The Worst of the Times

By David Yerushalmi Published 1/6/2006 12:07:02 AM

Since December 16, 2005, when the New York Times disclosed the existence of the National Security Agency's secret electronic surveillance program, much has transpired. The most important of which is a Justice Department investigation into the identity of the person or persons who provided this information to the Times. On its editorial pages, the Times argues that "[i]llegal spying and torture need to be investigated, not whistle-blowers and newspapers."

The Times editorial should be understood for what it is: an attempt to lobby the public and government officials against a federal indictment charging the Times management, editor Bill Keller and publisher Arthur Sulzberger, Jr., with violations of the Espionage Act. They are running scared and have good reason. Along the same lines, New York Senator Charles Schumer suggests that the motive behind the leak ("whistleblower" versus traitor) should be a critical factor in the decision to initiate a prosecution. The Senator's comments do not reflect the law and it is well they don't.

Section 793 of the Espionage Act sets forth the elements of a crime: any authorized person in possession of "information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation" and who purposefully discloses that information to any unauthorized person, is in violation of this provision and, under subsection (f), may be imprisoned for up to ten years.

The question for the prosecutor in this case is straightforward: Could our enemies use the disclosure of this program to their advantage and did the "leaker" have reason to believe this to be so? Senator Schumer's "whistleblower" versus "traitor" analysis is not only laughable on its face, it is contrary to the plain language and intent of the statute. A prosecutor who used this analysis would be abusing prosecutorial discretion and acting contrary to the law. (In the case of a leaker who "intends" to provide this information to the enemy, Sen. Schumer's "motivation" test might be relevant. But this would be a separate question under Section 794 of the Act, a crime which carries a life or death sentence for its violation.)

According to the Times/Schumer logic, every disaffected civil servant should be permitted to divulge national security secrets if his motives are to expose a program he believes illegal or not in the best interests of the country. But does this not put the leaker in the position of Supreme Judge of our nation's national security? Who determines the "legality" or propriety of a top secret program? The President? The Courts? Congress? The leaker?

IN THE CASE at hand, the President and the Attorney General concluded the NSA program was a legal exercise of executive power. The Supreme Court has never ruled otherwise, and if anything, the lower federal courts have consistently recognized the President's constitutional authority as Commander-in-Chief to gather foreign intelligence, whether domestically or internationally, without a judicial warrant. It is not even clear that the courts have the authority to "judge" the President in his role as Commander-in-Chief. If the courts do have such a power, there is not much left to the concept of Separation of Powers. Congress, of course, has absolutely no authority to "rule" on the legality of a Presidential act unless it is at issue in an impeachment proceeding.

Given this state of affairs, what whistle was the leaker blowing, other than his own personal view of the world?

Invariably, the prosecutor will turn to the New York Times, not simply to determine the source for the disclosure but for the crimes committed by the paper and its management. The facts as provided by the Times to date are that it learned of the NSA program over a year ago and held the story at the request of the White House (presumably the Times asked the Administration for confirmation). After at least one meeting with the President, the Times editor, Bill Keller, and publisher, Arthur Sulzberger, Jr., were convinced that the nation's security would be at risk with the publication of the leak and held it. Approximately one year later the Times published the story.

Questions abound about Messrs. Keller's and Sulzberger's motivation for publishing the article when they did. Whatever their motivations, the Times has, by publishing this story, taken the position, much as it did back in the Pentagon Papers days, that the risks associated with the criminal violation of the Espionage Act were outweighed by the public good. This position ought to be challenged, if for no other reason than lives, and a country's very existence, are at stake.

Again, we turn to the law for instruction. Section 793(e) of the Espionage Act makes it a crime punishable by imprisonment for up to ten years for any "unauthorized" person "in possession of...information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates...the same to any person not entitled to receive it...." The law also makes it a separate offense to "conspire" to violate the law, something the Times must have done to grant confidentiality to its sources.

The Times and its editors are not excused from their obligations as citizens by virtue of their media credentials. In the Pentagon Papers case, even though the Supreme Court shielded the New York Times from President Nixon's efforts to enjoin the publication of the top secret document, a plurality of justices in that case would not have ruled that the media is immune from a post-publication criminal prosecution (see U.S. v. NY Times, 403. U.S. 713 (1971)).

FREEDOM OF THE PRESS and all that it entails does not grant the press a license to put the rest of us in danger. Further, is it the Times's position that only newspaper editors are above the law and granted the authority to sit in judgment of the secrecy and legality of government programs? Even assuming a program is illegal, who weighs the danger of disclosure of such top secret programs to our enemies against the harm caused by the illegality of the program?

The Times would have the U.S. Constitution be understood to mean that unelected judges have the authority to overrule the acts of the elected Commander-in-Chief, that Congress has the authority to criminalize the exercise of the President's constitutional responsibilities, and the Press has the responsibility and the authority to disclose any top secrets it deems harmful to the cause of freedom.

This position on its face contradicts the expressed language of the Constitution and the Espionage Act. The Times should be held to the same standard as all other citizens.