Commentary Magazine


Topic: James Risen

The Leak Inquisition and Press Freedom

The United States has a right to protect secrets. Though President Obama often speaks as if the West is not still locked in a life-and-death struggle with Islamist terrorists, the security needs of this nation are still considerable and require discretion on the part of those entrusted with them. But even those who honor the notion that the public does not need to know every bit of classified information in the possession of the government should be alarmed at the willingness of the administration to act as if leaking is the primary threat to the rule of law. The alarming nature of the Department of Justice’s jihad against the press was made all too clear early this year when news of the government’s spying on Associated Press reporters and Fox News correspondent James Rosen was revealed. But if a federal appellate court ruling issued last week stands, the problem may be far worse than we thought.

On Friday, the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia decided that New York Times reporter James Risen must testify in the trial of a former CIA official accused of leaking information that was allegedly used to help write a 2006 book. Doing so would not just violate Risen’s pledge not to reveal his sources but would constitute a major infringement of press freedom that could have serious consequences for the future of American democracy. While the right to shield sources is not absolute, by ruling in this manner, the Fourth Circuit could be establishing a precedent that will make it impossible not just to pursue investigative journalism, which relies on confidential sources, but for news gathering organizations to conduct any sort of scrutiny of the intelligence and defense establishment. Though this ruling has not gotten a fraction of the coverage accorded to the AP and Rosen scandals, it is potentially more far-reaching in its scope. For once, I agree with the Times editorial column which rightly says today that this ruling should be overturned by the U.S. Supreme Court.

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The United States has a right to protect secrets. Though President Obama often speaks as if the West is not still locked in a life-and-death struggle with Islamist terrorists, the security needs of this nation are still considerable and require discretion on the part of those entrusted with them. But even those who honor the notion that the public does not need to know every bit of classified information in the possession of the government should be alarmed at the willingness of the administration to act as if leaking is the primary threat to the rule of law. The alarming nature of the Department of Justice’s jihad against the press was made all too clear early this year when news of the government’s spying on Associated Press reporters and Fox News correspondent James Rosen was revealed. But if a federal appellate court ruling issued last week stands, the problem may be far worse than we thought.

On Friday, the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia decided that New York Times reporter James Risen must testify in the trial of a former CIA official accused of leaking information that was allegedly used to help write a 2006 book. Doing so would not just violate Risen’s pledge not to reveal his sources but would constitute a major infringement of press freedom that could have serious consequences for the future of American democracy. While the right to shield sources is not absolute, by ruling in this manner, the Fourth Circuit could be establishing a precedent that will make it impossible not just to pursue investigative journalism, which relies on confidential sources, but for news gathering organizations to conduct any sort of scrutiny of the intelligence and defense establishment. Though this ruling has not gotten a fraction of the coverage accorded to the AP and Rosen scandals, it is potentially more far-reaching in its scope. For once, I agree with the Times editorial column which rightly says today that this ruling should be overturned by the U.S. Supreme Court.

Compelling Risen to testify in what is, after all, a criminal trial, may not seem unreasonable to those who are justifiably angry about the way classified information seems to be flowing from the government via WikiLeaks, Edward Snowden, and countless other examples of leaking, especially those with a political axe to grind. But while prosecuting leakers is justifiable, the government’s effort to criminalize journalism is not.

Attorney General Eric Holder was widely and rightly criticized for the Department of Justice’s outrageous description of Rosen as a “co-conspirator” along with a government employee in the crime of disclosing classified information. Journalists are not above the law, but in order to do their jobs they must have the right to speak to government officials and not be treated as felons for normal interactions with sources. Since the furor over DOJ’s wrongful conduct in the Rosen case, Holder has issued guidelines for dealing with the press to prosecutors that will supposedly ensure that this sort of unjustified snooping won’t be repeated. But the Fourth Circuit has seemingly given a seal of approval to prosecutorial abuses that are just as bad as the conduct Holder sought to abolish.

A government that makes it next to impossible for investigative journalism to thrive is not one that has a thriving free press. If Holder and his boss President Obama are truly serious about press freedom and putting this scandal to rest, they will save the high court the trouble of overruling the Fourth Circuit, and quash Risen’s subpoena immediately. Government secrets are important, but not more important than preserving the First Amendment.

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Another Day, Another Security Leak

The New York Times reported Monday that General David Petraeus issued a secret directive in September, expanding covert military operations in the Middle East. The author, Mark Mazzetti, states that the Times’ staff has viewed a copy of the document. Preparation for the article included speaking to government officials who discussed its contents only on condition of anonymity, because it’s classified.

Fortunately, our information security usually works better than this. Leaks of national-security secrets are the exception and not the rule. But once again, someone on the government payroll, with a clearance, and with knowledge of classified current operations, has broken the law by disclosing what he knows to unauthorized recipients in the press.

