Bill Keller in chains and prison orange.

Bill Keller in chains and prison orange.

Bill Keller in chains and prison orange.

Media criticism.
March 9 2006 6:57 PM

Bill Keller in Chains

Commentary's case for prosecuting the Times under the Espionage Act.

Commentary Magazine.
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If you enjoyed New York Times reporter Judith Miller playing herself in her vanity remake of Women in Cages, an even greater entertainment awaits you if prosecutors exercise the Espionage Act of 1917 in a manner Gabriel Schoenfeld believes is warranted.

In the March Commentary, Schoenfeld argues that the New York Times' scoops about the National Security Agency's surveillance program (Dec. 16, Dec. 21, and Dec. 24) violated Section 798 of the act, which means Times Executive Editor Bill Keller, reporters James Risen and Eric Lichtblau, and a few assorted editors could wind up starring in their own prison docudramas. Oh, and in the event of a successful prosecution, the law appears to authorize the forfeiture of Times assets for government auction.

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The Espionage Act has long been regarded as a flawed statute. In a definitive study of the act published in the May 1973 Columbia Law Review, Harold Edgar and Benno C. Schmidt Jr. described it as "so sweeping as to be absurd" and wrote that it is "in many respects incomprehensible." But the Espionage Act's legendary incomprehensibility hasn't prevented the current leak-plugging administration from using it to indict—for the first time—Americans who don't work for the government, don't have security clearances, and don't appear to be working in a foreign spy operation in the American Israel Public Affairs Committee case. (See this recent Times piece and this excellent New Republic overview from last fall.)

Invoking the Espionage Act in the leaks to AIPAC might be an example of prosecutorial overreach that a higher court will overturn. But Schoenfeld contends that Section 798 of the act, added in the Cold War year of 1950, unambiguously speaks to the type of classified information the Times published in its NSA series. Advocating for the prosecution of the Times,Schoenfeld reproduces the section with typographical emphasis to make his point:

§798. Disclosure of Classified Information.

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

(b) As used in this subsection (a) of this section—
The term "classified information" means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;

Section 798 continues:

The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;
The term "unauthorized person" means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

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Schoenfeld writes approvingly of Edgar and Schmidt's view that this provision is a "model of precise draftsmanship," and he believes that it criminalizes the publication of the NSA surveillance story. ("Will that be prison orange for you, Messrs. Keller, Risen, and Lichtblau, or would you prefer something in a jailhouse-rock blue?")

If Schoenfeld is right, the feds might want to reserve a cell for James Bamford, whose feature in the April Atlantic, "Big Brother Is Listening," and its sidebar, " 'He's in the Back Seat!' " reveal NSA "communications intelligence" with great specificity.

Stuart Taylor, who has covered the legal angles of the NSA story for the National Journal, argues via e-mail that any prosecution of the Times under Section 798 may "run afoul of two well-established constitutional doctrines." He writes:

First, the First Amendment overbreadth doctrine makes unconstitutional even what might otherwise be valid applications of any statute so broad that it could be used to prosecute speech protected by the First Amendment. Section 798(a)(3)—in contrast to the more specific provisions of Section 798—may well be unconstitutionally overbroad: It could be used to prosecute publication of information that was improperly classified because publication would do no conceivable harm to national security (which is arguably true in this case); information that was once properly classified but now is clearly of only historical interest, such as a story about interception of a Khrushchev phone call would be; and information about criminal activities by the president or his subordinates.

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Taylor adds that nobody has made a convincing case that the NSA program leak did more than trivial damage to national security: "Qaeda operatives already knew that they could be surveilled anywhere in the world with warrants, and that FISA warrants were notoriously easy to obtain. So the New York Times told them that Bush had decreed that they could be surveilled without warrants. Big deal."

Second, a prosecution might not survive the "void-for-vagueness doctrine," Taylor writes, because the statute doesn't "give fair notice to potential defendants of what it allows and what it forbids, and that violates due process of law."

In e-mail, Schoenfeld reiterates his point about Edgar and Schmidt finding nothing vague about Section 798 and adds that the American Society of Newspaper Editors endorsed its passage in 1950.

Justice requires prosecutors to bring a case against the paper, Schoenfeld writes:

Justice Department prosecutors are now examining whether crimes were committed when the NSA story was leaked to the Times and to James Risen. Inevitably, they will examine Section 798 and see that the newspaper itself and its reporters are subject to its reach. I am not aware of any clearer case of a breach of this provision. If they fail to prosecute, they will effectively dismantle the statute. Given that our democracy needs to have a system of laws governing secrets, and that we cannot rely on the capricious or politically motivated decisions of unelected newspaper editors, failure to prosecute the Times would be a blow to the rule of law and bad for the war on terrorism.

How eager are prosecutors to bring such a case against the press? They neither rule it out nor seem to be fighting their way to the docket, judging from their Jan. 30 filing in the AIPAC case. The prosecutors write:

[W]e recognize that a prosecution under the espionage laws of an actualmember 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.

******

Just as I filed, I discovered that Scott Johnson had anticipated nuggets of Schoenfeld's argument in a Jan. 24 Weekly Standard piece, so add it to your reading pile. Send additional pointers on the issue via e-mail to slate.pressbox@gmail.com. (E-mail may be quoted by name unless the writer stipulates otherwise.)