Earlier this week, my brother Brad forwarded me an editorial from the LA Times, Weak on leaks by Gabriel Schoenfeld. The editorial makes a compelling argument that the reporters from the NY Times who broke the story about the government's wiretapping of international phone calls (and won a Pulitzer Prize for it) should be prosecuted under the law.
Schoenfeld compares two laws. The first, Section 793 of the Espionage Act, is currently being used to prosecute two officials of the American-Israel Public Affairs Committee for passing on classified information. Schoenfeld describes Section 793 as "vague" and "sloppily drafted". I found the text of the law in question, and the link to it is above. Read it, and see if you agree with Schoenfeld's analysis. I do.
The second law is Section 798 of the act, which has a different history. Here's how Schoenfeld describes it:
Again I read the law in question, and again it appears to me that Schoenfeld's analysis is accurate. Here's the relevant aspects of the law:
One of the more extraordinary features of this comint provision is that it was the fruit of a compromise, drawn with the very purpose of protecting public discussion of national defense material from more draconian restrictions. In 1946, a joint congressional committee investigating the attack on Pearl Harbor had urged a blanket prohibition on the publication of government secrets. But Congress resisted, choosing instead to carve out an exception in the special case of communications intelligence, which it described as a category "both vital and vulnerable to an almost unique degree."
With the bill narrowly tailored in this way, the comint statute not only passed in Congress but, astonishingly in light of contemporary attitudes in the media, won the support of the American Society of Newspaper Editors. Unlike Section 793 of the Espionage Act, this comint statute is a model of clarity. If you publish classified information pertaining to communications intelligence, you have broken the law; it is nearly as simple as that.
Is there any question that the NY Times broke this law? It seems pretty clear-cut to me.
Whoever knowingly and willfully communicates ... any classified information ... concerning the communication intelligence activities of the United States
Is this law, or at least this particular case, a First Amendment issue? In January of this year, the Weekly Standard ran an article discussing primarily that issue. It discusses the 1971 Pentagon Papers case, and other cases that seem to apply to the situation, in more detail that I will attempt to recount here.
This all raises three interesting questions for me. (1) Are the NY Times and/or their reporters prosecutable under current law and precedent for their actions? (2) Should the NY Times and/or their reports be prosecutable, in light of the First Amendment? (3) If your answers to both of the first two questions are yes, would you recommend that the current administration carry out that prosecution?