It’s unlikely that we will be told someday that the leaker of the Petraeus directive took action because of sleepless nights and professional agony, as Newsweek reported in 2008 of one warrantless-wiretapping leaker who called the New York Times in 2004. In the case of the Petraeus directive, there is no apparent reason for a leaker to be motivated by concern about government overreach or civil rights. Perhaps the motive is disagreement with the policy.

But these leakers aren’t romantic heroes; they are people breaking their government’s security oaths. Thomas Tamm, the known wiretapping leaker, has been investigated (and lionized by the left) but never prosecuted. Yet it’s clear he broke his security oath by going to the media. It’s also clear from the Newsweek story that he came nowhere near exhausting his lawful options for registering concern about the wiretapping program. He apparently talked to a former colleague on the Senate Judiciary Committee — but not to his full chain of command at the Justice Department, to the Justice Department Inspector General, or to the intelligence oversight committee of either house of Congress.

James Risen, the Times reporter who broke the wiretapping story, was subpoenaed by Eric Holder last month to disclose the government sources for another of his classified revelations: this one involving information about U.S. efforts against Iran in his 2006 book State of War. Risen has refused to comply. His fate is uncertain; presumably, he might be jailed for contempt of court as Judith Miller was in the Valerie Plame Wilson case.

Miller ultimately agreed to testify after obtaining immunity. While the Plame Wilson case is not the best example of the real problems created by national-security leaks, the outcome with Miller was the right one for more genuinely damaging cases. The “journalist shield” exception should not protect government leakers who are committing felonies by the very act of disclosing classified information to the press.  Journalists should have to tell the authorities who they are.

The New York Times reported Monday that General David Petraeus issued a secret directive in September, expanding covert military operations in the Middle East. The author, Mark Mazzetti, states that the Times’ staff has viewed a copy of the document. Preparation for the article included speaking to government officials who discussed its contents only on condition of anonymity, because it’s classified.

Fortunately, our information security usually works better than this. Leaks of national-security secrets are the exception and not the rule. But once again, someone on the government payroll, with a clearance, and with knowledge of classified current operations, has broken the law by disclosing what he knows to unauthorized recipients in the press.

It’s unlikely that we will be told someday that the leaker of the Petraeus directive took action because of sleepless nights and professional agony, as Newsweek reported in 2008 of one warrantless-wiretapping leaker who called the New York Times in 2004. In the case of the Petraeus directive, there is no apparent reason for a leaker to be motivated by concern about government overreach or civil rights. Perhaps the motive is disagreement with the policy.

But these leakers aren’t romantic heroes; they are people breaking their government’s security oaths. Thomas Tamm, the known wiretapping leaker, has been investigated (and lionized by the left) but never prosecuted. Yet it’s clear he broke his security oath by going to the media. It’s also clear from the Newsweek story that he came nowhere near exhausting his lawful options for registering concern about the wiretapping program. He apparently talked to a former colleague on the Senate Judiciary Committee — but not to his full chain of command at the Justice Department, to the Justice Department Inspector General, or to the intelligence oversight committee of either house of Congress.

James Risen, the Times reporter who broke the wiretapping story, was subpoenaed by Eric Holder last month to disclose the government sources for another of his classified revelations: this one involving information about U.S. efforts against Iran in his 2006 book State of War. Risen has refused to comply. His fate is uncertain; presumably, he might be jailed for contempt of court as Judith Miller was in the Valerie Plame Wilson case.

Miller ultimately agreed to testify after obtaining immunity. While the Plame Wilson case is not the best example of the real problems created by national-security leaks, the outcome with Miller was the right one for more genuinely damaging cases. The “journalist shield” exception should not protect government leakers who are committing felonies by the very act of disclosing classified information to the press.  Journalists should have to tell the authorities who they are.

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Where is James Risen?

On January 24, a federal grand jury issued a subpoena to James Risen of the New York Times, seeking information about who in the U.S. government provided him with classified information that he published in his book, State of War. According to the Associated Press, Risen was ordered to appear in an Alexandria court house on February 7. That date has come and gone without any sightings of Risen entering the court house.  The story of the subpoena, which was also reported by the Times itself, has disappeared.

What happened here? Did Risen skip court or were the proceedings delayed? And why are the newspapers keeping us uninformed? Are any readers of Connecting the Dots monitoring the doors, front and back, of the Alexandria court house, and if so, can they enlighten us?

On January 24, a federal grand jury issued a subpoena to James Risen of the New York Times, seeking information about who in the U.S. government provided him with classified information that he published in his book, State of War. According to the Associated Press, Risen was ordered to appear in an Alexandria court house on February 7. That date has come and gone without any sightings of Risen entering the court house.  The story of the subpoena, which was also reported by the Times itself, has disappeared.

What happened here? Did Risen skip court or were the proceedings delayed? And why are the newspapers keeping us uninformed? Are any readers of Connecting the Dots monitoring the doors, front and back, of the Alexandria court house, and if so, can they enlighten us?

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James Risen in Chains

Is the Justice Department subpoena to James Risen of the New York Times a threat to the rule of law? Or, as I argue in the latest Weekly Standard, is the subpoena amply justified?

