The Times and the law

Since the New York Times published the Risen/Lichtblau NSA story on December 16, we have cited the federal law that makes the disclosures on which the story is based a crime. The federal law is 18 U.S.C. § 798, a law that precisely prohibits leaks of the type of classified information disclosed in the story. Subsection (a) of the statute provides:

Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or 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—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes— Shall be fined under this title or imprisoned not more than ten years, or both.

Subsection (b) defines the critical terms of the statute; suffice it to say that I believe they are clearly applicable to the conduct of the "nearly a dozen current and former govenment officials" who spoke to the Times. Their violation of the statute is a felony. Because their disclosures to the Times were illegal, these current and former government officials sought the promise of confidentiality from the Times to protect their identity.

The most obvious distinction between the leaks involved in here and in the Plame case -- with respect to which the Times hysterically demanded the appointment of a special prosecutor to conduct an investigation -- is the serious illegality and compromise of national security involved in these leaks. This is a distinction that the Times itself conceals in doubletalk and doublespeak. Indeed, in asserting the contrary, the Times proceeds on the Orwellian proposition that ignorance is strength.

Assuming that the terms of the statute apply to the leaks involved in the NSA story, has the Times itself violated the statute and committed a crime? The answer is clearly affirmative. The statute makes knowing and willful "publication" of the proscribed information a crime. Moreover, under the basic federal aiding and abetting statute -- 18 U.S.C. § 2 -- in willfully helping the leakers publish their disclosures, the Times is as culpable as they are and punishable as a principal.

Which raises the question: Does the First Amendment afford the Times immunity from criminal liability for its conduct? In New York Times Co. v. United States, 403 U.S. 713 (1971)("the Pentagon Papers case"), the Supreme Court held that it was presumptively unconstitutional for the government to restrain the publication of classified information. In separate opinions concurring with the order allowing the Times to continue publication of its Pentagon Papers stories, however, a majority of the justices clearly contemplated that the Times could be held responsible for any violation of the law involved in publishing the stories. For a scrupulous consideration of the Pentagon Papers case in this context, see Harvey Silverglate's Boston Phoenix article: "The Gray Lady in shadow."

Indeed, in their concurring opinions, Justices Douglas and White cited and discussed 18 U.S.C. § 798 as the prototype of a law that could be enforced against a newspaper following publication of information falling within the ambit of the statute. Justice White noted, for example:

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information. It has not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings.

(Citation and footnotes omitted.) Silverglate counts five Pentagon Papers justices in accord with the basic proposition that, while prior restraint is essentially prohibited, post-publication criminal responsibility is not.

Silverglate observes that five of the nine justices (White, Stewart, Blacmun, Burger and Harlan) would have approved of criminal prosecution of the newspapers in the Pentagon Papers case, even though a majority would not authorize a pre-publication injunction. That observation is clearly correct, but conservative. Justice Marshall's concurring opinion is also consistent with White's analysis:

In these cases we are not faced with a situation where Congress has failed to provide the Executive with broad power to protect the Nation from disclosure of damaging state secrets. Congress has on several occasions given extensive consideration to the problem of protecting the military and strategic secrets of the United States. This consideration has resulted in the enactment of statutes making it a crime to receive, disclose, communicate, withhold, and publish certain documents, photographs, instruments, appliances, and information. The bulk of these statutes is found in chapter 37 of U.S.C., Title 18, entitled Espionage and Censorship. In that chapter, Congress has provided penalties ranging from a $10,000 fine to death for violating the various statutes.

Either the Government has the power under statutory grant to use traditional criminal law to protect the country or, if there is no basis for arguing that Congress has made the activity a crime, it is plain that Congress has specifically refused to grant the authority the Government seeks from this Court.

