, some of the blame for our mistaken intelligence about Iraq's WMD program rests with leakers and those in the media who rush to publish the leaks.

Given the uproar a prosecution of the Times would provoke, the attorney general's cautious approach is certainly understandable. But what might look like a prudent exercise of prosecutorial discretion will, in the face of the Times's increasingly reckless behavior, send a terrible message. The Comint statute, like numerous other laws on the books limiting speech in such disparate realms as libel, privacy, and commercial activity, is fully compatible with the First Amendment. It was passed to deal with circumstances that are both dangerous and rare; the destruction of the World Trade Center and the continuing efforts by terrorists to strike again have thrust just such circumstances upon us.

If the Justice Department chooses not to prosecute the Times, its inaction will turn this statute into a dead letter. At stake here for Attorney General Gonzales to contemplate is not just the right to defend ourselves from another Pearl Harbor. Can it really be the government's position that, in the middle of a war in which we have been attacked on our own soil, the power to classify or declassify vital secrets should be taken away from elected officials acting in accord with laws set by Congress and bestowed on a private institution accountable to no one?

Gabriel Schoenfeld is senior editor of Commentary. This article is adapted from his June 6 testimony before the Senate Judiciary Committee.