Liberals and the Left have been surprisingly mute about the issue of leaks of classified information and the Justice Department’s response. A recent exception comes from Glenn Greenwald of Salon, who is highly alarmed by the DOJ’s action:

Grand Jury Subpoenas such as the one issued to Risen have as their principal purpose shutting off that avenue of learning about government wrongdoing — the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress.

Greenwald’s analysis is worth reading in full. He offers some interesting speculation about why this issue is coming to the fore now, most of it centering on the appointment of Michael Mukasey as Attorney General. But I found the most fascinating portion of his column to be the blank spot in its very center.

Greenwald is a constitutional lawyer, but he offers not a word of discussion about the legal and constitutional issues involved in the publication of classified information by journalists. This left me curious to know several things:

1.  Could it ever be a crime, in his view, for a “whistleblower” to disclose classified information?

2.  Could there ever be a legitimate reason for the Justice Department to issue a subpoena to a journalist (even the shield law making its way through Congress has a national-security exception, too narrowly drawn in my view, but an exception all the same)?

3.  Could there ever be a legitimate reason, in his view, for the Justice Department to prosecute a journalist who publishes classified information?

Perhaps Greenwald will come up with some answers at Salon and we will see the beginnings of a proper debate.

Is the Justice Department subpoena to James Risen of the New York Times a threat to the rule of law? Or, as I argue in the latest Weekly Standard, is the subpoena amply justified?

Liberals and the Left have been surprisingly mute about the issue of leaks of classified information and the Justice Department’s response. A recent exception comes from Glenn Greenwald of Salon, who is highly alarmed by the DOJ’s action:

Grand Jury Subpoenas such as the one issued to Risen have as their principal purpose shutting off that avenue of learning about government wrongdoing — the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress.

Greenwald’s analysis is worth reading in full. He offers some interesting speculation about why this issue is coming to the fore now, most of it centering on the appointment of Michael Mukasey as Attorney General. But I found the most fascinating portion of his column to be the blank spot in its very center.

Greenwald is a constitutional lawyer, but he offers not a word of discussion about the legal and constitutional issues involved in the publication of classified information by journalists. This left me curious to know several things:

1.  Could it ever be a crime, in his view, for a “whistleblower” to disclose classified information?

2.  Could there ever be a legitimate reason for the Justice Department to issue a subpoena to a journalist (even the shield law making its way through Congress has a national-security exception, too narrowly drawn in my view, but an exception all the same)?

3.  Could there ever be a legitimate reason, in his view, for the Justice Department to prosecute a journalist who publishes classified information?

Perhaps Greenwald will come up with some answers at Salon and we will see the beginnings of a proper debate.

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A CIA Cover-Up?

On January 24, a federal grand jury in Alexandria issued a subpoena to James Risen of the New York Times, seeking information about who in the U.S. government provided him with classified information that he published in his book, State of War. That book appeared in January 2006, more than two years ago. The CIA may have a hard time keeping secrets, but the Justice Department, we are learning now that this long-running leak inquest has come to light, seems to be very good at it.

There are at least two possibilities why Risen was issued a subpoena. One is that his book badly embarrassed the CIA by exposing incompetence well beyond its familiar inability to keep secrets. In referring the breach to the Justice Department for investigation, the CIA is paying him back. The subpoena, in other words, is part and parcel of a cover-up of agency bungling.

Another explanation is that, thanks to Risen’s book, valuable intelligence sources and methods were compromised, damage was done to national security, and the Justice Department has been tasked with tracking down the malefactors in the intelligence community who broke their oaths of secrecy, violated the law, and dropped classified information of value to American adversaries into the public domain. Because Risen is the only one who knows their identity, he is being hauled before a grand jury.

Which explanation is more plausible? I offer some answers in the latest edition of the Weekly Standard.

On January 24, a federal grand jury in Alexandria issued a subpoena to James Risen of the New York Times, seeking information about who in the U.S. government provided him with classified information that he published in his book, State of War. That book appeared in January 2006, more than two years ago. The CIA may have a hard time keeping secrets, but the Justice Department, we are learning now that this long-running leak inquest has come to light, seems to be very good at it.

There are at least two possibilities why Risen was issued a subpoena. One is that his book badly embarrassed the CIA by exposing incompetence well beyond its familiar inability to keep secrets. In referring the breach to the Justice Department for investigation, the CIA is paying him back. The subpoena, in other words, is part and parcel of a cover-up of agency bungling.

Another explanation is that, thanks to Risen’s book, valuable intelligence sources and methods were compromised, damage was done to national security, and the Justice Department has been tasked with tracking down the malefactors in the intelligence community who broke their oaths of secrecy, violated the law, and dropped classified information of value to American adversaries into the public domain. Because Risen is the only one who knows their identity, he is being hauled before a grand jury.

Which explanation is more plausible? I offer some answers in the latest edition of the Weekly Standard.