Accordingly, I think it is fair to conclude that the Times is not immune from criminal liability for violation of section 798 under the Pentagon Papers case. While the Pentagon Papers case is still good law, however, it is not the last word. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that the First Amendment protected the publication of lawfully obtained information that was itself obtained illegally. The Court held that federal law making it a crime to intercept and disseminate telephone conversations cannot constitutionally be applied to the media when they report on matters of public concern.

Does Bartnicki suggest that the Times is constitutionally immune from prosecution under section 798? I think not; the case is readily distinguishable. The Court's fundamental factual predicates in Bartnicki is that the media defendants played no part in the underlying illegal conduct and their access to the information was obtained lawfully. In the case of the NSA leaks, however, the disclosures to the Times were themselves illegal; it is the fact that the Times is an "unauthorized person" under section 798 that makes the disclosures to the Times illegal.

Accordingly, by its terms Bartnicki does not apply to shield the Times from liability for criminal misconduct. Bartnicki, however, does leave the door open to arguments that the public significance of the information it obtained must be weighed against the interests protected by the applicable law. To the extent that the Times relies on legal analysis rather than political calculations in betting that it is immune from prosecution for the NSA stories, it must be betting that the balance would be weighed in its favor.

In its December 18 editorial, the Times set itself up as the supreme arbiter of the national security interests of the United States:

Bush defended the [NSA] program Saturday, saying it was saving lives, hotly insisting that he was working within the Constitution and the law, and denouncing The New York Times for disclosing the program's existence. We don't know if he was right on the first count; this White House has cried wolf so many times on the urgency of national security threats that it has lost all credibility. But we have learned the hard way that Bush's team cannot be trusted to find the boundaries of the law, much less respect them.

Is the New York Times a law unto itself? In gambling that constitutional immunity protects it from criminal liability for its misconduct, the New York Times appears to me to be bluffing. Those of us who are disinclined to remit the defense of the United States to the judgment of the New York Times must urge the Bush administration to call the Times's bluff.

I have read and heard several accounts of the law and it does seam that the Slimes, their reporters and management are in breach of the law. I can just hope that the Bush justice department grows a set of gonads and prosecutes these traitors. The MSM's constant undermining anything the US does or stands for just makes me sick. They need a serious A$$ kicking. Amen.

This is an excellent analysis by Power Line and Scott Johnson. As a lawyer who has been around the block (many times), I agree with his analysis here of the underlying law. He also draws a very important distinction that appears in the Pentagon Papers case.

Though the law does NOT permit the federal government from barring the publication of this information, which would be prior restraint, it specifically does allow the prosecution of the newspaper after publication. By analogy, the law does not bar any individual from going into a bank. It does, however, provide for his prosecution if he robs the bank while he is there. The NY Times has just robbed the bank of American national security, "big time," to borrow a phrase from the Vice President.

Everyone involved should be identified, charged, and jailed if found guilty. And any reporters or editors who claim the right to "protect their sources" and refuse to testify, should be jailed for contempt until the War on Terror is over, however long that takes.

Congressman Billybob

Latest column: "Hyenas, Jackals, and Monsters with Microphones"

Treason never prospers.
What's the reason?
For when it prospers,
none dare call it treason.

As true today as it was then. Evidently, we have neither the will nor the stomach to deal with those who seek to destroy our nation, our domestic enemies. That, more than anything else, will be the downfall of America.

I completely agree. It is well established that the First amendment is NOT absolute. Just like you or I would be criminally culpable for the harm caused by yelling "Fire!" in a crowded theater, so should the media be held criminally culpable for the damage caused to our national security by their publishing of photos of military installations, covert operations and methods, etc.

I would live to see old Pinch do the frog walk with the raincoat over his face.

All well said, my only problem is why does the JD seem to be foot dragging. Subpoenas should have been issued within a couple days of the Times publishing the info. Once the trail gets cold it becomes tainted and will be harder to get basic information. Followup can bring great rewards. Just ask Fitzzzzzzzzz how to do it.

Whoops! Sorry about bringing Fitz into this but look how he got Libby.

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