“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.
A prosecutor itching to rein in the press might consider invoking the nearly century-old Espionage Act, but would probably reject it as a near miss. Congress’s intent in passing this law, it is fairly clear, was to stop classic acts of espionage, not leaks to the press. But the law’s drafters in 1917 were so clumsy that the plain language of the statute would make prosecution of a journalist hypothetically possible.
Successful prosecution in these recent instances is another matter. Among other limitations, the Espionage Act requires that an offender acted “willfully” to injure the United States or to advantage a foreign country. In the case of a journalist publishing secrets out of a belief that he was promoting the “public interest”–the Times‘s stated reason for acting as it did–it would be an uphill struggle, on the slopes of the Matterhorn, for a prosecutor to demonstrate the requisite criminal intent.
If so, and given the steady accretion of dangerous leaks, should Congress now act to tighten the laws? This is a tough call.
To begin with, not all leaks are so damaging as these most recent ones have been, and some actually do quite a bit of good. By publishing leaks, the media can play an invaluable role in bringing vital information and instances of government misconduct before the public. Even if critics are not ready to stand up and applaud the New York Times for publishing the Pentagon Papers, they must nevertheless concede that, despite the dire warnings by the Nixon administration, no direct harm to our national security ensued from any revelations contained in the 47 volumes of classified documents that Daniel Ellsberg purloined and passed to the paper.
At a minimum, a revised law would have to enable newspapers to contend in court that the information they disclosed was improperly designated as secret and that its disclosure did no harm. But the judicial branch, lacking expertise in foreign policy, is ill-equipped to make considered decisions about what constitutes injury to national security. Furthermore, in the course of proving improper classification in a courtroom, a torrent of secret information might have to be revealed. The phenomenon of “graymail,” in which successful prosecution hinges on the release of yet more closely guarded secrets, would become an epidemic.
It should also be borne in mind that preserving things as they are is not without benefits. Even though the 1917 Espionage Act is vague and even unintelligible at junctures, it is by no means impossible to deploy it against the press. During World War II, the law came close to being used by the Roosevelt administration to prosecute the Chicago Tribune for revealing, directly after the Battle of Midway, the devastatingly vital secret that the United States had succeeded in breaking Japanese naval codes. The case against the Tribune was very strong. A grand jury was impaneled, but the process was called off for fear of drawing notice to a story that evidently had escaped Japanese attention.
The case of the New York Times is not entirely dissimilar. Like the isolationist Chicago Tribune, which in opposing the Roosevelt administration’s foreign policy published damaging leaks at every turn, the New York Times has also been determinedly engaged in what amounts to a pattern of illicit behavior. And given the fact that in both its NSA and the terrorist-financing stories the newspaper was warned in advance by ranking executive branch officials, in clud ing (in the NSA case) the president, that publication would assist al Qaeda and cause injury to national security, proving that the newspaper acted “willfully” to harm the United States might not be quite as difficult as has been generally assumed.
What is more, the ambiguous nature of the Espionage Act has over the years served us reasonably well. Although there were plenty of egregious leaks throughout the Cold War, there were also limits beyond which the press would not generally step. A kind of gentlemen’s agreement was in place that allowed the imperatives of national security to coexist, however uneasily, with the ambitions of a muckraking media. The 1971 Pentagon Papers case is the most notorious of several exceptions, but in that episode, the secrets in question were of a historical nature; not one of the documents at issue was generated after 1968, and the courts could not discern a legal basis for the prior restraint on the New York Times that the Nixon administration so imprudently requested.
Given all this, the remedy for our current dilemmas probably does not lie in drafting new legislation. It would be far better to see that existing law is stringently enforced. Here, a prosecution of the Times under Section 798, the Comint statute, for its NSA terrorist surveillance program stories would seem to be in order. The facts fit the law, and legal action would have a welcome chilling effect on the Times and anyone else in the media tempted to disclose further secrets concerning active, ongoing counterterrorism programs in the highly sensitive realm of communications intelligence.
Even more important, the leakers inside government of the various classified programs should be investigated and prosecuted. Those who violate their oaths to protect secrets are taking the law into their own hands and putting the rest of us at risk. Far from being admirable “whistle-blowers,” the leakers are, for the most part, rather cowardly. Their insistence on the cloak of anonymity means that they are all too willing to jeopardize the security of their country but unwilling to jeopardize the progress of their careers. As for journalists who rely on leakers for stories, they are at the very least witnesses to a crime.
The major media outlets have long maintained that reporters should enjoy a special exemption from being called as witnesses before a grand jury, on the grounds that if their promises of anonymity were rendered worthless by testimony given under subpoena, the free flow of information would be impaired. But the Supreme Court has not recognized a journalist’s privilege of that sort, nor should it now. In its 1972 Branzburg holding, the Court declared, “We cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.”
The leakers in the cases now under dispute are engaged in criminal conduct of a unique sort. It consists of disclosing to journalists matters that these government officials have solemnly promised, of their own free will, not to disclose to anyone. Prosecution of the leakers would obviously address the problem at its root. But uncovering them, when the only witnesses remain silent, has proven extraordinarily difficult. If identification of the leakers entails summoning reporters before a grand jury and compelling them to reveal their sources, we might see a pronounced shift in the journalistic calculus: The prospect of a contempt citation might make reporters think twice, if not about the damage they were doing to national security, then about the prospect of going to prison for a spell of 18 months.
In the end, just as editors must use discretion about which leaks to publish, prosecutors must use discretion about which ones to prosecute. Stanching the most pernicious of these leaks, and thereby vindicating the rule of law, is the right course in both principle and practice in these perilous times.
Gabriel Schoenfeld is the senior editor of Commentary.
