In General Hayden’s outstanding presentation at the National Press Club yesterday, I was most struck by his response to one of the questions regarding the putative harm wrought by the New York Times’s disclosure of the NSA surveillance program applicable to al Qaeda-related communications. CNN reporter Justine Redman asked General Hayden how national security was harmed by the Times story revealing the program. General Hayden responded:
Public discussion of how we determine al Qaeda intentions, I just — I can’t see how that can do anything but harm the security of the nation. And I know people say, “Oh, they know they’re being monitored.” Well, you know, they don’t always act like they know they’re being monitored. But if you want to shove it in their face constantly, it’s bound to have an impact. And so to — I understand…there are issues here that the American people are deeply concerned with. But constant revelations and speculation and connecting the dots in ways that I find unimaginable, and laying that out there for our enemy to see cannot help but diminish our ability to detect and prevent attacks.
The Weekly Standard has posted my column on the laws that govern the disclosure of the NSA program by the New York Times: “Exposure.” I argue that the New York Times should be at considerable risk of criminal prosecution under the espionage laws for its disclosure of the NSA surveillance program. Moreover, the individuals at the Times responsible for its conduct in this matter — James Risen, Bill Keller, Arthur Sulzberger, Jr. and others — are in plain view. No extensive investigation is necessary to identify them. General Hayden’s comments bear directly on the point of the column.
The column nevertheless concludes with reference to an episode that bears on the difficulty of holding the Times accountable for the crimes I believe it has committed:
In his autobiography Radical Son, former Ramparts editor David Horowitz recounts an incident involving the magazine’s 1972 receipt of a draft article by a pseudonymous National Security Agency employee. Horowitz characterizes his involvement in the publication of the article in Ramparts as “the most shameful or humiliating thing I ever did.”
In the article, the NSA employee revealed that the agency had cracked the Soviet intelligence code and could read Soviet electronic communications at will. Deliberating over whether publication of the article might subject the magazine editors to prosecution under the espionage laws, Horowitz consulted prominent Harvard law professor Charles Nesson. (Nesson denies recollection of the conversation recounted by Horowitz.) Nesson was then working as a member of Daniel Ellsberg’s defense team in connection with the government’s prosecution of Ellsberg for removing copies of the Pentagon Papers and turning them over to the Times — the incident underlying the Pentagon Papers case itself. Horowitz relates that Nesson advised him that publication of the article would violate the law. In addition to providing certain technical guidance, according to Horowitz, Nesson advised:
To make its case in a court of law, the government would have to establish that we had indeed damaged national security. To do so, it would be necessary to reveal more than the government might want the other side to know. In fact, the legal process would force more information to light than the government would want anybody to know. On balance, there was a good chance that we would not be prosecuted. I had just been given advice by a famous constitutional law professor on how to commit treason and get away with it.
One wonders if the Times relied on similar advice regarding its publication of the NSA surveillance story.