Friday, May 26, 2006

Prison or Pulitzer?

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:

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.

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:

Whoever knowingly and willfully communicates ... any classified information ... concerning the communication intelligence activities of the United States

Is there any question that the NY Times broke this law? It seems pretty clear-cut to me.

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?



Kevin said...

If the intercepted unsecured calls have provided valuable intelligence, then it is reasonable to believe that publishing information of that fact could alert criminals and thus be detrimental to comint.

But what if the surveillance was illegal? It seems that the NYT has essentially bet that the NSA's surveillance is illegal or that The People's representatives will make it illegal, perhaps hoping that would grant them a reprieve for their violations of National Security.

The end of the The Weekly Standard article implies that the government might not prosecute a case because it could require that classified evidence be made public. I thought there were ways of closing evidence to the public?

In answer to your three points:

(1) I think the NYT could be prosecuted.

(2) I don't think the First Amendment would apply to expressions that endanger people. If it could apply in this case, then Section 798 et al. would be unconstitutional, which seems unlikely.

(3) Schoenfeld makes a good argument that the NYT case has more merit than the AIPAC case, though I'm not well versed in either. But it's also possible that the Administration wouldn't want to risk losing the case, exposing classified information, or a finding that the NSA's surveillance is illegal. Alas, I don't know enough to advise the Administration.

But I wonder, what should the NYT have done differently to still bring this conversation to the public forefront with the same gravity? Is there a way for a Republic or Democracy to address such exigent issues without endangering National Security?

Mark Congdon said...


In answer to your last question, I think there is a very clear way for a group like the NY Times to challenge the legality of a classified government program that they learn about, without breaking the law in the challenge. How?

Don't challenge it in the press. Use the courts, the whole "balance of power" thing.

File a lawsuit against the government, a suit which will almost certainly be sealed by the court until its completion. Keep it within the realm of the courtroom, until the issue is decided one way or the other.

If the courts find the administration guilty, then it will all certainly come to light. If the courts find the administration innocent, then the secrecy and effectiveness of the intelligence gathering will be protected.

This doesn't play well in our modern tabloid-ish news culture. Having to wait until the outcome is decided before reporting, rather than building up the story with constant exposes and postulations, is very counter-cultural. But it is a good, effective, legal way to handle the situation.


Kevin said...

I don't know if I've ever seen a media outlet sue to determine legality prior to publication. I'm not sure how it would work, or even whether our judicial system is geared to work so preemptively.

e.g. From the other side, I think it was The Weekly Standard article that indicated that the government is not permitted to obtain an injunction to prevent the publication of a particular article, but only to challenge it after publication.

Under current law, I doubt it is in the Paper's best interest to sue, and, as I mentioned previously, The Weekly Standard article also seems to suggest that a legal battle might not be in the government's best interest either. The Paper would lose time, money, resources, and probably even lose the story to other outlets.

Furthermore, they probably don't know enough details to prove their case. For example, it seems to be an open question whether the NSA only intercepted calls on foreign ground. Even if they did have sufficient evidence, it is probably classified and perhaps illegally obtained, exposing themselves and their sources to prosecution.

But maybe Congress could pass laws to encourage the judicial course of action you suggest? Perhaps someone with a more thorough knowledge of the law can shed some light on this idea.

Mark Congdon said...


To clarify, I wasn't suggesting that the paper or the reporters sue to preemptively determine the right to publish. I was suggesting that they directly challenge the legality of the program. I don't think there would be anything illegal in presenting their information (however they received it) in a court of law. If I'm reading the law correctly, what is illegal for them to do is to publish the information.

Furthermore, they probably don't know enough details to prove their case.

Then, by all means, they have no good reason compromising national security!

maybe Congress could pass laws to encourage the judicial course of action you suggest?

Sounds like a great idea. Maybe some sort of special proceeding where suspected illegal (and classified) activities by the executive branch can be brought anonymously to a secret court, which would be able to commission an investigation by the legislative branch or a special prosecutor or something of that sort, all in secret until the issue was decided.

I would be all for that, especially if it went along with other provisions to make it easier and safer for the government to prosecute those who reveal classified secrets in the press without having to risk revealing other classified information.

Give both sides more power, to protect our secrets and (using the balance of powers in our different branches of government) our liberties... I think it's a great idea.