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Has the New York Times Violated the Espionage Act?
Gabriel Schoenfeld
“Bush Lets U.S. Spy on Callers Without Courts.” Thus ran the headline of a front-page news story whose repercussions have roiled American politics ever since its publication last December 16 in the New York Times. The article, signed by James Risen and Eric Lichtblau, was adapted from Risen’s then-forthcoming book, State of War.1 In it, the Times reported that shortly after September 11, 2001, President Bush had “authorized the National Security Agency [NSA] to eavesdrop on Americans and others inside the United States . . . without the court-approved warrants ordinarily required for domestic spying.”
Not since Richard Nixon’s misuse of the CIA and the IRS in Watergate, perhaps not since Abraham Lincoln suspended the writ of habeas corpus, have civil libertarians so hugely cried alarm at a supposed law-breaking action of government. People for the American Way, the Left-liberal interest group, has called the NSA wiretapping “arguably the most egregious undermining of our civil liberties in a generation.” The American Civil Liberties Union has blasted Bush for “violat[ing] our Constitution and our fundamental freedoms.”
Leading Democratic politicians, denouncing the Bush administration in the most extreme terms, have spoken darkly of a constitutional crisis. Former Vice President Al Gore has accused the Bush White House of “breaking the law repeatedly and insistently” and has called for a special counsel to investigate. Senator Barbara Boxer of California has solicited letters from four legal scholars inquiring whether the NSA program amounts to high crimes and misdemeanors, the constitutional standard for removal from office. John Conyers of Michigan, the ranking Democrat on the House Judiciary Committee, has demanded the creation of a select panel to investigate “those offenses which appear to rise to the level of impeachment.”
The President, for his part, has not only stood firm, insisting on both the legality and the absolute necessity of his actions, but has condemned the disclosure of the NSA surveillance program as a “shameful act.” In doing so, he has implicitly raised a question that the Times and the President’s foes have conspicuously sought to ignore—namely, what is, and what should be, the relationship of news-gathering media to government secrets in the life-and-death area of national security. Under the protections provided by the First Amendment of the Constitution, do journalists have the right to publish whatever they can ferret out? Such is certainly today’s working assumption, and it underlies today’s practice. But is it based on an informed reading of the Constitution and the relevant statutes? If the President is right, does the December 16 story in the Times constitute not just a shameful act, but a crime?
[snip]
One of the most pertinent precedents is a newspaper story that appeared in the Chicago Tribune on June 7, 1942, immediately following the American victory in the battle of Midway in World War II. In a front-page article under the headline, “Navy Had Word of Jap Plan to Strike at Sea,” the Tribune disclosed that the strength and disposition of the Japanese fleet had been “well known in American naval circles several days before the battle began.” The paper then presented an exact description of the imperial armada, complete with the names of specific Japanese ships and the larger assemblies of vessels to which they were deployed. All of this information was attributed to “reliable sources in . . . naval intelligence.”
The inescapable conclusion to be drawn from the Tribune article was that the United States had broken Japanese naval codes and was reading the enemy’s encrypted communications. Indeed, cracking JN-25, as it was called, had been one of the major Allied triumphs of the Pacific war, laying bare the operational plans of the Japanese Navy almost in real time and bearing fruit not only at Midway—a great turning point of the war—but in immediately previous confrontations, and promising significant advantages in the terrible struggles that still lay ahead. Its exposure, a devastating breach of security, thus threatened to extend the war indefinitely and cost the lives of thousands of American servicemen.
An uproar ensued in those quarters in Washington that were privy to the highly sensitive nature of the leak. The War Department and the Justice Department raised the question of criminal proceedings against the Tribune under the Espionage Act of 1917. By August 1942, prosecutors brought the paper before a federal grand jury. But fearful of alerting the Japanese, and running up against an early version of what would come to be known as graymail, the government balked at providing jurors with yet more highly secret information that would be necessary to demonstrate the damage done.
Thus, in the end, the Tribune managed to escape criminal prosecution. For their part, the Japanese either never got wind of the story circulating in the United States or were so convinced that their naval codes were unbreakable that they dismissed its significance. In any case, they left them unaltered, and their naval communications continued to be read by U.S. and British cryptographers until the end of the war.
[snip]
“Unauthorized disclosures can be extraordinarily harmful to the United States national-security interests and . . . far too many such disclosures occur,” said President Clinton on one occasion, adding that they “damage our intelligence relationships abroad, compromise intelligence gathering, jeopardize lives, and increase the threat of terrorism.” To be sure, even as he uttered these words, Clinton was in the process of vetoing a bill that tightened laws against leaking secrets. But, his habitual triangulating aside, he was right and remains right. In recent years a string of such devastating leaks has occurred, of which the NSA disclosure is at the top of the list.
By means of that disclosure, the New York Times has tipped off al Qaeda, our declared mortal enemy, that we have been listening to every one of its communications that we have been able to locate, and have succeeded in doing so even as its operatives switch from line to line or location to location. Of course, the Times disputes that its publication has caused any damage to national security. In a statement on the paper’s website, Bill Keller asserts complacently that “we satisfied ourselves that we could write about this program . . . in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record.” In his book, James Risen goes even further, ridiculing the notion that the NSA wiretapping “is critical to the global war on terrorism.” Government officials, he writes, “have not explained why any terrorist would be so naïve as to assume that his electronic communication was impossible to intercept.”
