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The Case for Prosecuting Journalists

The Journal Editorial Report

Paul Gigot: This week on "The Journal Editorial Report," chaos in the Middle East. Israel engages in a two-front battle with Hamas and Hezbollah, raising fears of an all-out regional war. Plus the controversy continues over what's fit and unfit for newspapers to print. Can and should journalists be prosecuted for publishing national-security secrets? And the incredible shrinking deficit. A boom in revenues has President Bush touting the success of his tax cuts. But first, these headlines.

Gigot: Welcome to "The Journal Editorial Report." I'm Paul Gigot. A dramatic escalation of the conflict in the Middle East this week. Israel responded to the kidnapping of two soldiers by members of the Lebanese-based Hezbollah by striking and blockading that country by land, air and sea. Palestinian president Mahmoud Abbas said Israel's incursion into Lebanon has raised the specter of a large-scale regional war, and urged world powers to intervene. Joining the panel this week, foreign affairs columnist Bret Stephens, deputy editor Melanie Kirkpatrick and editorial board member Steve Moore. Bret, Hezbollah did this incursion and kidnapping at the same time Israel was preoccupied with fighting Hamas in the south. Why would Hezbollah do this now?

Stephens: Well, let's remember the broader context. Six years ago, Israel pulled completely out of Lebanon to an internationally recognized border. A year ago, Israel pulled out of Gaza to the border between--the traditional border between those two areas. In the intervening 11 months, Hamas has been firing missiles--ineffectually, but firing missiles into Israel. Last month, they killed two Israeli soldiers and took another soldier hostage. Israel invaded the Gaza Strip to try to find the soldier and punish Hamas.

Hamas has a strategic relationship with other Islamic fundamentalist groups in the region, including Hezbollah. Hezbollah, which operates out of Lebanon also has strong ties was Syria. The headquarters, Hezbollah--Hamas has its headquarters in Syria. Hezbollah has ties there. Hamas was under very severe pressure from Israel in the Gaza Strip.

Gigot: So this is a deliberate attempt to open a second front to pressure Israel further?

Stephens: That's correct.

Gigot: And who is pulling the strings here? Is this Iran and Syria? Or is Hezbollah acting on its own?

Stephens: Well, this is something that people need to understand about Hezbollah. Hezbollah pretends to be a Lebanese political group with a militia, a separate militia. I visited Hezbollah's headquarters last year in Beirut. And this was at a time when the Syrian army had just pulled out. There was a great feeling of Lebanese patriotism in the city.

Gigot: Height of the so-called cedar revolution.

Stephens: Exactly.

Gigot: Lebanese patriotism.

Stephens: That's exactly right. Everywhere, you saw Lebanese flags, portraits of the martyr, Lebanese prime minister Rafik Hariri. We went to the Hezbollah headquarters in south Beirut. There were no Lebanese flags. There were just two portraits. The portraits were of the Ayatollah Khomeini and of the Ayatollah Khamenei, the former and current leaders of Iran. Hezbollah answers principally to Iran and Iran's ally, Syria. That is what--those are the real powers that are essentially using Hamas and Hezbollah as their proxies in fighting Israel.

Kirkpatrick: Well, just last weekend, Iran hosted a group of Middle Eastern neighbors in Tehran, and the president of Iran warned of a vast explosion to come in the region. It kind of makes you wonder what he was thinking of, what he knew that the rest of the region didn't know.

Gigot: Signaling that they were going to do this?

Kirkpatrick: Yes, yes, precisely. Syria really is the center of gravity for terrorism, and particularly for Hezbollah. And it supports both terrorist incursions into Iraq. It is supporting Hezbollah in Lebanon. And if you look at southern Lebanon, there are munitions dumps there. There are communications centers. It is--there's, you know, a lot of activity by terrorists there.

Gigot: What's the game here that Iran is playing? Some people say they want to distract attention from the G-8 summit and the focus on Iran. But I think it might also be trying to send a message to Israel and U.S., saying, Look, if you attack us for our nuclear weapons, we may in fact make life very difficult for you.

Stephens: Well, that's right. This week, Iran's nuclear file was referred again to the U.N. Security Council, and I don't think it's entirely accidental that Hezbollah decided to act. I mean, the stakes are very high for both sides, including not just for Israel, but for Hezbollah and for the Iranians. And that's precisely the message the Iranians want to send, that we can trigger a broader Middle East war unless--if we don't get our way at the U.N. and with the U.S. over the nuclear issue. I think that's a large part of what's happened.

Kirkpatrick: I think it's really important to note here, though, that the Middle Eastern countries are not united against Israel.

Gigot: On this particular incursion.