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Loose Lips Sink Newspapers

Finally, action. A federal prosecutor has issued a subpoena to James Risen of the New York Times, one of two reporters at the paper who compromised the National Security Agency’s (NSA) Terrorist Surveillance Program in December 2005.

Risen himself does not appear to be under investigation. Indeed, prosecutors do not appear to be investigating the NSA leak at this moment. Rather, they are seeking the confidential sources that led to the disclosure of an entirely different secret, one that did not appear in Risen’s newspaper, but only in a chapter of Risen’s book, State of War. It reported that the CIA had attempted to infiltrate Iran’s nuclear program and described a number of other highly classified details about covert efforts in that area.

Why is this investigation proceeding now? Connecting the Dots has no inside information. But Connecting the Dots was seated at the same table as Michael Mukasey and his wife at two dinners in the last three years, back when the future Attorney General was still a mere federal judge. The leaks in the New York Times did not come up for discussion, but Mukasey made plain he was a close reader of COMMENTARY.

Did he read a certain article in COMMENTARY entitled Has the New York Times Violated the Espionage Act? That’s a question James Risen — and Bill Keller, too — should be thinking about.

Finally, action. A federal prosecutor has issued a subpoena to James Risen of the New York Times, one of two reporters at the paper who compromised the National Security Agency’s (NSA) Terrorist Surveillance Program in December 2005.

Risen himself does not appear to be under investigation. Indeed, prosecutors do not appear to be investigating the NSA leak at this moment. Rather, they are seeking the confidential sources that led to the disclosure of an entirely different secret, one that did not appear in Risen’s newspaper, but only in a chapter of Risen’s book, State of War. It reported that the CIA had attempted to infiltrate Iran’s nuclear program and described a number of other highly classified details about covert efforts in that area.

Why is this investigation proceeding now? Connecting the Dots has no inside information. But Connecting the Dots was seated at the same table as Michael Mukasey and his wife at two dinners in the last three years, back when the future Attorney General was still a mere federal judge. The leaks in the New York Times did not come up for discussion, but Mukasey made plain he was a close reader of COMMENTARY.

Did he read a certain article in COMMENTARY entitled Has the New York Times Violated the Espionage Act? That’s a question James Risen — and Bill Keller, too — should be thinking about.

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Is the CIA a “Fifth Column”?

Why was the declassified summary of the latest Iran NIE drafted, as I believe it was, in such a way as to subvert U.S. policy toward Iran? Why do officials at the CIA regularly leak information that undermines the Bush administration? Why do left-wing journalists like Seymour Hersh and James Risen enjoy so much access to closely held intelligence information? Do the personnel who staff this vital intelligence bureaucracy see themselves as dispassionate civil servants dedicated to the craft of intelligence or something else?

It is of course difficult to generalize about the men and women of an institution as large and diverse as the CIA. But it is worth recalling something written by our current Secretary of Defense, Robert Gates, in his memoir, From the Shadows.

In 1969, when Gates was twenty-five, he found himself a junior analyst in the agency, working on Soviet policy toward Africa and the Middle East. The Vietnam war was raging, the country was bitterly divided, and attitudes inside the agency had already strongly tilted in one direction: “I and virtually all of my friends and acquaintances in CIA,” writes Gates,

were opposed to the war and to any prolonged strategy for extracting us. Feelings among my colleagues –  and nearly all of the men in those days were military veterans — were strong. Many from the CIA marched in antiwar demonstrations on the Mall and at the Pentagon. My one and only was the May 9, 1970 demonstration  after the U.S. military offensive in Cambodia.

Popular impressions then and now about CIA — especially as a conservative, cold-war bureaucratic monolith — have always been wrong. In the late 1960’s and early 1970’s not only was antiwar sentiment strong at the Agency, we were also influenced by the counterculture. There is not a doubt in my mind that some of my older colleagues and supervisors, presumably influenced in some measure by their college-age children, experimented with marijuana and perhaps even other drugs. Antiwar and anti-Nixon posters and bumper stickers festooned CIA office walls.

Gates subsequently grew up and went on to a distinguished career, including a stint as director of the CIA and many other top-level jobs. Whatever he now thinks of Vietnam, he has clearly had a change of mind about the behavior of his colleagues in those years. Indeed, he goes so far as to speak of the agency of his youth as “a not inconsiderable Fifth Column” within the Nixon administration.

Today, like then, the country is deeply polarized by a controversial war. And today, like then, government bureaucracies, like so many sponges, absorb the attitudes and ideas circulating in the broader society. The CIA is no exception. Is it possible that our premier intelligence agency has become, once again, “a not inconsiderable Fifth Column”?

Connecting the Dots would welcome sightings from inside Langley. Are anti-Bush posters and bumper stickers festooning CIA office walls today? Are some CIA officers smoking marijuana in classified documents vaults, or are they just acting like it?

