Gabriel Schoenfeld answered the question he posed in his excellent March 2006 Commentary article in the affirmative: “Has the ‘New York Times’ violated the Espionage Act.” Commentary has now posted correspondence responding to Schoenfeld’s article and his comments on it here as a preview of the June issue. Among Schoenfeld’s correspondents are Steven Aftergood (of the Federation of American Scientists), Morton Halperin (of the Open Society Institute), and Paul McMasters (of the First Amendment Center).
All the correspondets take issue with Schoenfeld’s article, but they fail to make much of an argument concerning his analysis of the legal issues. When it comes to compliance with section 798 of the espionage laws, they’re like Bartleby the Scrivener: They’d prefer not to. They refer to the vagueness of section 793. They refer to the age of section 793. They assert the illegality of the NSA eavesdropping program exposed by the Times without reference to a single case on the issue of the president’s constitutional authority. All in all, they put on a remarkable performance.
They also refuse to take a look at the requirements of a prosecution under section 798 (or even section 793). As I pointed out in “Exposure,” an element of the offense defined by section 798 is prejudice to the safety or interest of the United States, or detriment to the United States. If the government chose to prosecute Messrs. Risen, Lichtblau et al., it would have to prove — and a jury would have to find beyond a reasonable doubt — that the disclosure of the program harmed the safety or interest of the United States.
Not a single one of Schoenfeld’s correspondents even takes note of this requirement and how it acts to limit prosecutions of the offense. Were they to do so, moreover, it would suggest why the statute should be enforced under circumstances such as those involved in the case of the Times exposure of the NSA program.
In his autobiography Radical Son, former Ramparts editor David Horowitz recounts a similar 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.
And Nesson was of course exactly right. The same considerations apply to any possible prosecution of the Times.
Schoenfeld himself does not explain this in his response, but he does powerfully address the issue of harm:
Along with a number of other correspondents, Mr. Aftergood suggests that only minimal damage was done by disclosure of the NSA program. Even before the Times story appeared, so the argument goes, al-Qaeda operatives had cause to believe that their telephone and email messages were not secure, and they refrained from communicating through such channels. All the New York Times did, therefore, was to confirm a fact already widely known, without interfering with actual counterterrorism operations.
There is a certain surface plausibility to this contention. Beneath the surface, however, it ignores both logic and basic facts. Of course, my critics are no more privy than I am to the actual workings of the NSA program, and so we cannot confidently judge the actual costs of the New York Times’s disclosure. But the public statements of those who are privy to such knowledge are not reassuring. Jane Harman, the ranking Democratic member of the House Intelligence Committee, has said that the leak “damaged critical intelligence capabilities.” None of my correspondents offers the slightest reason to doubt her words.
As the recent Madrid and London subway bombings make plain, to finance, plan, and carry out even a relatively modest terrorist operation requires an extensive exchange of information. And a moment’s thought makes clear that there are not many available channels in which such an exchange can occur. Smoke signals from mountaintop to cave might suffice in a place like Afghanistan, but they would hardly work well in planning an operation to hit New York City out of Waziristan.
Couriers present a different set of problems; they are typically much too slow and run great risks when crossing international borders. The global postal system is also slow, unreliable, and vulnerable to interception. In terms of speed, clarity, reliability, and security, telephone and email simply cannot be surpassed. This explains why, even after September 11, al-Qaeda operatives are known to have continued talking on open lines. Determined to mount further coordinated actions, they have had little choice.
The New York Times, in stating that the NSA program “led investigators to only a few potential terrorists in the country whom they did not know about from other sources” (emphasis added), has unwittingly made a devastating admission about the harm it may have inflicted on our country’s security. Three of the four planes hijacked on September 11 were commandeered by only five men; one was commandeered by four. Together, these “few” terrorists caused massive destruction and took some 3,000 lives. If, in the post-September 11 era, the NSA surveillance program enabled our government to uncover even a “few” potential terrorists in the U.S., it was doing its job, doing it well, and, depending on who exactly these few potential terrorists were, doing it perhaps spectacularly well.
If, moreover, the New York Times story of December 16, 2005 did not completely compromise the NSA program, the details that the paper subsequently published, the even fuller elaboration in James Risen’s book, and the attendant hailstorm of publicity effectively finished the job. Al-Qaeda operatives were put on notice not merely that they risked having their international communications intercepted but that interception was a near certainty. Not long after that revelation, in all likelihood, such communications ceased. Just as the disclosures undoubtedly threw a wrench into the work of terrorist planners, they threw an even larger wrench into our efforts to uncover their plots.
Compounding this damage is harm of a more general sort. In waging the war on terrorism, the U.S. depends heavily on cooperation with the intelligence agencies of allied countries. When our own intelligence services, including the NSA, the most secretive branch of all, demonstrate that that they are unable to keep shared information under wraps, international cooperation dries up. According to Porter Goss, director of the CIA in this period, “Too many of my counterparts from other countries have told me, ‘You Americans can’t keep a secret’…and some of these critical partners have even informed the CIA that they are reconsidering their participation in some of our most important antiterrorism ventures.”
If counterterrorism were a parlor game—and that is how, in their recent cavalier treatment of sensitive intelligence secrets, the Washington Post and the New York Times seem to regard it—Goss’s fretting could be easily dismissed. But every American was made aware on September 11 of the price of an intelligence shortfall. This is no game, but a matter of life and death.