Is the New York Times Liable for Prosecution under the Espionage Act?

Posted: February 12, 2006 in Media

Certainly, the New York Times considers itself to be culpable:

At the same time, conservatives have attacked the disclosure of classified information as an illegal act, demanding a vigorous investigative effort to find and prosecute whoever disclosed classified information. An upcoming article in Commentary magazine suggests that the newspaper may be prosecuted for violations of the Espionage Act and says, “What The New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism.”  

Democratic Congresswoman Jane Harmon thinks so:

In a stunning break with her party, the ranking Democrat on the House Intelligence Committee said Sunday that the New York Times should be prosecuted for damaging national security by revealing the National Security Agency’s top secret terrorist surveillance program authorized by President Bush.

“If the press was part of the process of delivering classified information, there have to be some limits on press immunity,” Rep. Jane Harman told NBC’s “Meet the Press.”

Moderator Tim Russert then pressed: “But if [the NSA leak] came from a whistleblower, should the New York Times reporter be prosecuted?”

Harman countered: “Well, it’s not clear it was a whistleblower. You have to prove that first.”

Gabirel Shoenfeld writes, in the Commentary Magazine:

  To begin with, there can be little argument over whether, in the case of the Times, national-defense material was disclosed in an unauthorized way. The Times’s own reporting makes this plain; the original December 16 article explicitly discusses the highly secret nature of the material, as well as the Times’s own hesitations in publishing it. A year before the story actually made its way into print, the paper (by its own account) told the White House what it had uncovered, was warned about the sensitivity of the material, and was asked not to publish it. According to Bill Keller, the Times’s executive editor, the administration “argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country’s security.” Whether because of this warning or for other reasons, the Times withheld publication of the story for a year.

The real question is therefore not whether secrets were revealed but whether, under the espionage statutes, the elements of a criminal act were in place. This is a murkier matter than one might expect.

Thus, one subsection of the Espionage Act requires that the country be in a state of war, and one might argue that this requirement was not present. Although President Bush and other leading officials speak of a “war on terrorism,” there has been no formal declaration of war by Congress. Similarly, other subsections demand evidence of a clear intent to injure the United States. Whatever the motives of the editors and reporters of the New York Times, it would be difficult to prove that among them was the prospect of causing such injury.

True, several sections of the Act rest on neither a state of war nor on intent to injure, instead specifying a lower threshold: to be found guilty, one must have acted “willfully.” Yet this key term is itself ambiguous—“one of the law’s chameleons,” as it has been called. Does it mean merely acting with awareness? Or does it signify a measure of criminal purposiveness? In light of these and other areas of vagueness in the statutes, it is hardly surprising that, over the decades, successful prosecution of the recipients and purveyors of leaked secret government information has been as rare as leaks of such information have been abundant.

But that does not end the matter. Writing in 1973, in the aftermath of the Pentagon Papers muddle, two liberal-minded law professors, Harold Edgar and Benno C. Schmidt, Jr., undertook an extensive study of the espionage statutes with the aim of determining the precise degree to which “constitutional principles limit official power to prevent or punish public disclosure of national-defense secrets.” Their goal proved elusive. The First Amendment, Edgar and Schmidt found, despite providing “restraints against grossly sweeping prohibitions” on the press, did not deprive Congress of the power to pass qualifying legislation “reconciling the conflict between basic values of speech and security.” Indeed, the Espionage Act of 1917 was just such a piece of law-making, and Edgar and Schmidt devote many pages to reviewing the discussion that led up to its passage.

What they show is a kind of schizophrenia. On the one hand, a “series of legislative debates, amendments, and conferences” preceding the Act’s passage can “fairly be read as excluding criminal sanctions for well-meaning publication of information no matter what damage to the national security might ensue and regardless of whether the publisher knew its publication would be damaging” (emphasis added). On the other hand, whatever the “apparent thrust” of this legislative history, the statutes themselves retain plain meanings that cannot be readily explained away. The “language of the statute,” the authors concede, “has to be bent somewhat to exclude publishing national-defense material from its [criminal] reach, and tortured to exclude from criminal sanction preparatory conduct necessarily involved in almost every conceivable publication” of military secrets.

Thus, in the Pentagon Papers case, four members of the Court—Justices White, Stewart, Blackmun, and Chief Justice Burger—suggested that the statutes can impose criminal sanctions on newspapers for retaining or publishing defense secrets. Although finding these pronouncements “most regrettable,” a kind of “loaded gun pointed at newspapers and reporters,” Edgar and Schmidt are nevertheless compelled to admit that, in this case as in many others in modern times, the intent of the espionage statutes is indisputable:




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