Kirkpatrick: At this particular incursion. That Saudi Arabia referred to Hezbollah's irresponsible behavior. Egypt and Jordan have also made noises of criticism about what's going on. The last thing they want to see is a resurgent Iran in the region.

Stephens: Well, that's exactly it. And the other country that bitterly resents what Hezbollah is doing is Lebanon. Lebanon just became a sort of--just freed itself of Syrian occupation. They have a weak democratic government. They--which isn't powerful enough to disarm Hezbollah, which is in effect more powerful even than the Lebanese army. And they have been searching for a way to force Hezbollah to abide by the various accords, including the 1989 Taif accord, which ended the Lebanese civil war, and U.N. Security Council Resolution 1559, which requires all of those internal militias to disarm and all foreign powers to leave Lebanon. An interesting point: Iran is said to have hundreds of military personnel in Lebanon training Hezbollah.

Gigot: What about the American response here? President Bush did cite Syria and Iran as the culprits here, but he also--Condoleezza Rice said--called for restraint on all sides, which really, when the U.S. speaks like this, means restraint against the Israelis. Is that the right response?

Stephens: I think that's a very unfortunate response, and it builds on a sort of pattern of not only international fecklessness in response to this situation, but the fact that the Bush administration has really taken its eye off the ball with Lebanon and with Syria in the last year. Remember, Syria was under enormous pressure with the Rafik Hariri investigation. That has gone nowhere. And now the Bush administration is acting as if Israel is equally at fault here.

Gigot: And now it's going to have to do something. All right, thank you, Bret. When we come back, leaks and the law. Can and should journalists be indicted for publishing national-security secrets? Our guest this week makes a case for prosecuting the New York Times. Plus, the White House slashes deficit estimates as federal revenues rise. Are the Bush tax cuts the reason? Our panel weighs in on those topics and our "Hits and Misses" of the week when "The Journal Editorial Report" continues.

Gigot: We continue the debate this week over the obligations of the press in wartime. In the wake of New York Times stories revealing highly sensitive counterterrorism programs, government officials and even some journalists are asking: Can journalists be prosecuted for publishing national-security secrets? Gabriel Schoenfeld is the senior editor of Commentary magazine. He testified before the Senate Judiciary Committee on this topic last month. Mr. Schoenfeld, welcome.

Schoenfeld: Thanks for having me.

Gigot: You're a journalist. And yet you think that the New York Times could be and probably should be prosecuted for disclosing these national-security bits of information. Why?

Schoenfeld: Well, we're in a very difficult struggle against these al Qaeda operatives, who want to strike us again. We know that. And in the battle against al Qaeda, intelligence is the most important friend. Now we have a situation where a major newspaper is taking upon itself the decision to publish and disclose our key counterterrorism measures. Back in December, the Times published a story revealing that we were wireless--

Gigot: Warrantless wiretapping. Schoenfeld: --warrantless wiretapping of al Qaeda communications across borders. More recently, they've disclosed our financial monitoring programs against al Qaeda. And according to even ranking Democrats, like Jane Harman on the House Intelligence Committee, they've caused critical damage to our ability to interdict ongoing al Qaeda operations against us.

Gigot: Now let me read to you a quote from Bill Keller, who's the executive editor of the New York Times, defending the most recent reports on the counterterrorism story. He said this: "We remain convinced 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." It's the public interest defense, unquote.

Schoenfeld: Well the Times is unilaterally deciding that it's in the public interest. But of course, the government, in waging this counterterrorism warfare, does have the right to keep secrets and to protect those secrets, and that's why I believe in particular in the NSA case, not so much in the Swift banking case, the government should act against not only the leakers but those who publish the leaks--in this case, the Times.

Gigot: All right. In Britain they have something called the Official Secrets Act, which specifically bars publication. We don't have that here. We have something called the First Amendment, and in the Pentagon Papers case of 20, 30 years ago, the Supreme Court expressly said the prohibition on publication should be very, very rare. Why are these cases different than that Pentagon Papers episode?

Schoenfeld: Well, in the Pentagon Papers case, the Nixon administration was trying to get prior restraint on the Times to not publish a story in advance. The court ruled that that could only be done under really grave circumstances, like you could not report about where troops were moving or ships were moving. And the Pentagon Papers documents were all historical in nature.

The NSA wiretapping story concerns an ongoing counterterrorism operation. And what's more, I'm not advocating prior restraint in that case, I think that the government would be entitled to prosecute the Times after the fact for publishing that information.

Gigot: Under what statutes? Is it the Espionage Act of 1917 or--

Schoenfeld: No, it's not the Espionage Act of 1917, which is a very, very confusing act and hard to understand. That part, people regard it as incomprehensible. There's a separate law in the books called Section 798, Title 18, which makes it a crime to publish classified information pertaining to this very narrow area of communications intelligence, which was what was at issue in the NSA wiretapping case.

