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Is the New York Times About to be Indicted?

By James Piereson

Is The New York Times about to be indicted? That would be a fair inference from the strange exchanges that have gone back and forth over the past few days between the Justice Department and the editors of the paper.

On Sunday, during the ABC news program, "This Week," Attorney General Gonzales was asked if the federal government might prosecute journalists who published classified information.

"There are some statutes on the books," he answered, "which . . . would seem to indicate that this is a possibility." He went on to suggest that such prosecutions were implicitly authorized by the Congress when it passed the statutes. "We have an obligation to enforce those laws," he said. "We have an obligation to ensure that our national security is protected."

The Times, in reporting on this interview on Monday in an article by Adam Liptak, quoted the Attorney General at length, but suggested that the espionage laws in question had been written to apply to government officials who leaked classified information and not to journalists and newspapers that might have published it. In this context, Liptak referred to a pending prosecution of two representatives of the American Israel Political Action Committee who were charged under the Espionage Act of 1917 with conspiracy to transmit classified material to members of the media and to a foreign diplomat. It is true that the Espionage Act has never been invoked as a basis for prosecuting reporters. One might argue, as many have, that there is a national interest in promoting debate about defense and security policy and that such debate would be impeded by the prosecution of journalists. At the same time, the two AIPAC officials are not government employees but rather (alleged) recipients of classified material. As their lawyer pointed out a pre-trial hearing, "James Risen won a Pulitzer Prize for what my clients have been indicted for."

The Times next weighed in with an editorial on Wednesday in which the editors picked up this particular theme. The editorial stressed that Mr. Gonzales was mostly blowing hot air because the Espionage Act could not be applied to journalists. Revealing some sensitivity on this issue, however, the Times went even further in its editorial to suggest that the Bush administration was in no position to invoke congressional statutes since, in the view of the editors, it had routinely violated them in authorizing wiretaps without warrants and in failing to enforce civil rights and environmental laws. If the Bush administration can ignore the laws, the editors seemed to ask, why can't we? The editorial reads much like a pre-emptive strike designed by lawyers to ward off impending indictment. In that case, however, the editors may have gone too far in implying that they have as much right as the government to determine what the laws are and which ones deserve to be obeyed.

The issue here is whether or not the Times, along with two of its writers, James Risen and Eric Lichtblau, violated federal laws when it published an article last December revealing that President Bush had authorized the National Security Agency to monitor communications inside the United States without first obtaining warrants. The authors, along with the Times editorialists, assert that President Bush violated the Foreign Intelligence Security Act (FISA) of 1978 by authorizing wiretaps inside the country without warrants. The President, for his part, has defended his actions on the grounds that the communications in question originated abroad and were thus international rather than domestic in character. He has insisted that these steps were required to defend national security against planned terrorist attacks; and he has further pointed out that relevant committees in Congress were notified of the policy. Still further, he requested the paper to withhold publication of the information on national security ground -- a plea that the editors turned aside. Thus, the editors cannot claim that they published the article without prior knowledge of the importance of the information contained therein. Afterwards, the President called the publication of the article a "shameful" act that compromised national security.

Risen subsequently published a book based on his reporting under the title, State of War: The Secret History of the CIA and the Bush Administration (Free Press). Risen won a Pulitzer Prize this year for his reporting on this issue; and perhaps it might be said that the Pulitzer committee, in confirming this award, was itself providing some pre-emptive protection for the paper against possible prosecution. At a pre-trial hearing for the AIPAC defendants, their lawyer pointed out that "James Risen won a Pulitzer Prize for doing what my clients have been indicted for."

The best reporting on this particular issue has been done by Gabriel Schoenfeld who first raised the possibility of prosecution in his article, "Has the New York Times Violated the Espionage Act?" in the March issue of Commentary magazine. After reviewing the various precedents, he acknowledges that it would be difficult, though not impossible, to prosecute the Times under the Espionage Act.

However, Schoenfeld points to a second statute, approved by Congress in 1950, that is more relevant to the question at hand -- Section 798 of the US Criminal Code dealing with the "Disclosure of Classified Information." This statute made it a federal crime for any unauthorized person to publish classified information "concerning the communication intelligence of the United States or any foreign government." The statute was carefully crafted, as Schoenfeld points out, to focus on the vitally important area of communications intelligence (or "comint" as it is called in the trade), which was defined as "all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients." The Congress understood that intelligence on the activities of foreign adversaries would dry up if they are tipped off as to what information we have and by what means we gathered it. Thus, the disclosure or publication of classified communications intelligence was singled out by Congress as a violation of the law.

It seems plain, as Schoenfeld concludes, that the Times (and not only the Times) has violated this section of the Criminal Code in the paper's disclosure of the government's communications intercepts. In a follow-up article in Monday's Los Angeles Times, Schoenfeld reports further on this possibility and urges the Justice Department to investigate these possible violations with greater seriousness. He reports that the FBI has not yet interviewed anyone from The New York Times in connection with the leaks that led to its story on the NSA's communications intercepts. On the other hand, the Attorney General's comments on Sunday suggest that the issue is now being taken very seriously indeed, and at the highest levels.

The editors of the Times do not mention the possibility of a prosecution under the 1950 statute dealing with "comint" as they understandably preferred to focus on their presumptive safe haven under the Espionage Act. There is little doubt, too, that Attorney General Gonzales had this statute in mind when he referred on Sunday to "certain statutes on the books" which would make it possible to prosecute reporters and newspapers.

Yet one wonders if the Bush Administration would really dare to take the unprecedented step of prosecuting an institution like The New York Times. It certainly seems doubtful. A chorus of protest about its "chilling effects" on free speech would erupt following any such indictment. On the other hand, this administration has dared to do some things that conventional opinion said could never be done. We know further that, following the terrorist attacks in 2001, the administration has regarded national security to be its principal obligation to the American people.

In view of their editorial on Wednesday, the editors of the Times must believe that a prosecution is a real possibility. One obvious reason for concern is that the indictment of corporations often turns out to be a death sentence, as it was with Arthur Andersen & Co., which was forced to fold even though the indictment under which it was prosecuted was later thrown out on appeal. Time will tell. In the meantime, the unfolding story will be fascinating to watch.

James Piereson is an occasional contributor to The New Criterion.

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