Why was the declassified summary of the latest Iran NIE drafted, as I believe it was, in such a way as to subvert U.S. policy toward Iran? Why do officials at the CIA regularly leak information that undermines the Bush administration? Why do left-wing journalists like Seymour Hersh and James Risen enjoy so much access to closely held intelligence information? Do the personnel who staff this vital intelligence bureaucracy see themselves as dispassionate civil servants dedicated to the craft of intelligence or something else?

It is of course difficult to generalize about the men and women of an institution as large and diverse as the CIA. But it is worth recalling something written by our current Secretary of Defense, Robert Gates, in his memoir, From the Shadows.

In 1969, when Gates was twenty-five, he found himself a junior analyst in the agency, working on Soviet policy toward Africa and the Middle East. The Vietnam war was raging, the country was bitterly divided, and attitudes inside the agency had already strongly tilted in one direction: “I and virtually all of my friends and acquaintances in CIA,” writes Gates,

were opposed to the war and to any prolonged strategy for extracting us. Feelings among my colleagues –  and nearly all of the men in those days were military veterans — were strong. Many from the CIA marched in antiwar demonstrations on the Mall and at the Pentagon. My one and only was the May 9, 1970 demonstration  after the U.S. military offensive in Cambodia.

Popular impressions then and now about CIA — especially as a conservative, cold-war bureaucratic monolith — have always been wrong. In the late 1960’s and early 1970’s not only was antiwar sentiment strong at the Agency, we were also influenced by the counterculture. There is not a doubt in my mind that some of my older colleagues and supervisors, presumably influenced in some measure by their college-age children, experimented with marijuana and perhaps even other drugs. Antiwar and anti-Nixon posters and bumper stickers festooned CIA office walls.

Gates subsequently grew up and went on to a distinguished career, including a stint as director of the CIA and many other top-level jobs. Whatever he now thinks of Vietnam, he has clearly had a change of mind about the behavior of his colleagues in those years. Indeed, he goes so far as to speak of the agency of his youth as “a not inconsiderable Fifth Column” within the Nixon administration.

Today, like then, the country is deeply polarized by a controversial war. And today, like then, government bureaucracies, like so many sponges, absorb the attitudes and ideas circulating in the broader society. The CIA is no exception. Is it possible that our premier intelligence agency has become, once again, “a not inconsiderable Fifth Column”?

Connecting the Dots would welcome sightings from inside Langley. Are anti-Bush posters and bumper stickers festooning CIA office walls today? Are some CIA officers smoking marijuana in classified documents vaults, or are they just acting like it?

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Fare Thee Well, Alberto Gonzales, and Good Riddance

Alberto Gonzales is leaving the Justice Department with a lot of sensitive business pending. One open case of exceptional importance concerns the leak of highly classified information about the National Security Agency’s terrorist-surveillance program. Details of the program were published in the New York Times in a series of articles beginning on December 16, 2005, and supplemented in State of War, a book by Times reporter James Risen, which came out the following month.

A grand jury has been investigating the leak since January 2006. Earlier this month, a former Justice Department lawyer by the name of Thomas M. Tamm had his home searched and his computers, including two of his children’s laptops, seized, along with his personal papers, in a raid by the FBI. Newsweek’s Michael Isikoff reported that the raid was connected to a criminal probe into the NSA wiretapping leak.

Gonzales’s own participation in this case is of a piece with his overall performance: fecklessness combined with an inability to articulate a clear position. The fact is that the NSA leak in the Times occurred in the middle of a war. It concerned not secrets from the past, as in the 1971 Pentagon Papers case (also involving a leak to the Times), but an ongoing operational-intelligence program designed to prevent a second September 11. On its face, as I argued in COMMENTARY, the Times had violated Section 798 of Title 18, which makes it a crime to disclose classified information pertaining to communications intelligence.

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Alberto Gonzales is leaving the Justice Department with a lot of sensitive business pending. One open case of exceptional importance concerns the leak of highly classified information about the National Security Agency’s terrorist-surveillance program. Details of the program were published in the New York Times in a series of articles beginning on December 16, 2005, and supplemented in State of War, a book by Times reporter James Risen, which came out the following month.

A grand jury has been investigating the leak since January 2006. Earlier this month, a former Justice Department lawyer by the name of Thomas M. Tamm had his home searched and his computers, including two of his children’s laptops, seized, along with his personal papers, in a raid by the FBI. Newsweek’s Michael Isikoff reported that the raid was connected to a criminal probe into the NSA wiretapping leak.

Gonzales’s own participation in this case is of a piece with his overall performance: fecklessness combined with an inability to articulate a clear position. The fact is that the NSA leak in the Times occurred in the middle of a war. It concerned not secrets from the past, as in the 1971 Pentagon Papers case (also involving a leak to the Times), but an ongoing operational-intelligence program designed to prevent a second September 11. On its face, as I argued in COMMENTARY, the Times had violated Section 798 of Title 18, which makes it a crime to disclose classified information pertaining to communications intelligence.

