The Espionage Act and the "New York Times"
To the Editor:
Gabriel Schoenfeld illuminates one horn of the dilemma posed by unauthorized disclosures of classified information [“Has the New York Times Violated the Espionage Act?,” March]. Certainly the government has the authority and the duty to protect the nation against disclosures that could genuinely threaten national security. But there are reasons why prosecutors have never yet chosen to adopt Mr. Schoenfeld’s single-minded view of what the law requires.
When the New York Times disclosed the President’s warrantless surveillance program last December 16, it was not the first time in recent years that the strictures of Section 798 of Title 18 of the United States Code had arguably been violated. It was not even the hundredth time.
Newspapers and books have routinely purveyed stories involving classified communications intelligence for decades, and in several cases their authors have been rewarded not with prison but with prizes and celebrity status (think Bob Woodward, Seymour Hersh).
Nor are the offending publications all purportedly “liberal” in orientation. Almost certainly the most prolific conduit for publication of classified information, including communications-intelligence information, has been Bill Gertz of the Washington Times, who throughout most of the Clinton administration reported directly from classified sources just about every few days, and still does from time to time.
Yet these celebrated reporters still walk freely among us despite the fact that, if intelligence officials are to be believed, their stories have degraded intelligence methods and cost taxpayers many millions of dollars.
The point is that, while government agencies pursue leakers of classified information with whatever tools they can muster, it has long been accepted government practice to keep hands off the press that publishes the information. Have prosecutors somehow remained ignorant of the statutes that Mr. Schoenfeld so acutely analyzes? Probably not.
Rather, it appears there are competing societal interests at stake that until now have induced government to adopt a kind of constructive ambiguity on the matter and, in practice, to renounce the power to penalize press outlets.
What are those competing societal interests? One is the important role played by the press in the process of policy development. Without romanticizing the press or ignoring its evident defects, it seems objectively true that news coverage plays an integral role in the daily operation of government. Both for good and for ill, the news media help to set the public-policy agenda and to drive the congres-sional-oversight process. Efforts to impose new legal barriers on press coverage could have unpredictable adverse consequences.
Another societal interest is the ability of the press to compensate for unwarranted official secrecy by publishing information that should not or need not be classified. While it is true that the nation’s most sensitive secrets are classified, not everything that is classified is sensitive. In fact, the classification system has become a bizarre confection of genuine national-security secrets, bureaucratic fetishes, self-serving political manipulations, and inconsistencies. One example: the 1997 intelligence budget total was declassified in October 1997, but the 1957 and the 1967 budget totals remain classified. Why? Because the CIA says so! There is no other discernible reason.
I recently acquired a historical document that indicates that the 1972 budget appropriation for the National Security Agency was $65.2 million. This information remains classified, and is not acknowledged even today by the NSA. Furthermore, since it pertains specifically to communications-intelligence activities of the United States, albeit historical ones, my knowing and willful disclosure of it could conceivably be in violation of the same Section 798 that Mr. Schoenfeld suspects has been traduced by the New York Times. Should I therefore be prosecuted? Should Commentary be penalized for publishing the information in this letter? That would be absurd.
There seems to be, however, an unstated bargain with government that the press will not abuse this freedom beyond a certain point. The most influential purveyors of classified leaks also tend to be the most responsible in their editorial processes, consulting government officials prior to publication and offering them opportunities to argue against disclosure. As is well known, the New York Times held back its story on warrantless surveillance for a year.
Of course, not all classified secrets that might come into possession of the press are trivial and inconsequential. One can imagine circumstances in which a news organization commits such an outrageous breach of faith by publishing sensitive secrets as to invite public opprobrium and nullify the government’s tacit acceptance of the freedom to publish classified information.
Has the New York Times committed such a breach with its warrantless-surveillance story? I doubt it.
