It is an article of faith on the Left and among its fellow travelers that the Bush administration stole two elections, made war on Iraq for venal reasons, tortured hapless foreigners, and conducted illegal surveillance of innocent Americans. A corollary of this mindset is that the press, primarily the Washington Post and The New York Times, has a right, indeed a duty, to print whatever they want about the administration—even if the information compromises national security.
Not true. The press is not exempt from laws that apply to everyone else. The press is not exempt from laws protecting our national security. The New York Times is not exempt from the Espionage Act, as we shall see in a moment.
But first, it’s necessary to understand what an indictment of the Times does not involve.
First, an Espionage Act indictment of The New York Times would not even remotely constitute an attack on a free press. As Justice White wrote in Branzburg v. Hayes, “[i]t would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws.”
Nor would an indictment of the Times constitute an attempt to restrain it from publishing news. The anti-anti-terrorists who seek to justify the Times revealing the NSA’s domestic surveillance program and thus prevent their flagship paper from being indicted, rely on a Supreme Court decision entitled New York Times Company v. United States, better known as the Pentagon Papers Case. Their reliance is misplaced.
In 1971 a disgruntled anti-war activist delivered a classified study—“History of U.S. Decision-Making Process on Viet Nam Policy”—to The New York Times and the Washington Post. The government sued to enjoin publication—seeking to impose a prior restraint. If there are any fundamental principles in modern First Amendment law, one is that the burden on government to restrain publication (as compared, for example, with later punishing its publication) is extremely heavy. Accordingly, in a 6-3 decision, the Court ruled for the newspapers, and the publication of the embarrassing Pentagon Papers went ahead.
Thus, New York Times Company v. United States, where the Court rejected a government-sought prior restraint on publication, would have no precedential value in a case where, after publication, the government sought to punish the Times for violating the Espionage Act.
Third, not only was there no legal impediment to the NSA’s domestic surveillance program, there was abundant authority for it. The President possesses broad powers as chief executive and Commander in Chief under Article II of the Constitution. Congress has repeatedly delegated to all presidents considerable war-related powers, and especially post-9/11 to President Bush. It was Congress that created and empowered the National Security Agency. The Executive Branch’s NSA domestic surveillance program, aimed at obtaining intelligence about the foreign-based terrorist war on the United States, was/is an integral element of our national security policy and its implementation. No Supreme Court decision has ever held that the Presidential/Congressionally-sanctioned acquisition of that kind of intelligence was constitutionally or otherwise prohibited.
Accordingly, it is pointless to consider whether the NSA’s domestic surveillance program was legal. It was! If a case involving that program ever reaches the Supreme Court, that’s what its ruling will be.
Fourth, the interesting history of the Espionage Act is irrelevant to whether the Times may have violated it.
Finally, it is a waste of time to consider whether the Act is constitutional. It has been expressly and impliedly held constitutional more than once.
This brings us to whether The New York Times is indictable (and ultimately convictable) for violating the Espionage Act.
The facts are clear. The NSA was engaged in highly classified warrantless wiretaps of domestic subjects in connection with the War on Terror, and the Times, a private newspaper, made that information public.
It is to those facts that the Espionage Act either applies, or does not apply.
Title 18, Section 793 of the United States Code, provides that “(e) Whoever having unauthorized possession of . . . any document . . . or 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 . . . (f) . . . [s]hall be fined under this title or imprisoned not more than ten years, or both. (g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.” (Section 794 is inapplicable. It deals with “gathering or delivering defense information to aid [a] foreign government.”)
“It is,” said the United States Court of Appeals for the Fourth Circuit in assessing Section 793 (e) in United States v. Morison, “difficult to conceive of any language more definite and clear.”
Let’s break down the statute into its component parts.
“Whoever”: this would mean the New York Times company, publisher Arthur Sulzberger, Jr., editor Bill Keller, and anyone else privy to the information upon which the story was based.
“Having unauthorized possession”: the information was classified, and the Times was not authorized to have it.
“Of any document . . . or information”: certainly the Times had information, because it published it; it is inconceivable that the newspaper did not have documents of some kind, because the newspaper would never have gone that far out on a limb without at least some corroboration beyond an oral report(s).
“Relating to the national defense”: no comment is necessary; indeed, the Times has conceded that targets of the warrantless wiretaps were persons who may have had some connection to terrorists.
“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”: obviously the Times had “reason to believe,” because it withheld the story for a year.
“Willfully communicates . . . the same”: no comment is necessary; the story was front-page news.
"To any person not entitled to receive it”: even the Times can’t argue that subway straphangers, or any other member of the public, was “entitled to receive” information about the classified operations about one of this country’s most secret and highly protected agencies.
Several years ago Erika Holzer and I wrote a book entitled “Aid and Comfort”: Jane Fonda in North Vietnam, which proved that her conduct in Hanoi made her indictable for, and convictable of, treason. We discovered that she was not indicted because of a political failure of will by the Nixon administration. To summarize a chapter of our book, suffice to say that the government was afraid to indict a popular anti-war actress who had the support of the radical left. Even today, three decades after Fonda’s trip to North Vietnam and three years after the publication of our book, we receive countless letters lamenting that Hanoi Jane was never punished for her conduct.
We tell them that it’s too late, that any possibility of seeing justice done for Fonda’s traitorous conduct is long gone. That is all the more reason why those of us who remember the Fonda episode, and who understand the nature and importance of today’s War on Terror, should not rest until the government calls to account The New York Times—in a court of law, with an indictment and hopefully a conviction, under the Espionage Act.