Was Revealing NSA Program Dangerous? A Crime? 

Was Revealing NSA Program Dangerous? A Crime?

Gabriel Shoenfeld weighs in, on the Commentary website. (via The Corner).

Lots of learned commentary about national security/espionage type legislation and court decisions; and freedom of press type decisions.

Shoenfeld makes as much as possible of the truncated prosecution of the Chicago Tribune in 1942, for alleged violations of the Espionage Act of 1917. According to Shoenfeld, there is little doubt the Tribune ran stories that could only have resulted from successfully breaking secret Japanese communications. This means that someone leaking to the Tribune had access to messages that had been deciphered by the U.S.; if the Japanese had studied the stories closely, they could reasonably have concluded the truth that the U.S. was able to decipher any Japanese message. The case was dropped--Shoenfeld says because the prosecution itself would have disclosed state secrets, and the Japanese apparently never clued in. But there have been other successful prosecutions under the Espionage Act--in 1984 and January of this year, with the latter case still playing out for other accused persons.

Should the New York Times be charged under the Espionage Act? There is a somewhat long argument:

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.

In a statement on the paper’s website, Bill Keller asserts complacently that “we satisfied ourselves that we could write about this program . . . in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record.” In his book, James Risen goes even further, ridiculing the notion that the NSA wiretapping “is critical to the global war on terrorism.” Government officials, he writes, “have not explained why any terrorist would be so naïve as to assume that his electronic communication was impossible to intercept.”

But there are numerous examples of terrorists assuming precisely that. Prior to September 11, Osama bin Laden regularly communicated with top aides using satellite telephones whose signals were being soaked up by NSA collection systems. After a critical leak in 1998, these conversations immediately ceased, closing a crucial window into the activities of al Qaeda in the period running up to September 11.

If these statutes mean what they seem to say and are constitutional, public speech in this country since World War II has been rife with criminality. The source who leaks defense information to the press commits an offense; the reporter who holds onto defense material commits an offense; and the retired official who uses defense material in his memoirs commits an offense.