Gigot: All right. Now you're a journalist and so am I, and I have to admit that I have published on occasion classified information. And what worries me is that if you--once you start prosecuting journalists, where do you stop? And couldn't this open up a Pandora's box where a political prosecutor anywhere could go after media they don't like? Where do you draw the line?

Schoenfeld: There has never been a successful prosecution of journalists in this country for publishing secrets. And I think--

Gigot: There have been?

Schoenfeld: There has never been.

Gigot: There has never been.

Schoenfeld: There has never been. So obviously, this is something in the law that would be employed only under very rare circumstances. That's right and proper. However, there are things that the government does have a right to protect. And communications intelligence is one of those. The identities of intelligence agents is another. Nuclear secrets is yet a third. And here's an area where the press should step back and, in the national interest, act as citizens first, not as journalists.

Gigot: So you trust prosecutors to show that kind of restraint?

Schoenfeld: The law--I just trust that the laws here are so narrowly tailored for these very specific areas. The Espionage Act, which is a very broadly written law, should not be employed for prosecutions of this sort, because--and it wasn't designed for that purpose in any case.

Gigot: But you raise this key point, which I think is the restraint of the press. And if you don't want to have an Official Secrets Act here, isn't the real answer, perhaps, instead of unleashing prosecutors, let's have the press show some responsibility? Understand that it has enormous power and enormous responsibility, and therefore, exercise some restraint in refusing to publish some of these stories, which are, as you say, very sensitive. Wouldn't that be a preferable answer?

Schoenfeld: Well, they--it has been a preferable answer. Throughout most of the Cold War, the press did on most occasions exercise restraint. I think we're seeing now in this very partisan atmosphere a breakdown of that restraint. The Times, of course, is arguing that it very carefully, you know, tailored the story so not to disclose any sources and methods. But I think the reaction from people in the know about these programs is that they were severely damaged by the Times stories. So with the restraint gone, we are left then with only legal recourse of two kinds. One is to prosecute the Times directly, and the other is to call Times reporters before grand juries to ask them to reveal their sources.

Gigot: And you bring up the sources, and just very briefly, that is a separate question. And the press has much less legal standing to protect its sources now after the case of Judy Miller and Valerie Plame. The government may go after those sources, correct?

Schoenfeld: Right. I think--and that's most likely what we'll see in this case. We probably--I very much doubt there will be a prosecution, although I think one is justified. But I think it's much more likely that the reporters at issue in this case, Eric Lichtblau and James Risen, will be brought before a grand jury and asked to reveal who told them secret information.

Gigot: All right, Gabriel Schoenfeld, thanks for being here. When we come back, President Bush touts the declining deficit as revenues flow into federal coffers. What's behind the windfall? Our panel weighs in when "The Journal Editorial Report" continues.

President Bush: We cut the taxes on the American people because we strongly believe that the American people should lead us out of recession. Our small businesses flourished. People invested. Tax revenues are up. And we're way ahead of cutting the federal deficit in half by 2009. As a matter of fact, we're a year ahead.

Gigot: President Bush, crediting his administration's economic policies with creating a tax revenue surge that is helping shrink the federal budget deficit. The windfall, which administration officials attribute largely to higher corporate profits and earnings by individual investors, allowed them to cut the 2006 deficit projection this week by 30%.

Steve, let me read you a couple of numbers. Individual income tax revenues up 14% this year, after rising 15% last year. Corporate revenues, 26%, after rising 47% last year. Five hundred billion dollar revenue increase over two years. That's more than even you make.

Moore: Yes.

Gigot: What do you think of those revenues? What's going on here?

Moore: I still feel underpaid. You know, somewhere up in heaven right now, your predecessor, Bob Bartley, is smiling as he looks down at these numbers, because you're right, we've seen record increases in revenue increases. And the interesting part about this--there's an old theory called the Laffer Curve, which suggests that sometimes when you cut tax rates, you spur economic growth and economic activity and you get more revenues in. And that's precisely what's happened in this occasion.

Gigot: Now your frequent sparring partner, Clinton former labor secretary Robert Reich, would say, Nonsense. Taxes don't matter. We proved that in the 1990s. So this is just the normal business cycle response. Would have happened anyway. How do you respond to that?

Moore: Well, if you look back when we had this debate in 1993--and remember that what spurred this growth, in my opinion, was the cut in the capital gains and dividend cuts. The response to that was a much stronger stock market. It was a much stronger business investment climate, and a much stronger job market. And when people work, and corporations make more profits, guess what? The government gets more revenues.

Gigot: Melanie, this is happening at the state level, too, isn't it? I mean, we're seeing some 40-some states in surplus.

