In his Washington Post article on possible leak-related prosecution of New York Times reporters James Risen and Eric Lichtblau, Walter Pincus refers to a comment by Attorney General Gonzales:
On the talk show, when asked if journalists could be prosecuted for publishing classified information, Gonzales responded, “There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility.”
He was referring to the 1917 Espionage Act, which made it a crime for an unauthorized person to receive national defense information and transmit it to others.
Pincus asserts that Gonzales is referring to section 793 of the Espionage Act. As we have explained here many times, however, the statute that expressly applies to the Times’s exposure of the NSA program, however, is section 798 — the statute that prohibits the publication of communications intelligence. The statute was enacted by Congress in 1950. Why can’t the Post get this straight?
Gabriel Schoenfeld explained the background of section 798 in his thoughtful Commentary essay. Schoenfeld updates his Commentary essay in a Los Angeles Times column that concisely revisits the subject: “Weak on leaks.” The relevant facts and law are treated as top secret — the kind of top secret information whose secrecy is respected — by the likes of Walter Pincus and his colleagues in the mainstream media.