In making the argument in COMMENTARY for prosecution, I understood full well that the probability that the Justice Department would bring an indictment of the editors and reporters of our leading newspaper was close to nil, and I said so at the time. But at the very least, a competent and articulate Attorney General, even if he saw compelling reasons not to proceed with a prosecution, could have stood up to explain both the law and its significance in wartime. A proper and much-needed public discussion would have ensued.

Gonzales did neither. Instead, he issued a very general statement: “Our prosecutors are going to look to see all the laws that have been violated. And if the evidence is there, they’re going to prosecute those violations,” and he did not follow up with any sort of action or further explanation.

The nation was rewarded for Justice’s forbearance by the subsequent publication in the Times of details of still another highly classified counterterrorism program involving terrorist financing.

Gonzales is now gone, but it is obvious that, with respect to the NSA terrorist-surveillance program, he has left us in the worst of all possible worlds. Liberals continue to express outrage at what they regard as a mortal threat to the First Amendment. The Justice Department has let stand unrebutted the false proposition that our Constitution is incompatible with laws forbidding the media to publish vital secrets. And the press continues to feel free to publish counterterrorism secrets with abandon.

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Will the New York Times Finally Be Indicted?

Is it possible that the New York Times could still be indicted for revealing the existence of the NSA’s Terrorist Surveillance Program in a December 2005 front-page story?

Shortly after the revelation appeared, a federal grand jury was empaneled to investigate the leak. A range of government officials, including Jane Harmon, then the ranking Democrat of the House Intelligence Committee, pointed to the severe damage that the Times story did to our efforts to intercept al-Qaeda communications and thwart a second September 11. Shortly thereafter, President Bush called the newspaper’s conduct “shameful.”

I agreed with these assessments. In fact, I argued in March 2006 that the New York Times had also broken the black-letter law. It had breached the provisions of Section 798 of Title 18, which make it a crime to publish classified information concerning the interception of communications intelligence. Shortly thereafter, Attorney General Alberto Gonzalez hinted that, in light of several statutes on the books, the New York Times’s conduct was under review by his department.

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Is it possible that the New York Times could still be indicted for revealing the existence of the NSA’s Terrorist Surveillance Program in a December 2005 front-page story?

Shortly after the revelation appeared, a federal grand jury was empaneled to investigate the leak. A range of government officials, including Jane Harmon, then the ranking Democrat of the House Intelligence Committee, pointed to the severe damage that the Times story did to our efforts to intercept al-Qaeda communications and thwart a second September 11. Shortly thereafter, President Bush called the newspaper’s conduct “shameful.”

I agreed with these assessments. In fact, I argued in March 2006 that the New York Times had also broken the black-letter law. It had breached the provisions of Section 798 of Title 18, which make it a crime to publish classified information concerning the interception of communications intelligence. Shortly thereafter, Attorney General Alberto Gonzalez hinted that, in light of several statutes on the books, the New York Times’s conduct was under review by his department.

How did the Bush administration follow up? Faced with the politically explosive challenge of indicting our country’s leading newspaper, it did nothing at all. It was rewarded for its forbearance by another New York Times sensation, a front-page story in May 2006 revealing the details of a second highly classified counterterrorism program that worked through the European banking consortium SWIFT.

When the European central bank closed the program some months later, the New York Times ran a short item taking note, which it buried on the bottom of an inside page.

Now, over this past weekend, nearly two years after the initial NSA leak, Congress finally acted to codify the intelligence program that the New York Times compromised. But as coincidence would have it, the federal grand jury hearing evidence in the leak investigation is still active, and at the very same moment that Congress was tidying up the law, there was dramatic action.

Newsweek’s Michael Isikoff broke the story on Sunday, reporting that

a team of FBI agents, armed with a classified search warrant, raided the suburban Washington home of a former Justice Department lawyer. The lawyer, Thomas M. Tamm, previously worked in Justice’s Office of Intelligence Policy and Review (OIPR)—the supersecret unit that oversees surveillance of terrorist and espionage targets. The agents seized Tamm’s desktop computer, two of his children’s laptops, and a cache of personal files. Tamm and his lawyer, Paul Kemp, declined any comment. So did the FBI. But two legal sources who asked not to be identified talking about an ongoing case told Newsweek the raid was related to a Justice criminal probe into who leaked details of the warrantless eavesdropping program to the news media.

With the investigation making progress, the possibility remains that even if the New York Times is not indicted, its reporters—James Risen and Eric Lichtblau—might be called before the grand jury and asked to confirm under oath that Tamm, or some other suspect, was their source. That is what happened to a whole battalion of journalists in the investigation of Scooter Libby in the Valerie Plame fiasco.

If Risen and Lichtblau promised their source confidentiality, they might choose not to testify. That would potentially place them, like Judith Miller in the Libby investigation, in contempt of court and even land them in prison.

