Last week, I discussed Gabriel Schoenfeld's view, which he expressed in Commentary,that the New York Times' series on warrantless NSA surveillance constituted a violation of Section 798 of the Espionage Act of 1917. The law has never been used against journalists, but Schoenfeld believes that the staffers responsible—including Executive Editor Bill Keller and reporters James Risen and Eric Lichtblau—broke it. The law calls for a maximum sentence of 10 years and a $10,000 fine for those convicted; theoretically the newspaper could lose its assets in forfeiture.
The thought of Keller, Risen, and Lichtblau languishing alone in their jail cells so upset me I began to thumb through my files for other potential Section 798 felons who could provide company for the forlorn Timesmen.
Finding them isn't difficult. National-security reporters can't cover the beat without encountering information that brings them crashing into Section 798. My first candidate was Bill Gertz of the Washington Times. He has published national-security gems that in some minds blatantly violate Section 798 strictures against disclosing classified communication-intelligence activities.
For instance, Gertz's November 2000 Washington Times piece "Russian Merchant Ships Used in Spying" cited "CIA and NSA documents which reveal that a specific Russian ship had sent certain specific messages to Russian intelligence officials in Vladivostok," as Steven Aftergood of the Federation of American Scientists wrote at the time. Aftergood continued:
By describing the specific contents of these messages, the Washington Times is announcing to the world that U.S. intelligence has the capability to intercept and presumably decrypt a certain specified form of Russian communications. It is reasonable to suppose that this will trigger an immediate upgrade in Russian communications security—and a probable loss of information for U.S. intelligence in the future. It is hard to identify any countervailing public interest in the reported details that would justify the accompanying loss to U.S. intelligence.
My next candidate was an author so prolific on the topic of classified communication intelligence they could name the journo Gitmo after him: James Bamford. But where to start?
How about his sidebar (" 'He's in the Back Seat!' ") in the April 2006 Atlantic? In it, Bamford describes how the global tracking capabilities of the NSA and the military resulted in the whacking of suspected USS Cole plotter Qaed Salim Sinan al-Harethi. The NSA monitored Harethi's five satellite phones using a partial list of the multiple phone numbers encoded on "cards" that he swapped in and out of the phones to dodge NSA surveillance. The NSA had set up an alarm to go off if any of the numbers were used, Bamford writes, and one day in November 2002 the alarm sounded:
Using the Global Positioning System, they pinpointed the signal in the [Yemenite] province of Marib, a remote, sand-swept landscape that was controlled by well-armed tribal chiefs and was largely off-limits to Yemeni police. Almost immediately, CIA operators in Djibouti began directing a Predator toward the target.
A Hellfire missile turned Harethi into a chunk of sizzling meat.
Like Bamford, Bob Woodward deserves a lifetime Section 798 achievement award for being on top of NSA capabilities. In his book Plan of Attack, he casually divulges that Iraq had "the kind of old-line Soviet coding equipment that NSA knew well and could crack." Woodward's big run-in with Section 798 came back in 1986, when he and Patrick E. Tyler raised the ire of CIA Director William J. Casey with their Washington Post report on Libyan communications intercepts. Casey demanded that the Justice Department use Section 798 to prosecute the Post as well as NBC News and its reporter, James Polk, after they broke the story about the top-secret eavesdropping program called "Ivy Bells." (Woodward had the Ivy Bells story before NBC, but his paper ran it after NBC.) Casey had additional Section 798 stones to throw at Newsweek, the Washington Times, the New York Times, and Time for various alleged indiscretions, but he never got his way.
Seymour M. Hersh seems like another Section 798 achiever. His New Yorkerpiece from 2001, just a month after 9/11, drew heavily on ongoing NSA intercepts of conversations between members of the bickering and corrupt Saudi royal family. This security breach, if it was one, couldn't have pleased the Bush administration.
Who else rates a Gitmo berth? Don't be shy, past and present members of the national-security beat! I'm talking to you, Walter Pincus, Dana Priest, William F. Arkin, Stephen F. Hayes, Tim Weiner, Mark Hosenball, David Ensor, Barton Gellman, David Martin, Steve Coll, Vernon Loeb, Dafna Linzer, and John Walcott.
All towel-snapping aside, will the Bush administration pursue the Schoenfeld option? Last month, Fred Kaplan cast a net wider than Section 798 to explain that if the Espionage Act can be turned on the defendants in the AIPAC case, nobody is safe. Criminal defense attorney Harvey Silverglate ponders the likelihood of a Times prosecution in the Jan. 17, 2006, Boston Phoenix. Viewing the current conflict as a kind of replay of President Richard Nixon's war on leaks and leakers, one that was aborted by the Watergate scandal, Silverglate concludes that a Times prosecution is "not far-fetched."
Any criminal case against the Times would test both Bush's political will and his legal means, Silverglate writes. The Plame leak investigation and the perjury prosecution of Scooter Libby may have sapped that will. But if Bush imagines himself as Nixon before the fall and of journalists as enemies of the state, it could be "one helluva fight," as Silverglate puts it, "the fight that we never got to see between Nixon and the media."
****** Other Gitmo journo candidates? Send your suggestions and evidence to email@example.com. (E-mail may be quoted by name unless the writer stipulates otherwise.)
Other Gitmo journo candidates? Send your suggestions and evidence to firstname.lastname@example.org. (E-mail may be quoted by name unless the writer stipulates otherwise.)