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.

Shoenfeld goes on to say that even in cases where the wording of the Act is fairly clear, courts have been hesitant to say that it was the will of Congress to suppress information, always erring on the side of national security. But, and this may be his highest card, in 1950 Congress added an amendment to the Espionage Act "dealing specifically with “communications intelligence”—exactly the area reported on by the Times and James Risen."

The key provision: "Whoever knowingly and willfully ... [snip] .... publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information ... concerning the communication intelligence activities of the United States or any foreign government" commits an offence.

Shoenfeld spends some time on the question of whether the information the NY Times revealed "was improperly classified as secret," whether the activities ordered by the President were illegal, and whether there is a proper method for whistle blowers to follow if they wish action to be taken.

Finally, there is the question whether the disclosures by the Times did any actual harm:

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.

[blockquote]Even after September 11, according to Risen and Eric Lichtblau in their December story, terrorists continued to blab on open lines. Thus, they wrote, NSA eavesdropping helped uncover a 2003 plot by Iyman Faris, a terrorist operative, who was apprehended and sentenced to 20 years in prison for providing material support and resources to al Qaeda and conspiring to supply it with information about possible U.S. targets. Another plot to blow up British pubs and subways stations using fertilizer bombs was also exposed in 2004, “in part through the [NSA] program.” This is the same James Risen who blithely assures us that terrorists are too smart to talk on the telephone.[/blockquote]

So NSA happened to come across some useful evidence by monitoring phone calls. Would any of this monitoring have been covered by FISA, or subject to search warrants? Should it be? Should there have been more Congressional oversight? Shoenfeld says nothing of all this. Shoenfeld mentions the famous example of Osama's satellite phone, without mentioning the controversy about the role played by the Washington Times in revealing Osama's use of the phone to the general public. No mention, either, of the fact that Bush may have revealed more technical details of U.S. secret security operations than anyone else in recent years.

In this context, what chance would there be of convicting the Times? Would it be even a sane prosecution? As Shoenfeld quotes the experts on the Espionage Act and related pieces of legislation:

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.

But it goes on all the time. All of a sudden, out of the blue, Shoenfeld would prosecute the NY Times because it (arguably) has made Bush look bad?

Return to Main Page


Add Comment

Search This Site

Syndicate this blog site

Powered by BlogEasy

Free Blog Hosting