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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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.