Top secret

One of the deepest secrets in the exposure of the National Security Agency surveillance of al Qaeda-related conversations by the New York Times is that the publication of the story is itself a crime. Publication of the story violates, for example, one highly specific provision (18 U.S.C. section 798) of the Espionage Act that prohibits the disclosure of communications intelligence. Violation of the statute is a felony punishable by imprisonment up to ten years.
The “nearly a dozen” current and former government officials who leaked information regarding the NSA surveillance program to the Times violated the statute. So did the Times itself. Yet the Times has barely mentioned its own legal jeopardy in its continued reporting and commentary on the story.
The Bush administration of course asked the Times not to disclose the existence of the surveillance program, but the Times proceeded to publish the story when it satisfied itself that it “could write about this program — withholding a number of technical details — in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record.” Thus Times executive editor Bill Keller spake in his statement on the story. (We noted General Hayden’s disagreement with Keller in “Crimes of the Times.”)
We wrote about the legal issues regarding the publication of the original December 16 Times story repeatedly here, but the issues received essentially no attention elsewhere. In January, the Boston Phoenix published the excellent analysis of the legal issues regarding the Times’s publication of the story in “The gray lady in shadow” by civil liberties attorney Harvey Silverglate. The Daily Standard followed with my column “Exposure.” Then this month Commentary published Gabriel Schoenfeld’s “Has the New York Times violated the Espionage Act?”
Today’s Washington Post covers the current investigation of the NSA and other leaks in “White House trains efforts on media leaks.” The story presents the issues in a manner so blinkered that it is impossible to understand them. There is no mention, for example, of the statute prohibiting the publication of communications intelligence, though we do get Bill Keller’s disgusting bloviation:

“There’s a tone of gleeful relish in the way they talk about dragging reporters before grand juries, their appetite for withholding information, and the hints that reporters who look too hard into the public’s business risk being branded traitors,” said New York Times Executive Editor Bill Keller, in a statement responding to questions from The Washington Post. “I don’t know how far action will follow rhetoric, but some days it sounds like the administration is declaring war at home on the values it professes to be promoting abroad.”

In Keller’s book, talking about enforcement of the rule of law is equivalent to “declaring war” on the promotion of democracy. I guess it this kind of subtlety that has earned the Times its place of distinction among the mainstream media.
The problem with the pending investigation of the NSA leaks is that the administration appears only to be talking about enforcement of the rule of law insofar as the New York Times is concerned. The Post reports that not a single reporter or editor has been interviewed in connection with the pending investigations. In the last paragraph of this long story, Eggen quotes “the Justice Department”:

The Justice Department said “there plainly is no exemption” for the media under the Espionage Act, but added, “a prosecution under the espionage laws of an actual member of the press for publishing classified information leaked to it by a government source would raise legitimate and serious issues and would not be undertaken lightly, indeed, the fact that there has never been such a prosecution speaks for itself.”

This Justice Department statement distinguishes the administration’s kid-glove treatment of the Times with its prosecution (under a much vaguer provision of the Espionage Act than the one Silverglate and I address) of AIPAC staff members Steve Rosen and Keith Weissman for receiving classified information about Iran. There’s a story here alright, but the Post never quite gets around to it.
It is indicative of the “through a glass darkly” quality of Eggen’s story that the first expert he quotes is Professor David Greenberg, last seen in the Post defaming Charles Colson in the guise of a review of Jonathan Aitken’s new biography of Colson. In Eggen’s story he serves the utterly predictable and entirely unilluminating purpose of introducing the ghost of Richard Nixon into the story. I devoted a Standard column to Greenberg in “Wielding the hatchet” and took another whack at him here when the Post published Greenberg’s pitiful respone to Mark Earley’s letter on Greenberg’s review in “Professor Greenberg regrets.”
JOHN adds: AJ Strata also has comments on the Post’s story, including some skeptical observations on the motivations of those involved in leaking and publishing leaks.


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