Federation of American Scientists
To the Editor:
The title of Gabriel Schoenfeld’s article is misleading. If the Times broke the law (and Mr. Schoenfeld is correct, in my view, that it did), it was not the Espionage Act but rather a separate and very specific statute that makes it a crime to publish communications intelligence. Be that as it may, however, the important question is not whether there was a technical violation of the statute but rather why the information was given to the Times and whether the paper should have published it.
The Foreign Intelligence Surveillance Act of 1978 (FISA) was passed after a series of leaks to the press revealed that Presidents had improperly used their power to conduct warrantless surveillance to spy on their political opponents while also gathering legitimate foreign intelligence. Congress wanted to make clear—to intelligence officers, Presidents, and private citizens alike—the circumstances under which it was appropriate to conduct electronic surveillance; it also wanted to have judges supervise the process. FISA was successful beyond anyone’s expectations. It permitted far more surveillance for legitimate purposes than had ever been done, and it prevented abuses. There were also no leaks about its workings.
When President Bush made the momentous and, in my view, clearly illegal decision to authorize warrantless surveillance, he broke this bargain. The result was that many officials were concerned about what the government was doing, and one or more of them went to the press as others had done prior to FISA’s enactment.
The administration has said that it did not go to Congress to seek an amendment to FISA after the attacks of September 11 because it did not believe that it could get the law changed without information leaking out that would jeopardize the new program. It has never elaborated on that implausible explanation—implausible because Congress’s record in enacting and amending FISA showed that it could be done without leaks, and because ordering this warrantless program was itself almost guaranteed to produce leaks.
What should the Times have done when it received the information? Exactly what it did do. Not rush to print but rather seek to verify the story and give the government ample opportunity to persuade the paper that the story should not run or that some details should be withheld. The Times has never explained why it held the story for a year or why it then decided to print it; nor do we know what specific facts it withheld.
Mr. Schoenfeld argues that the paper committed not only a shameful act but a crime. My view is that it may have violated a criminal statute but that its conduct was far from shameful. There is no evidence to back up the claim that the Times published the story as a reflection of the views presented on its editorial page about the government’s conduct of the war on terror. The separation of those two functions at the Times is well known, and the delay in publishing the story reflects far greater deference to the government’s views than is evident in its editorials.
The key question is whether the story published in the Times was likely to cause harm to national security. The Times concluded that it would not and that the public was entitled to know about a program that many consider to be illegal. Mr. Schoenfeld argues that the leak must have caused harm. He suggests that al Qaeda learned from the Times article that the NSA had “succeeded” in listening to all of its conversations. But the December 16 story said no such thing, only that the government was trying to intercept some conversations without a warrant. It is true that al Qaeda may be sloppy from time to time in how it communicates, but surely not because it did not believe, long before the Times published its story, that the NSA was trying to listen to its conversations. All the story revealed was that the NSA was listening to some calls without a warrant—not how successful it was or even under what circumstances it was trying to listen in.
The way to move forward to protect national security is not to indict the Times but to have the government explain what new authority it needs and then to have the Congress consider further amendments to FISA.
Open Society Institute
To the Editor:
Gabriel Schoenfeld raises a legitimate if somewhat provocative question in “Has the New York Times Violated the Espionage Act?” The case he presents is compelling, but in the end his assertions about the reach and intent of the 1917 Espionage Act are highly troubling.
During the 90 years of the law’s existence, no one in government has attempted to push it in the direction Mr. Schoenfeld advocates, because to do so would have been constitutionally questionable and politically incendiary. It would also have stunted vital governmental processes and subverted political discourse.
Contemporary political conditions are even more inhospitable to such adventurism. The nation’s capital has become an information-detention center. Thousands of federal employees are generating secrets at a breathtaking pace, even reclassifying material that has been in the public domain for decades. Congressional oversight has been tepid. Courts have been deferential. In these circumstances, the press remains one of the most important guarantors of effective political inquiry and discourse.
