All the News That's Fit to Prosecute

"DISGRACEFUL" is what President Bush called the New York Times for compromising the sources and methods by which the United States has been tracking al Qaeda finances. The House of Representatives followed suit, condemning disclosures like those made by our leading newspaper for impairing "the international fight against terrorism" and exposing "Americans to the threat of further terror attacks." With two branches of government lambasting the Times, there can be little doubt that we are witnessing a clash between the authorities and the media on a scale not seen since the Pentagon Papers case.

Bill Keller, executive editor of the Times, has cast his newspaper's action as a means of protecting the public from potential depredations of the Bush White House in the realm of personal privacy. "We remain convinced," says Keller, "that the administration's extraordinary access to this vast repository of international financial data, however carefully targeted use of it may be, is a matter of public interest." But the congressional rebuke of the paper makes it clear that the American people, speaking through their representatives, are more distressed by the help given to al Qaeda by the Times than by some purely hypothetical danger to civil liberties.

A remaining question is whether the third branch of government, the courts, will also weigh in and sustain legal action against the New York Times. But before we can glean an answer to that, charges would obviously need to be brought. Attorney General Alberto Gonzales has said that his subordinates are looking at the conduct of the newspaper and whether any statutes have been violated.

What are Justice Department attorneys likely to find?

There can be little doubt that if the information published by the New York Times on June 23 had been passed to an al Qaeda operative on a microdot, an espionage prosecution would have been immediately launched. Can it really be that publishing the same facts on the front page of a newspaper, and thereby purveying them to all members of al Qaeda at once, is perfectly legal?

Bizarre though it may seem, the answer is unclear. In the history of our country, there has never a been a successful prosecution of a journalist for publishing secrets. But we are now engaged in an intelligence war in which secrecy regarding counter terrorism methods is crucial to avoiding a repetition of the catastrophe of September 11. The behavior of the New York Times has made the question inescapable: Can the editors of a great newspaper arrogate to themselves the right to be the final arbiter of what is secret and what is not?

Existing law would seem to make it nearly impossible to prosecute a newspaper for publishing classified information. The problem is not the First Amendment. The Supreme Court has decided in numerous cases that the guarantee of a free press is compatible with a variety of restrictions on what can and cannot be printed, as in the laws of libel or obscenity or truth in advertising. As Joseph Story put it in his classic commentary on the Constitution, the idea that the First Amendment "was intended to secure every citizen an absolute right to . . . print whatever he might please, without any responsibility, public or private . . . is a supposition too wild to be indulged by any rational man."

In the area of national security, this view has been upheld by the Supreme Court. Even as they ruled in the Pentagon Papers case that prior restraint of the press was almost always impermissible, five justices held open the possibility of after-the-fact prosecution of the Times for publishing secrets. "It is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy," was how Justice Potter Stewart put the rationale for restricting speech in this realm. There is, then, no constitutional barrier to prosecuting the Times. The question is, rather, whether there are laws on the books that would enable prosecution.

The problem here is that, although we have laws protecting special categories of ultra-sensitive secrets, there are no laws that would seem to apply to the Times in this most recent instance. For blowing the NSA terrorist surveillance program back in December, the Times exposed itself to potential prosecution under a narrowly drawn law, Section 798 of Title 18, the so-called Comint statute, that protects communications intelligence. But the Times's more recent story on the tracking of al Qaeda financing does not readily fall under any statutory proscription. Nor would, to take another injurious leak, the Washington Post story of last November by Dana Priest reporting the existence of clandestine CIA prisons for al Qaeda operatives in Eastern Europe.