Time for Gonzales to Act

Clarice Feldman in American Thinker writes:

"In March, Gabriel Schoenfeld wrote a brilliant piece in Commentary in which he argued that the New York Times revelations about the NSA program warranted prosecution under Section 798 of Title 18, the so-called Comint statute. In the article he details the history and language of the Act and its 1950 amendment and argues that the language is unambiguous and certainly covers the paper’s disclosures of the NSA program, which substantially harmed our counter terrorism activities."

Check the article out, good background and link on Section 798, which IS the prevailing chapter being used to investigate the leaks. The Ny Times has possibly drawn too far a line in the sand and the DOJ is all too prepared to step across it.

Yet, as Powerline Blog's Scott Johnson in the Weekly Standard had previously outlined, there are other prevailing Sections to consider, and as in the case of the Times, Bill Keller might have just stepped in it.

" Section 793 of the federal espionage law prohibits authorized persons possessing "information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation . . . " from disclosing it to persons not entitled to it. Section 798 of the espionage law prohibits the disclosure of classified communications intelligence activities to unauthorized persons "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 . . . " The violation of these statutes is a felony. Because their disclosures to the Times may fall within these statues, the "current and former government officials" referred to in the Risen/Lichtblau story sought the promise of confidentiality from the Times to protect their identity.

Assuming that these statutes apply to the leaks involved in the NSA story, has the Times itself violated the statutes and committed a crime? The answer is clearly affirmative. Section 798, for example, makes knowing and willful "publication" of the proscribed information a crime. Moreover, under the basic federal aiding and abetting statute--18 U.S.C. S 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; otherwise known as 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 or dissenting from the order allowing the Times to continue publication of its Pentagon Papers stories, however, a majority of the justices contemplated that the Times could be held responsible for any violation of the law involved in publishing the stories.

Indeed, in their concurring opinions, Justices Douglas and White cited and discussed Section 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 [against the Times and the Washington Post.] 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.

In a Boston Phoenix article, "The Gray Lady in shadow," civil liberties lawyer Harvey 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, Blackmun, Burger, and Harlan) would have approved of criminal prosecution of the newspaper defendants 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. It is fair to conclude that the Times is not immune from criminal liability for violation of the federal espionage laws under the Pentagon Papers case.

WHILE THE PENTAGON PAPERS CASE is still good law, 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 the espionage laws? The Court's fundamental factual predicates in Bartnicki were that the media defendants played no part in the underlying illegal conduct and that 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 not entitled or authorized to receive information provided to it regarding the NSA surveillance program that makes disclosures to the Times illegal under sections 793 and 798.

Because Bartnicki is readily distinguishable from the facts involved in the Times's disclosure of the NSA surveillance program, it appears that the Times is not constitutionally immune from criminal responsibility for its conduct."


In this particular case it is not known how Risen/Lichtblau gained access to the information in the banking story, but if they followed their "pattern" it is evidence that they obtained it illegally. In short, Keller, Risen/Lichtblau may be hauled in after all as in spite of their assertions there is NO protection for any journalist to seek and obtain classified information and then allow an editor to print it.

Keller's bias is evident, and thus show his decision to publish isn't in the interest of the "public's right to know", but of his obsession with Bush "that administration". This time, and perhaps his final time, he crossed the line.

Note: *Credit: The People's Cube)

UPDATE: In case you're wondering about this, yep, the story is bogus, and they fell for it. Not that troop reductions is a big secret anyway as shown here.

But this "leak" was designed to put "icing" on a freshly baked cake. If I were Gordon, I'd run now.

UPDATE: Rep. Pete King (NY) on Fox News talking about the need for an inquiry and an investigation. I would like to remind everyone that this probe, is still ongoing and getting more and more traction everyday. Look for more congressional calls for Keller's head in the days to come. A possible "invite" via subpoena to Capital Hill would most likely be in order now.





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