The federal prosecutors who chose to go after two recipients of leaked secrets in the AIPAC case dramatically broadened the scope of the Espionage Act. Prosecuting the New York Times or other members of the press for a practice that has proved repeatedly to be in the public interest would go even farther. Even the government prosecutors in the AIPAC case concede that applying the Espionage Act to the press “would raise legitimate and serious issues and would not be undertaken lightly.”
Their caution is well founded. To put in the hands of government officials unprecedented power to punish the press for publishing truthful information of real public concern is a frontal assault on the First Amendment. It assumes an infallibility on the part of political leaders that is not warranted given the reality of governmental abuse, mistakes, and miscalculations.
To interpret the Espionage Act in a way that equates journalists engaged in democratic discourse with spies engaged in perfidy would make the nation less secure as well as less free. Meaningful discourse about things that matter would be reduced to only those facts that are officially sanctioned, a prospect chilling enough even if all secrets were responsibly made and truly essential to national—as opposed to political—security.
First Amendment Center
To the Editor:
I completely agree with Gabriel Schoenfeld’s analysis that the New York Times should be prosecuted for violating the Espionage Act of 1917—right after George Bush is impeached for violating the Fourth Amendment of the U.S. Constitution. You do not have to be a constitutional lawyer to realize that
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
prohibits the NSA wire- tapping operation. But we would, of course, not know about that operation without the “treasonous” action of the New York Times.
To The Editor:
I am sure that Gabriel Schoenfeld’s call for prosecuting the New York Times has no political motivation whatsoever and could be sustained without the absurd proposition that al Qaeda never suspected its communications might be under surveillance. I am equally sure that Mr. Schoenfeld’s interest in investigating the Times for (possibly) breaking the law and his total lack of interest in investigating the administration for (almost certainly) breaking the law can be explained somehow (good luck!). What remains uncertain is who, exactly, benefits from this concern for state secrets and complete disregard for both the Bill of Rights and the checks and balances of our Constitution. What does seem clear is that positions like his, heartily supported by the most secretive White House in history, are making a mockery of democracy in this country.
To the Editor:
If letting the public know that we have a law-violating President who needs to be impeached violates the law, I only hope the New York Times continues to violate the laws of tyrants.
E.W. Scripps School of Journalism, Ohio University
Gabriel Schoenfeld writes:
In the brief interval since my article appeared, the issue of government secrets has gone from hot to scorching.
First, the Justice Department’s criminal investigation into the NSA leak is proceeding apace. A parallel investigation is under way into a story by Dana Priest that appeared in the Washington Post last November, reporting that the CIA had established clandestine prisons for al-Qaeda suspects somewhere in Eastern Europe. Already one high-ranking CIA officer, Mary O. McCarthy, has been dismissed by the agency for allegedly playing some role in the unauthorized disclosure.
Second, two other proceedings involving government secrets, the I. Lewis “Scooter” Libby case and the AIPAC case, continue to generate new and controversial revelations as they head toward trial. Opening a new front in the leak wars, the FBI has been attempting to retrieve classified documents, apparently connected to the AIPAC case in some way, from the estate of the late investigative journalist, Jack Anderson.
Third, the broader journalistic fraternity has circled the wagons around the journalists and media outlets that published the leaks. In March, James Risen and Eric Lichtblau, the two Times reporters who broke the NSA story, were awarded a Goldsmith prize by Harvard’s Joan Shorenstein Center on the Press, Politics & Public Policy. In April, the two won a Pulitzer prize, as did the Post’s Dana Priest.
In its news pages, the Times has twice taken brief note of my article and the controversy surrounding the paper’s actions. In a story appearing in early February, Bill Keller, the Times’s top editor, defended these actions on the grounds that the NSA story had “prompted an important national discussion of the balance between security and liberty.” In subsequent weeks, and particularly after the Goldsmith and Pulitzer prizes were awarded, he expanded and amplified his remarks, praising his paper and its reporters for making known a “highly secret program” in the face of vigorous official objections:
It’s rare that the government makes a concerted, top-level appeal to hold a story (I can think of only four or five instances in my nineteen years as an editor), and it’s even more rare that we agree. But we take such appeals seriously. We gave senior officials an opportunity to make their case. They laid out a detailed argument that publishing what we then knew would compromise ongoing anti-terror operations.