Back when the NSA leak first occurred, I rated the probability of an indictment of the Times at somewhere between 0 and 1 percent. Today, with the Bush administration in disarray, and Alberto Gonzalez powerless, the probabilities have plummeted to .000001 percent. But a contempt citation is another kettle of fish. With the Judith Miller precedent both fresh and firmly fixed in law, the NSA-leak case might suddenly become very interesting.

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A Nation of Secrets?

Are we becoming A Nation of Secrets? That is the title of a new book by Ted Gup, a former investigative reporter at Time magazine and the Washington Post and now a journalism professor at Case Western Reserve University. In it, he argues that a wave of secrecy is washing over our country that “threatens to engulf democratic institutions and irrevocably alter the landscape of America.” Dan Seligman took a dim view of this contention in his review of the book in the June issue of COMMENTARY, and I offer my own dim view of it in a review in today’s Wall Street Journal.

As I try to show in the Journal, Gup is engaged in fear-mongering about government secrecy. But even if his book is flawed in this way, Gup does have interesting things to say about secrecy in other spheres of American life, especially the media.

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Are we becoming A Nation of Secrets? That is the title of a new book by Ted Gup, a former investigative reporter at Time magazine and the Washington Post and now a journalism professor at Case Western Reserve University. In it, he argues that a wave of secrecy is washing over our country that “threatens to engulf democratic institutions and irrevocably alter the landscape of America.” Dan Seligman took a dim view of this contention in his review of the book in the June issue of COMMENTARY, and I offer my own dim view of it in a review in today’s Wall Street Journal.

As I try to show in the Journal, Gup is engaged in fear-mongering about government secrecy. But even if his book is flawed in this way, Gup does have interesting things to say about secrecy in other spheres of American life, especially the media.

“It is one of the crueler ironies of the post-9/11 era,” Gup writes, “that the press, whose raison d’etre is to hold government accountable and promote transparency, should itself have become a casualty of secrecy, its methods and manners eerily mimicking those its monitors.”

In demonstrating this proposition, Gup explores a number of recent media controversies, including the New York Times’s December 2005 decision to reveal the highly classified National Security Agency’s Terrorist Surveillance Program, thus tipping off al Qaeda to one of our most critical counterterrorism efforts. He goes into considerable depth into the “secret” editorial decision-making leading up to publication. He is particularly hard on the paper for concealing the various conflicts of interest it had with its own reporters, especially James Risen, one of two reporters who broke the NSA story. He also points to many of the credibility problems that arise from the press’s excessive use of anonymous sources.

I found myself disagreeing with almost all of Gup’s broad conclusions, and was especially put off by the overheated rhetoric with which they are presented, but Nation of Secrets does contain valuable observations about the workings of the press, and a good deal of reporting about other facets of secrecy in American life, that make it still worth reading.

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The Ten Commandments of the New York Times

The New York Times has “a comprehensive set of ethical guidelines, but if they were reduced to Ten Commandments, the first two would certainly be Don’t Lie and Don’t Do Anything Illegal”—or so says Matthew Purdy, the “investigations editor” at the newspaper. Purdy is responsible for leading the reporters and other editors who, among other things, try to unearth highly classified U.S. government secrets, often with great success.

“[W]e go to great lengths to follow the law while reporting aggressively,” says Purdy, and he cites an example:

Evidence that emerged during a terrorism trial in London that ended recently showed the authorities there had surveillance on two of the July 7, 2005, transit bombers at least a year before those deadly attacks, but had not followed up on those suspects. This was urgent information, but a British court order prohibited publication until the trial was over. We, like our brethren in the British press, held the story for months until the verdicts were in.

But, of course, Purdy is here talking about British law, which his newspaper does seem to scrupulously observe—even going so far as to block British readers from reading certain stories on its website. (The Times‘s own story about this extraordinary practice, “Times Withholds Web Article in Britain,” can be viewed here, though the link may require registration.)

But what about U.S. law?

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The New York Times has “a comprehensive set of ethical guidelines, but if they were reduced to Ten Commandments, the first two would certainly be Don’t Lie and Don’t Do Anything Illegal”—or so says Matthew Purdy, the “investigations editor” at the newspaper. Purdy is responsible for leading the reporters and other editors who, among other things, try to unearth highly classified U.S. government secrets, often with great success.

“[W]e go to great lengths to follow the law while reporting aggressively,” says Purdy, and he cites an example:

Evidence that emerged during a terrorism trial in London that ended recently showed the authorities there had surveillance on two of the July 7, 2005, transit bombers at least a year before those deadly attacks, but had not followed up on those suspects. This was urgent information, but a British court order prohibited publication until the trial was over. We, like our brethren in the British press, held the story for months until the verdicts were in.

But, of course, Purdy is here talking about British law, which his newspaper does seem to scrupulously observe—even going so far as to block British readers from reading certain stories on its website. (The Times‘s own story about this extraordinary practice, “Times Withholds Web Article in Britain,” can be viewed here, though the link may require registration.)

But what about U.S. law?