Kirkpatrick: Yes, that's exactly right. And if Democrats in Washington haven't gotten the message, Democrats in some states have. Governors--Democratic governors of Arizona, of New Mexico and of Oklahoma have all cut taxes.

Gigot: And Rhode Island.

Kirkpatrick: Rhode Island.

Gigot: A very, very, blue state.

Kirkpatrick: Yes. Has also cut taxes. The Democratic Legislature has also cut taxes.

Gigot: The one--another criticism you hear is that, and I think this has some accuracy--is that spending is not under control yet. Even though revenues are coming in, spending this year is going up almost 9%. And defense spending, which we need to increase, is only going up about 7%. Are we are getting our handle on that at all?

Moore: No, unfortunately. I mean, you're right. The black cloud on this new report by the budget office was that we've got about 12% revenue growth, but spending is still growing at about three times the rate of inflation. By my calculations, if the Republican Congress and Republican president since 2000 had just held the rate of spending to the inflation rate, we would not have a $300 billion deficit. We would have a balanced budget now.

Gigot: Wow, what about longer term? We still have that big, big train coming at us in Social Security and Medicare obligations, the promises politicians have made. People say, "Oh, well." Some of the critics say, "Look, we can't keep these tax cuts, because we have to pay that down the road."

Moore: Well, the other big black cloud that we saw in that report is, guess what single area of the budget is growing fastest? Medicare. And that's because, of course, just a couple of years ago we passed this vast new entitlement program, prescription drugs for seniors. And the spending on that is exploding.

Gigot: Fifteen and a half percent so far this year, it's an astonishing amount. Bret, what's the impact of this politically, do you think? Not just this year, but sort of--this election, but for the longer run?

Stephens: Well, I don't know how much mileage Bush is going to get out of this. I mean, he deserves credit, but this administration has been remarkable for its inability to get credit for good economic news. But this does--this definitely does take the wind out of the sails of this very prevalent criticism from when Bush cut taxes in 2001 and 2003 that this was going to blow a hole in the deficit. Now even the New York Times has to give you a page-one story proving that's not true. That's healthy.

Moore: What Bush needs to do now is veto a spending bill. I think that, combined with the healthy revenues, would be a good message for the Republicans.

Gigot: All right, Steve, thanks. We have to take one more break. When we come back, our "Hits and Misses" of the week.

Gigot: Winners and losers, picks and pans, "Hits and Misses." It's our way of calling attention to the best and the worst of the week. Item one, Bret Stephens gives a miss to the antics of French World Cup soccer player Zinedine Zidane.

Stephens: Well, look, every sport in the world has its tradition of trash talking. Anyone who's played a sport knows that this begins sometime around the third grade, and most of them pretty much get over it. But that wasn't the case with Mr. Zidane, who head-butted an Italian player, allegedly because the Italian had insulted his mother. Now, all respect to Mr. Zidane's mother, of course, but there is such a thing as being a captain of the team, keeping your eye on the ball, and not losing the World Cup in front of two billion people. One silver lining: France loses.

Gigot: OK, Bret, thanks. Now Melanie Kirkpatrick with a defense of the beleaguered soccer star--Melanie?

Kirkpatrick: Chivalry is not dead. With all respect to you, Bret, I think if you'll excuse the expression, you're looking at this with your head, and not with your heart. There's something very appealing, even romantic, about seeing a man stand up for the honor of the women in his family. French president Jacques Chirac this week called Zidane a man of heart. And I think his head-butt has won the hearts of a lot of women.

Gigot: Notwithstanding her endorsement of Chirac, I think Melanie wins on points. Finally, Steve Moore sticks up for the much-maligned penny. Steve?

Moore: I call this the penny spurned. What's going on with this is that many in Congress want to eliminate the penny. Why? A couple reasons. One is commodity prices have risen, and therefore, it now costs slightly more than a penny to produce a penny. The other reason, of course, is that we've had very high inflation over the last 50 years. So that a penny now buys only one-seventh of what it bought 50 years ago. Now Ronald Reagan was famous and helped turned around the economy by saying he was going to make the dollar as good as gold. It's bad times for America when we can't even make the dollar as good as copper.

Gigot: Now are you telling me, Steve, that you actually carry around and collect these pennies and haul them to the bank every two weeks?

Moore: Well, they don't have much value anymore, but if we could get our dollar solid again, they would have value again.

Gigot: It's really good to see standing up here as a hard-money guy. I was a little worried about you, on sort of starting liking that inflation, you know, previously.

Moore: Right.

Gigot: So it's good to see you standing up or the penny. All right, Steve. That's it for this week's edition of "The Journal Editorial Report." Thanks to Bret Stephens, Melanie Kirkpatrick, and Steve Moore. I'm Paul Gigot. Thanks for watching. We hope you see you next week.

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