After the Pulitzer was announced, the Times, in a full-page advertisement congratulating Lichtblau and Risen, observed that the NSA story “was extraordinarily difficult to report,” especially because the two reporters “had to win the trust of those in the government who [knew] about the program,” and that the “peril [was] so great for public officials who talked about it.” It then concluded by suggesting that the story had caused little or no damage to national security; after all, the NSA program itself had “uncovered no active al-Qaeda plots and [had] led investigators to only a few potential terrorists in the country whom they did not know about from other sources.”
These developments and statements are useful to bear in mind as I respond to my critics. Let me begin with Mark Kuperberg, whose main point is that George Bush should be impeached for initiating the NSA program. Waxing sarcastic, he expresses gratitude to the Times for its “‘treasonous’” conduct in bringing Bush’s actions to light.
But, of course, not every violation of the Espionage Act constitutes treason. The statute encompasses a number of lesser offenses, and those are what I was discussing in my article. I never accused the Times of treason or even mentioned the word. Seeing Professor Kuperberg attribute it to me in quotation marks is another reminder, if one were needed, of how political discussion is routinely conducted in the academy these days.
Nor did my article concern itself with the question of whether Bush committed an impeachable offense in connection with the NSA surveillance of terrorists—as Joe Bernt, another professor, assumes in his declamatory missive. Even if it could be conclusively shown that President Bush had somehow violated the law—and, pace Morton Halperin, that proposition remains debatable—it would still leave unresolved the issues surrounding the actions of the New York Times in disclosing highly classified government secrets.
As I noted in my article, the secret NSA program revealed by the Times was not a case, like Watergate, of the executive branch of government running amok and trampling on civil liberties for personal or political gain or other nefarious pur- poses. Justice Department lawyers had reviewed the program at length, and leading members of both parties in both chambers of Congress were briefed about it on numerous occasions. If any of those members of Congress had objections to what the NSA was doing, they had a variety of proper means by which to register their dissenting views, and even to seek legal redress, without turning to the press.
Government officials in the executive branch likewise had other avenues. As I pointed out in my article, intelligence officers who uncover illegal conduct have, under the Intelligence Community Whistleblowers Act of 1998, a set of procedures that allow them to report misdeeds through classified channels and that ensure their complaints will be duly and properly considered. These procedures emphatically do not encompass blowing vital secrets by disclosing them to al Qaeda via the New York Times.
In this connection, it is worth reflecting on Bill Keller’s comment about the great “peril” to which public officials exposed themselves for revealing government secrets to the Times. Are these “whistleblowers” heroes, as the Times and other newspapers like to portray them, or something else entirely?
One way to answer this is to consider the oath that government employees must swear before being granted access to official secrets. The oath is contained in a standard document entitled “Classified Information Nondisclosure Agreement,” which includes the following words:
I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation.
I hereby agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) I have been given prior written notice of authorization from the United States Government Department or Agency (hereinafter Department or Agency) responsible for the classification of the information or last granting me a security clearance that such disclosure is permitted. . . .
I further understand that I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified information. . . .
I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws. . . .
I understand that all conditions and obligations imposed upon me by this Agreement apply during the time I am granted access to classified information, and at all times thereafter. . . .
I reaffirm that the provisions of the espionage laws [emphasis added], other federal criminal laws and executive orders applicable to the safeguarding of classified information have been made available to me; that I have returned all classified information in my custody; that I will not communicate or transmit classified information to any unauthorized person or organization; that I will promptly report to the Federal Bureau of Investigation any attempt by an unauthorized person to solicit classified information.
No one who appends his name to this non-disclosure agreement is compelled to do so; government officials sign it of their own free will. Is there anything about it that is in any way unclear? The U.S. government rightly does not think so. For passing relatively innocuous secrets (innocuous, that is, compared to what was contained in the New York Times article of December 16) to two officials of AIPAC, Lawrence Franklin, a Defense Department official, was recently sentenced to twelve years in prison.