But there are numerous examples of terrorists assuming precisely that. Prior to September 11, Osama bin Laden regularly communicated with top aides using satellite telephones whose signals were being soaked up by NSA collection systems. After a critical leak in 1998, these conversations immediately ceased, closing a crucial window into the activities of al Qaeda in the period running up to September 11.
Even after September 11, according to Risen and Eric Lichtblau in their December story, terrorists continued to blab on open lines. Thus, they wrote, NSA eavesdropping helped uncover a 2003 plot by Iyman Faris, a terrorist operative, who was apprehended and sentenced to 20 years in prison for providing material support and resources to al Qaeda and conspiring to supply it with information about possible U.S. targets. Another plot to blow up British pubs and subways stations using fertilizer bombs was also exposed in 2004, “in part through the [NSA] program.” This is the same James Risen who blithely assures us that terrorists are too smart to talk on the telephone.
For its part, the New York Times editorial page remains serenely confident that the problem is not our national security but the overreaching of our own government. Condescending to notice that the “nation’s safety is obviously a most serious issue,” the paper wants us to focus instead on how “that very fact has caused this administration and many others to use it as a catch-all for any matter it wants to keep secret.” If these are not the precise words used by Colonel McCormick’s Tribune as it gave away secrets that could have cost untold numbers of American lives, the self-justifying spirit is exactly the same.
[snip]
One might go further. What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism. If information about the NSA program had been quietly conveyed to an al-Qaeda operative on a microdot, or on paper with invisible ink, there can be no doubt that the episode would have been treated by the government as a cut-and-dried case of espionage. Publishing it for the world to read, the Times has accomplished the same end while at the same time congratulating itself for bravely defending the First Amendment and thereby protecting us—from, presumably, ourselves. The fact that it chose to drop this revelation into print on the very day that renewal of the Patriot Act was being debated in the Senate—the bill’s reauthorization beyond a few weeks is still not assured—speaks for itself.
The Justice Department has already initiated a criminal investigation into the leak of the NSA program, focusing on which government employees may have broken the law. But the government is contending with hundreds of national-security leaks, and progress is uncertain at best. The real question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate secret and what is not. Like the Constitution itself, the First Amendment’s protections of freedom of the press are not a suicide pact. The laws governing what the Times has done are perfectly clear; will they be enforced?
Has the New York Times Violated the Espionage Act?
Gabriel Schoenfeld
“Bush Lets U.S. Spy on Callers Without Courts.” Thus ran the headline of a front-page news story whose repercussions have roiled American politics ever since its publication last December 16 in the New York Times. The article, signed by James Risen and Eric Lichtblau, was adapted from Risen’s then-forthcoming book, State of War.1 In it, the Times reported that shortly after September 11, 2001, President Bush had “authorized the National Security Agency [NSA] to eavesdrop on Americans and others inside the United States . . . without the court-approved warrants ordinarily required for domestic spying.”
Not since Richard Nixon’s misuse of the CIA and the IRS in Watergate, perhaps not since Abraham Lincoln suspended the writ of habeas corpus, have civil libertarians so hugely cried alarm at a supposed law-breaking action of government. People for the American Way, the Left-liberal interest group, has called the NSA wiretapping “arguably the most egregious undermining of our civil liberties in a generation.” The American Civil Liberties Union has blasted Bush for “violat[ing] our Constitution and our fundamental freedoms.”
Leading Democratic politicians, denouncing the Bush administration in the most extreme terms, have spoken darkly of a constitutional crisis. Former Vice President Al Gore has accused the Bush White House of “breaking the law repeatedly and insistently” and has called for a special counsel to investigate. Senator Barbara Boxer of California has solicited letters from four legal scholars inquiring whether the NSA program amounts to high crimes and misdemeanors, the constitutional standard for removal from office. John Conyers of Michigan, the ranking Democrat on the House Judiciary Committee, has demanded the creation of a select panel to investigate “those offenses which appear to rise to the level of impeachment.”
The President, for his part, has not only stood firm, insisting on both the legality and the absolute necessity of his actions, but has condemned the disclosure of the NSA surveillance program as a “shameful act.” In doing so, he has implicitly raised a question that the Times and the President’s foes have conspicuously sought to ignore—namely, what is, and what should be, the relationship of news-gathering media to government secrets in the life-and-death area of national security. Under the protections provided by the First Amendment of the Constitution, do journalists have the right to publish whatever they can ferret out? Such is certainly today’s working assumption, and it underlies today’s practice. But is it based on an informed reading of the Constitution and the relevant statutes? If the President is right, does the December 16 story in the Times constitute not just a shameful act, but a crime?
