Has the New York Times Violated the Espionage Act?

Commentary Magazine ^ | March 2006 | Gabriel Schoenfeld

[Anti-Bubba182]

“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.”........"

[Anti-Bubba182]

A long piece with a lot of background on the history of the Espionage Act and how it applies to the NY Times.

[dinok]

I think the New York Times owner and the editorial staff should be in prison for divulging national defense secrets in the middle of a war.

[edcoil]

Lets hope so. Based on news reports, their publishing the story has hurt the country.

Course, Sandy Burger stole TS documents and only got a slap on the wrist

How bad can hurting your country cost these days?

Not alot according to the government.

[Hardastarboard]

I do know that if promoting socialism was a crime (and it SHOULD be, given its record of destroying wealth, societies, and lives), the NYT would have been banned a long time ago.

[Anti-Bubba182]

I agree, but the article gives an example of how a paper did this and escaped.

"..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.."

The part I bolded shows that their was little, if any, damage in the Tribune case. I don't think you can say that in the case of the Times, but I doubt if anything is done. The NY Times thinks itself bigger than the law and sadly has managed to make that stick. Their is neither the support or will in Washington to do more than complain.

[MarkL]

And when enemies of this country begin quoting dem talking points, you need to seriously think about charging the dems with it as well!

Mark

[jecIIny]

That is a fascinating article. Thanks for posting it. The kind of reply it deserves would be outside the scope of a post on FR so I will have to confine myself to a few very basic points.

1. The Espionage act of 1917 is still on the books. But a mountain of jurisprudence both predating and postdating the Pentagon Papers case in the early 70's has left its constitutional viability very much in doubt. Also Congress has passed other espionage laws since then which would at least on the surface appear to have rendered the 1917 version effectively nullified.

2. In those days, severance (a now common practice) was not done with legislation. This was in an age when the courts very rarely interfered with federal legislation. Consequently if any part of the act were declared constitutionally null it would invalidate the entire act. It is almost inconceivable that the Espionage Act in its entirety could withstand judicial scrutiny.

3. Politically it would be extremely divisive to try and bring the Times up on charges. And I am not even talking about the Democrats. That kind of move would likely split the Republican party and the conservative movement. The simple truth is that a very sizable percentage of American conservatives are political and even social libertarians. They would rebel against any attempt to revive that now moribund law.

4. It is likely that any effort to revive the law would bring out very ugly facts about the way the Wilson (a Democratic) administration abused its powers and became something very close to an authoritarian regime in this country. There would almost certainly be a discussion over the sister legislation of the Espionage Act, the Sedition Act. That could make an ugly situation even worse.

In conclusion, the article is fascinating as an intellectual and hypothetical discussion on the possibility of reviving an arcane law. But as a matter of practical reality, it is not happening. The Espionage Act is a dead letter.

[angelsonmyside]

bump for later read

[Anti-Bubba182]

I think #3 is the dominant point of those you raise, but the act itself might be found Unconsitutional in part as you say in #2.

The administration won't do a lot more than complain in any case.

[rockabyebaby]

Has the New York Times violated the Espionage Act?

Is the Pope Catholic?

[Alberta's Child]

I stand by my earlier prediction that nobody at the NY Times will face any kind of prosecution in this case, and that any grand jury investigation will be nothing more than a lot of hot air and political posturing.

I'm no fan of the NY Times, but it's hard to make the case that the newspaper "divulged national defense secrets" when all they really did was reveal information that had been revealed in open public records -- including at least one media report recently prepared by the U.S. Department of Justice -- on a number of occasions over the years.

[Ernest_at_the_Beach]

Hmmm....very interesting....got any links?

[Ernest_at_the_Beach]

Thread on today's hearing:

CIA Chief Says Wiretap Disclosure Damaging (Democrats nervous)

[Grampa Dave]

Since the Nam mess and post Nam mess, the rats in DC and in the MSM have viewed what we see as treason as being good Americans.

Hopefully, this is the beginning of the end of this bs.

[Anti-Bubba182]

Thanks for the link. I hope they do have a Grand Jury, but I doubt if they do.

[Anti-Bubba182]

Hopefully, this is the beginning of the end of this bs.

Ditto that.

[Ernest_at_the_Beach]

ACLU at it again:

ACLU seeks data on 'spying'

[Bender2]

What in the world did you say in post 1?

Inquiring minds want to know...

[Anti-Bubba182]

Same as in 2, but with better spelling.