As Purdy surely knows, among other things, the United States has a statute on the books—Section 798 of Title 18—that makes it a crime to publish classified information pertaining to communications intelligence. The Times has flagrantly violated this provision, as when it published James Risen and Eric Lichtblau’s December 16, 2005 article disclosing a top-secret National Security Agency program to intercept al-Qaeda communications, a story that numerous government officials, including Jane Harman, then the ranking Democrat on the House intelligence committee, say caused serious harm to American counterterrorism efforts.

The Times‘s position seems to be that Section 798 is unconstitutional, although none of its reporters, editors, or lawyers has ever come out and actually said so. A debate can certainly be had about the constitutional status of Section 798. But as I point out in a sharp exchange with another Times editor in the current issue of the New Republic (which continued here for another half-round), it is up to Congress to pass laws and the courts then determine whether they are unconstitutional. Journalists, even powerful ones like the editors of the Times, are not free to pick and choose the statutes they wish to observe and then claim immunity from prosecution for violating the others.

Yes, the Times does go to “great lengths,” as Matthew Purdy says, to observe the law—British law, that is. Its adherence to American law is a different story. If nothing else, our newspaper of record has thus found a very imaginative way to observe its own Ten Commandments.

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Bush the “Madman”

Back in April 2004, Tony Blair and George Bush had a chat about the war in Iraq. In the course of it, Bush reportedly suggested bombing the Arab broadcasting station Al Jazeera, headquartered in Doha, Qatar. The White House has adamantly denied that such a proposal was ever made, calling the accusation “outlandish and inconceivable.”

But a British diplomatic communication about their conversation, marked “Secret-Personal,” evidently says otherwise—the subject may indeed have been broached, but possibly only in jest. Addressed to the British Foreign Secretary, the document began: “This letter is extremely sensitive. It must not be copied further and must be seen only by those with a need to know.”

We know about this document because a British cryptographer by the name of David Keogh, responsible for handling British diplomatic cable traffic, passed it on to an anti-war member of parliament who then disclosed its contents to the press. His objective, Keogh has frankly explained, was to intervene in America’s elections, helping John Kerry’s presidential bid by making George W. Bush appear to be a “madman.”

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Back in April 2004, Tony Blair and George Bush had a chat about the war in Iraq. In the course of it, Bush reportedly suggested bombing the Arab broadcasting station Al Jazeera, headquartered in Doha, Qatar. The White House has adamantly denied that such a proposal was ever made, calling the accusation “outlandish and inconceivable.”

But a British diplomatic communication about their conversation, marked “Secret-Personal,” evidently says otherwise—the subject may indeed have been broached, but possibly only in jest. Addressed to the British Foreign Secretary, the document began: “This letter is extremely sensitive. It must not be copied further and must be seen only by those with a need to know.”

We know about this document because a British cryptographer by the name of David Keogh, responsible for handling British diplomatic cable traffic, passed it on to an anti-war member of parliament who then disclosed its contents to the press. His objective, Keogh has frankly explained, was to intervene in America’s elections, helping John Kerry’s presidential bid by making George W. Bush appear to be a “madman.”

Such behavior is profoundly undemocratic. A civil servant in a technical position took upon himself a responsibility reserved for elected officials: namely, running British foreign policy.

Here in the United States such conduct would be called a “leak,” and the leaker would be celebrated in some quarters as a “whistleblower.” His actions would be lauded by the press, which would in turn circle the wagons to keep the whistleblower from being apprehended. Pulitzer prizes might even be won (as they were by the New York Times reporters James Risen and Eric Licthblau in the NSA terrorist surveillance case) for transmitting information from the leaker to the public about the hidden workings of government.

But T.S. Ellis, III, the federal judge who presided over the trial of the Pentagon official Lawrence Franklin for passing classified information to two employees of AIPAC, has a different view—and it is the correct one.

One can have all sorts of legitimate reservations about the Franklin and AIPAC prosecutions, and how they came about, and their highly selective nature—I have expressed my own doubts about them here and in the Los Angeles Times, and Dorothy Rabinowitz has persuasively done so in the Wall Street Journal. Nonetheless, in sentencing Franklin to more than twelve years in prison, Ellis had one very compelling point:

What this case is truly significant for is the rule of law. The law says what it says. The merits of the law really are committed to Congress. If it’s not sensible, it ought to be changed. But they’re—that’s the body that changes it. . . .

There is a law that says that if you have authorized possession of national defense information, you can’t disclose it to unauthorized people. . . .

It doesn’t matter that you think that you were really helping. That’s arrogating to yourself the decision of whether to adhere to a statute passed by Congress or not. And we can’t do that in this country. . . .

And it doesn’t matter who you disclosed it to. It doesn’t matter whether you disclose it to a newspaper. It doesn’t matter whether you disclose it to people who are fierce American patriots, or anything else. It doesn’t matter. It can’t be disclosed. That’s the rule of law.

The British courts agree. Calling David Keogh’s actions “reckless and irresponsible,” a judge on Wednesday sentenced him to six months in jail for breaching the Official Secrets Act.

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