[snip]
One of the most pertinent precedents is a newspaper story that appeared in the Chicago Tribune on June 7, 1942, immediately following the American victory in the battle of Midway in World War II. In a front-page article under the headline, “Navy Had Word of Jap Plan to Strike at Sea,” the Tribune disclosed that the strength and disposition of the Japanese fleet had been “well known in American naval circles several days before the battle began.” The paper then presented an exact description of the imperial armada, complete with the names of specific Japanese ships and the larger assemblies of vessels to which they were deployed. All of this information was attributed to “reliable sources in . . . naval intelligence.”
The inescapable conclusion to be drawn from the Tribune article was that the United States had broken Japanese naval codes and was reading the enemy’s encrypted communications. Indeed, cracking JN-25, as it was called, had been one of the major Allied triumphs of the Pacific war, laying bare the operational plans of the Japanese Navy almost in real time and bearing fruit not only at Midway—a great turning point of the war—but in immediately previous confrontations, and promising significant advantages in the terrible struggles that still lay ahead. Its exposure, a devastating breach of security, thus threatened to extend the war indefinitely and cost the lives of thousands of American servicemen.
An uproar ensued in those quarters in Washington that were privy to the highly sensitive nature of the leak. The War Department and the Justice Department raised the question of criminal proceedings against the Tribune under the Espionage Act of 1917. By August 1942, prosecutors brought the paper before a federal grand jury. But fearful of alerting the Japanese, and running up against an early version of what would come to be known as graymail, the government balked at providing jurors with yet more highly secret information that would be necessary to demonstrate the damage done.
Thus, in the end, the Tribune managed to escape criminal prosecution. For their part, the Japanese either never got wind of the story circulating in the United States or were so convinced that their naval codes were unbreakable that they dismissed its significance. In any case, they left them unaltered, and their naval communications continued to be read by U.S. and British cryptographers until the end of the war.
[snip]
“Unauthorized disclosures can be extraordinarily harmful to the United States national-security interests and . . . far too many such disclosures occur,” said President Clinton on one occasion, adding that they “damage our intelligence relationships abroad, compromise intelligence gathering, jeopardize lives, and increase the threat of terrorism.” To be sure, even as he uttered these words, Clinton was in the process of vetoing a bill that tightened laws against leaking secrets. But, his habitual triangulating aside, he was right and remains right. In recent years a string of such devastating leaks has occurred, of which the NSA disclosure is at the top of the list.
By means of that disclosure, the New York Times has tipped off al Qaeda, our declared mortal enemy, that we have been listening to every one of its communications that we have been able to locate, and have succeeded in doing so even as its operatives switch from line to line or location to location. Of course, the Times disputes that its publication has caused any damage to national security. In a statement on the paper’s website, Bill Keller asserts complacently that “we satisfied ourselves that we could write about this program . . . in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record.” In his book, James Risen goes even further, ridiculing the notion that the NSA wiretapping “is critical to the global war on terrorism.” Government officials, he writes, “have not explained why any terrorist would be so naïve as to assume that his electronic communication was impossible to intercept.”
But there are numerous examples of terrorists assuming precisely that. Prior to September 11, Osama bin Laden regularly communicated with top aides using satellite telephones whose signals were being soaked up by NSA collection systems. After a critical leak in 1998, these conversations immediately ceased, closing a crucial window into the activities of al Qaeda in the period running up to September 11.
Even after September 11, according to Risen and Eric Lichtblau in their December story, terrorists continued to blab on open lines. Thus, they wrote, NSA eavesdropping helped uncover a 2003 plot by Iyman Faris, a terrorist operative, who was apprehended and sentenced to 20 years in prison for providing material support and resources to al Qaeda and conspiring to supply it with information about possible U.S. targets. Another plot to blow up British pubs and subways stations using fertilizer bombs was also exposed in 2004, “in part through the [NSA] program.” This is the same James Risen who blithely assures us that terrorists are too smart to talk on the telephone.
For its part, the New York Times editorial page remains serenely confident that the problem is not our national security but the overreaching of our own government. Condescending to notice that the “nation’s safety is obviously a most serious issue,” the paper wants us to focus instead on how “that very fact has caused this administration and many others to use it as a catch-all for any matter it wants to keep secret.” If these are not the precise words used by Colonel McCormick’s Tribune as it gave away secrets that could have cost untold numbers of American lives, the self-justifying spirit is exactly the same.
[snip]
One might go further. What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism. If information about the NSA program had been quietly conveyed to an al-Qaeda operative on a microdot, or on paper with invisible ink, there can be no doubt that the episode would have been treated by the government as a cut-and-dried case of espionage. Publishing it for the world to read, the Times has accomplished the same end while at the same time congratulating itself for bravely defending the First Amendment and thereby protecting us—from, presumably, ourselves. The fact that it chose to drop this revelation into print on the very day that renewal of the Patriot Act was being debated in the Senate—the bill’s reauthorization beyond a few weeks is still not assured—speaks for itself.
The Justice Department has already initiated a criminal investigation into the leak of the NSA program, focusing on which government employees may have broken the law. But the government is contending with hundreds of national-security leaks, and progress is uncertain at best. The real question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate secret and what is not. Like the Constitution itself, the First Amendment’s protections of freedom of the press are not a suicide pact. The laws governing what the Times has done are perfectly clear; will they be enforced?