The Espionage Act and the "New York Times"

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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.

Steven Aftergood

Federation of American Scientists

Washington, D.C.

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.