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Bush Should Welcome a Fight with the Media

By Jack Kelly

The battle of Midway Island was the turning point of the Pacific War. Victory at Midway was possible because the U.S. had broken the Japanese naval code. The Chicago Tribune spilled the beans in a story that ran under the headline: "NAVY HAD WORD OF JAP PLAN TO STRIKE AT SEA."

President Franklin Delano Roosevelt was furious. He knew that if the Japanese read the story, they'd suspect their codes were compromised, and change them.

The president "initially was disposed to send in the Marines to shut down Tribune tower," wrote Harry Evans. "He was talked out of that, then considered trying (Chicago Tribune publisher Robert) McCormick for treason, which carried a death penalty in wartime."

A grand jury was empaneled, but prosecution was dropped because the Japanese were still using the Purple code, evidently having missed the story. The publicity from a trial would clue them in.

So Col. McCormick escaped prosecution. But with what the Chicago Tribune had done in mind, Congress in 1950 added Section 798 to the Espionage Act of 1917. It reads in part:

"Whoever knowingly and willfully communicates, furnishes, transmits...or publishes ...any classified information...concerning the communications intelligence activities of the United States...shall be fined not more than $10,000 or imprisoned not more than ten years, or both."

Section 798 applies specifically to what the New York Times did last December, when it published a story revealing that the National Security Agency was listening in on calls from al Qaida suspects abroad to people in the U.S.

Last week the New York Times struck again, revealing details about how the U.S. tracks terrorist financing through a consortium in Belgium. Because of the worldwide publicity these stories generated, there can be no doubt al Qaida is aware of them, and will change its practices because of them.

"You have gravely endangered the lives of my soldiers," wrote Lt. Tom Cotton, an Army officer stationed in Iraq, in a letter to the Times.

"The next time I hear that familiar explosion...I will wonder whether we could have stopped that bomb had you not instructed terrorists how to evade our financial surveillance."

"Without money, terrorism in Iraq would die because there would no longer be supplies for IEDs...and no motivation for people to abandon regular work in hopes of striking it rich after killing a soldier," wrote Army Sgt. T.F. Boggs in another indignant letter to the Times.

We spend tens of billions of dollars each year on (often not very good) intelligence. But all al Qaida needs to buy is a subscription to the New York Times.

President Bush indicated in remarks Monday he is as angry at the Times as FDR was at the Chicago Tribune. The question is, will he do anything about it?

The reason why President Roosevelt dropped his prosecution of Col. McCormick doesn't apply. Al Qaida can learn nothing more from the publicity of a trial than it knows already.

The administration has sound legal grounds for prosecuting the Times under the Espionage Act, Gabriel Schoenfeld argued in a lengthy essay in Commentary in March. Attorney General Alberto Gonzalez said last month this was a possibility.

Newsday columnist James Pinkerton thinks the Times should be prosecuted, but that the Bush administration lacks the political courage to do so. For the sake of the nation's security, the Times must be prosecuted. Our policy of going only after the leakers (and fitfully at that) obviously hasn't worked.

Prosecuting the Times also could be good politics. Americans are, at best, ambivalent about the war in Iraq. But solid majorities support the steps the president has taken to protect us in the broader war on terror. For instance, shortly after the Times exposed the NSA intercept program, a Rasmussen poll indicated 64 percent of Americans supported it. Only 23 percent were opposed.

Ordinary Americans are furious with the Times both for what it has done, and for its arrogance in doing it. And journalists don't have much popularity to lose. In a Harris survey in March, only 14 percent of respondents expressed a "great deal" of confidence in the press, while 34 percent had "hardly any."

In picking a fight with journalists over leaks, President Bush would be picking on one of the few groups in America less popular than he is, on the issue where he is on the firmest ground with the public.

Media uproar over prosecution of the Times would drown out other issues where the president is on shakier ground. This is a fight to be welcomed, not avoided.


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