Yes, I would like to receive periodic updates and information via e-mail from Commentary.

Recipient Addresses:

Separate each address with a comma.

Your E-mail Address: Message:

“Bush Lets U.S. Spy on Callers Without Courts.” Thus ran the headline of a front-page news story whose repercussions have roiled American politics ever since its publication last December 16 in the New York Times. The article, signed by James Risen and Eric Lichtblau, was adapted from Risen's then-forthcoming book, State of War. ¹ In it, the Times reported that shortly after September 11, 2001, President Bush had “authorized the National Security Agency [NSA] to eavesdrop on Americans and others inside the United States . . . without the court-approved warrants ordinarily required for domestic spying.”

Not since Richard Nixon's misuse of the CIA and the IRS in Watergate, perhaps not since Abraham Lincoln suspended the writ of habeas corpus, have civil libertarians so hugely cried alarm at a supposed law-breaking action of government. People for the American Way, the Left-liberal interest group, has called the NSA wiretapping “arguably the most egregious undermining of our civil liberties in a generation.” The American Civil Liberties Union has blasted Bush for “violat[ing] our Constitution and our fundamental freedoms.”

Leading Democratic politicians, denouncing the Bush administration in the most extreme terms, have spoken darkly of a constitutional crisis. Former Vice President Al Gore has accused the Bush White House of “breaking the law repeatedly and insistently” and has called for a special counsel to investigate. Senator Barbara Boxer of California has solicited letters from four legal scholars inquiring whether the NSA program amounts to high crimes and misdemeanors, the constitutional standard for removal from office. John Conyers of Michigan, the ranking Democrat on the House Judiciary Committee, has demanded the creation of a select panel to investigate “those offenses which appear to rise to the level of impeachment.”

The President, for his part, has not only stood firm, insisting on both the legality and the absolute necessity of his actions, but has condemned the disclosure of the NSA surveillance program as a “shameful act.” In doing so, he has implicitly raised a question that the Times and the President's foes have conspicuously sought to ignore—namely, what is, and what should be, the relationship of news-gathering media to government secrets in the life-and-death area of national security. Under the protections provided by the First Amendment of the Constitution, do journalists have the right to publish whatever they can ferret out? Such is certainly today's working assumption, and it underlies today's practice. But is it based on an informed reading of the Constitution and the relevant statutes? If the President is right, does the December 16 story in the Times constitute not just a shameful act, but a crime?

_____________

II

Ever since 9/11, U.S. intelligence and law-enforcement authorities have bent every effort to prevent our being taken once again by surprise. An essential component of that effort, the interception of al-Qaeda electronic communications around the world, has been conducted by the NSA, the government arm responsible for signals intelligence. The particular NSA program now under dispute, which the Times itself has characterized as the U.S. government's “most closely guarded secret,” was set in motion by executive order of the President shortly after the attacks of September 11. Just as the Times has reported, it was designed to track and listen in on a large volume of calls and e-mails without applying for warrants to the Foreign Intelligence Security Act (FISA) courts, whose procedures the administration deemed too cumbersome and slow to be effective in the age of cell phones, calling cards, and other rapidly evolving forms of terrorist telecommunication.

Beyond this, all is controversy. According to the critics, many of whom base themselves on a much-cited study by the officially nonpartisan Congressional Research Service, Congress has never granted the President the authority to bypass the 1978 FISA Act and conduct such surveillance. In doing so, they charge, the Bush administration has flagrantly overstepped the law, being guilty, in the words of the New Republic, of a “bald abuse of executive power.”

Defenders answer in kind. On more than twelve occasions, as the administration itself has pointed out, leaders of Congress from both parties have been given regularly scheduled, classified briefings about the NSA program. In addition, the program has been subject to internal executive-branch review every 45 days, and cannot continue without explicit presidential reauthorization (which as of January had been granted more than 30 times). Calling it a “domestic surveillance program” is, moreover, a misnomer: the communications being swept up are international in nature, confined to those calls or e-mails one terminus of which is abroad and at one terminus of which is believed to be an al-Qaeda operative.

Defenders further maintain that, contrary to the Congressional Research Service, the law itself is on the President's side. ² In addition to the broad wartime powers granted to the executive in the Constitution, Congress, immediately after September 11, empowered the President “to take action to deter and prevent acts of international terrorism against the United States.” It then supplemented this by authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” The NSA surveillance program is said to fall under these specified powers. ³

The debate over the legality of what the President did remains unresolved, and is a matter about which legal minds will no doubt continue to disagree, largely along partisan lines. What about the legality of what the Times did?

_____________

III

Although it has gone almost entirely undiscussed, the issue of leaking vital government secrets in wartime remains of exceptional relevance to this entire controversy, as it does to our very security. There is a rich history here that can help shed light on the present situation.

One of the most pertinent precedents is a newspaper story that appeared in the Chicago Tribune on June 7, 1942, immediately following the American victory in the battle of Midway in World War II. In a front-page article under the headline, “Navy Had Word of Jap Plan to Strike at Sea,” the Tribune disclosed that the strength and disposition of the Japanese fleet had been “well known in American naval circles several days before the battle began.” The paper then presented an exact description of the imperial armada, complete with the names of specific Japanese ships and the larger assemblies of vessels to which they were deployed. All of this information was attributed to “reliable sources in . . . naval intelligence.”

The inescapable conclusion to be drawn from the Tribune article was that the United States had broken Japanese naval codes and was reading the enemy's encrypted communications. Indeed, cracking JN-25, as it was called, had been one of the major Allied triumphs of the Pacific war, laying bare the operational plans of the Japanese Navy almost in real time and bearing fruit not only at Midway—a great turning point of the war—but in immediately previous confrontations, and promising significant advantages in the terrible struggles that still lay ahead. Its exposure, a devastating breach of security, thus threatened to extend the war indefinitely and cost the lives of thousands of American servicemen.

An uproar ensued in those quarters in Washington that were privy to the highly sensitive nature of the leak. The War Department and the Justice Department raised the question of criminal proceedings against the Tribune under the Espionage Act of 1917. By August 1942, prosecutors brought the paper before a federal grand jury. But fearful of alerting the Japanese, and running up against an early version of what would come to be known as graymail, the government balked at providing jurors with yet more highly secret information that would be necessary to demonstrate the damage done.

Thus, in the end, the Tribune managed to escape criminal prosecution. For their part, the Japanese either never got wind of the story circulating in the United States or were so convinced that their naval codes were unbreakable that they dismissed its significance. In any case, they left them unaltered, and their naval communications continued to be read by U.S. and British cryptographers until the end of the war. ⁴

If the government's attempt to employ the provisions of the 1917 Espionage Act in the heat of World War II failed, another effort three decades later was no more successful. This was the move by the Nixon White House to prosecute Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers, which foundered on the rocks of the administration's gross misconduct in investigating the offense. The administration also petitioned the Supreme Court to stop the New York Times from publishing Ellsberg's leaked documents, in order to prevent “grave and irreparable danger” to the public interest; but it did not even mention the Espionage Act in this connection, presumably because that statute does not allow for the kind of injunctive relief it was seeking.

_____________

---

---

---

© 2010 Commentary Inc.