The leakers of classified government documents are not heroes. Often acting from partisan motives or for personal gain, and almost always under the cover of anonymity, they are law-brakers willing to imperil the nation but not their careers. Journalists who publish sensitive intelligence secrets for the entire world to read, sometimes also from partisan motives (see James Risen’s Bush-bashing book, State of War) or for personal gain and sometimes out of a conviction, now widespread in their profession, that they are journalists first and citizens subject to U.S. law second (see all the various statements of Bill Keller), fall into the same suspect class.
Although portions of the Espionage Act are riddled with ambiguous language, the provisions governing unauthorized publication of classified communications intelligence are perfectly clear, and the Times’s actions unequivocally violated them. I find it striking that not one of my correspondents challenges this; Morton Halperin explicitly affirms it. Instead, my interlocutors offer reasons why the law has not been enforced in the past and should not be enforced in this instance.
Steven Aftergood, whose reasoned and well-informed letter stands in welcome contrast to those from the sloganeering professors, makes this case most cogently. Let me attempt to answer his various points.
To begin with, I would not quarrel with Mr. Aftergood’s claim that the government has a tendency to classify far too much information, and sometimes does so for reasons having little to do with national security, resulting in the “bizarre confection” to which he refers. But the answer is hardly for the press to appoint itself as arbiter of what is legitimately secret and what is not.
We live in a democracy in which Congress sets the laws and oversees the way they are carried out. If Congress, representing the American people, comes to believe that the executive branch is creating too many secrets, it has ample power to set things right, by funding faster and better declassification and/ or by changing the declassification rules. If, by contrast, a newspaper like the New York Times believes it has an obligation to publish a government secret, it should be prepared to accept the consequences as they have been set in law by the American people and its elected officials.
One of my correspondents, Jon Sherman, calls this idea a “mockery of democracy” and another, Joe Bernt, calls it “the law of tyrants.” In fact, maintaining national-security secrets in an orderly way is integral to the workings of democracy, essential to its protection, fundamental to the rule of law, and—despite what a raft of civil libertarians and journalists is now saying—entirely consistent with what our Founding Fathers had in mind. Indeed, as Joseph Story’s classic commentary on the Constitution make clear, the idea that the First Amendment “was intended to secure every citizen an absolute right to . . . print whatever he might please, without any responsibility, public or private . . . is a supposition too wild to be indulged by any rational man.”
Mr. Aftergood’s contention—citing the reporting of Bob Woodward, Seymour Hersh, and Bill Gertz—that Section 798 of the Espionage Act has been broken repeatedly in recent decades without eliciting prosecution is, alas, indisputable. Without doubt, he is also correct that there is a great reluctance within the Justice Department to pursue cases against the media. In a statement filed in the AIPAC case, the department (as Paul McMasters observes in his letter) acknowledged this explicitly, noting that “the fact that there has never been such a prosecution speaks for itself.”
But one of my purposes in writing my article was to challenge this stance. Our attitudes and practices regarding government secrecy urgently need to adapt to the new world that was created on September 11. The good news is that government policy toward secrets has been changing. The bad new is that it has been changing in only the most haphazard and ill-thought-out ways.
A case in point is the decision to bring charges against the two AIPAC officials, itself an unprecedented application of the Espionage Act. Even if we were to assume, for the sake of argument, that the two lobbyists are guilty as charged, the classified information they are alleged to have improperly obtained and transmitted pales, as I have already noted, in comparison with the closely-guarded secrets that were conveyed to al Qaeda via the pages of the New York Times.
At the same time, the provision of the Espionage Act (Section 793) that the AIPAC men are charged with violating is notoriously vague and—when applied to non-governmental persons, as in this instance—subject to legitimate challenge on constitutional grounds. By contrast, the provision of the law (Section 798) bearing on the Times’s behavior is a model of clarity, and stands constitutionally unchallenged and unchallengeable. In 1950, when it was enacted as an amendment to the Espionage Act, Section 798 was endorsed by the American Society of Newspapers Editors (of which ranking Times editors were active members). As the investigation of the NSA leak continues, my hope is that the glaring discrepancy between the handling of these two cases will be brought to light.
Along with a number of other correspondents, Mr. Aftergood suggests that only minimal damage was done by disclosure of the NSA program. Even before the Times story appeared, so the argument goes, al-Qaeda operatives had cause to believe that their telephone and email messages were not secure, and they refrained from communicating through such channels. All the New York Times did, therefore, was to confirm a fact already widely known, without interfering with actual counterterrorism operations.
There is a certain surface plausibility to this contention. Beneath the surface, however, it ignores both logic and basic facts. Of course, my critics are no more privy than I am to the actual workings of the NSA program, and so we cannot confidently judge the actual costs of the New York Times’s disclosure. But the public statements of those who are privy to such knowledge are not reassuring. Jane Harman, the ranking Democratic member of the House Intelligence Committee, has said that the leak “damaged critical intelligence capabilities.” None of my correspondents offers the slightest reason to doubt her words.
As the recent Madrid and London subway bombings make plain, to finance, plan, and carry out even a relatively modest terrorist operation requires an extensive exchange of information. And a moment’s thought makes clear that there are not many available channels in which such an exchange can occur. Smoke signals from mountaintop to cave might suffice in a place like Afghanistan, but they would hardly work well in planning an operation to hit New York City out of Waziristan.
Couriers present a different set of problems; they are typically much too slow and run great risks when crossing international borders. The global postal system is also slow, unreliable, and vulnerable to interception. In terms of speed, clarity, reliability, and security, telephone and email simply cannot be surpassed. This explains why, even after September 11, al-Qaeda operatives are known to have continued talking on open lines. Determined to mount further coordinated actions, they have had little choice.
The New York Times, in stating that the NSA program “led investigators to only a few potential terrorists in the country whom they did not know about from other sources” (emphasis added), has unwittingly made a devastating admission about the harm it may have inflicted on our country’s security. Three of the four planes hijacked on September 11 were commandeered by only five men; one was commandeered by four. Together, these “few” terrorists caused massive destruction and took some 3,000 lives. If, in the post-September 11 era, the NSA surveillance program enabled our government to uncover even a “few” potential terrorists in the U.S., it was doing its job, doing it well, and, depending on who exactly these few potential terrorists were, doing it perhaps spectacularly well.
If, moreover, the New York Times story of December 16, 2005 did not completely compromise the NSA program, the details that the paper subsequently published, the even fuller elaboration in James Risen’s book, and the attendant hailstorm of publicity effectively finished the job. Al-Qaeda operatives were put on notice not merely that they risked having their international communications intercepted but that interception was a near certainty. Not long after that revelation, in all likelihood, such communications ceased. Just as the disclosures undoubtedly threw a wrench into the work of terrorist planners, they threw an even larger wrench into our efforts to uncover their plots.
Compounding this damage is harm of a more general sort. In waging the war on terrorism, the U.S. depends heavily on cooperation with the intelligence agencies of allied countries. When our own intelligence services, including the NSA, the most secretive branch of all, demonstrate that that they are unable to keep shared information under wraps, international cooperation dries up. According to Porter Goss, director of the CIA in this period, “Too many of my counterparts from other countries have told me, ‘You Americans can’t keep a secret’. . . and some of these critical partners have even informed the CIA that they are reconsidering their participation in some of our most important antiterrorism ventures.”
If counterterrorism were a parlor game—and that is how, in their recent cavalier treatment of sensitive intelligence secrets, the Washington Post and the New York Times seem to regard it—Goss’s fretting could be easily dismissed. But every American was made aware on September 11 of the price of an intelligence shortfall. This is no game, but a matter of life and death.