The reach of the Espionage Act


Here's a fascinating issue, and one of great importance for the news business: whether the government should prosecute newspapers for printing classified information and government employees for divulging it. Specifically, should the New York Times be prosecuted for its Dec. 16, 2005, story on the NSA surveillance of communications between suspected al Qaeda operatives abroad and people in the United States?

Yes, comes the answer of Gabriel Schoenfeld in the March Commentary. Or at least I think his answer is yes; his concluding sentence is, "The laws governing what the Times has done are perfectly clear; will they be enforced?" The laws are the Espionage Act of 1917, together with a section added by Congress in 1950. And his argument that the conduct of the Times and its sources in government is covered by these statutes is, I think, irrefutable.

But not every prosecutable offense should be prosecuted. In the National Journal, Stuart Taylor makes a case against prosecution. Or at least prosecution of the Times, whose disclosure in his view was not terribly harmful to national security. He thinks the Washington Post did more damage with its story about the CIA holding prisoners in eastern European countries. I think I disagree with Taylor about the Times's December 16 story; I agree with Schoenfeld that disclosure of the NSA surveillance was very likely to have been harmful.

Taylor emphasizes the harm that will come to the news business if prosecutions of disclosure of classified material become routine. Schoenfeld does not seem to disagree entirely. He quotes a 1973 law review article by Harold Edgar and Benno Schmidt Jr. that notes that such disclosures are common:

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 on to defense material commits an offense; and the retired official who uses defense material in his memoirs commits an offense.

Yet such offenses have almost never been prosecuted. Schoenfeld carefully lists the instances when the government has sought to bring prosecutions. During World War II the government contemplated prosecution of the Chicago Tribune for a June 1942 story that strongly suggested that we had broken the Japanese naval codes. Franklin Roosevelt even called for prosecuting the Tribune's publisher, Col. Robert McCormick, for treason, knowing that in wartime it carries the death penalty. Ultimately no case was brought because the government feared further disclosure of our breaking of the Japanese codes—one of our key assets not only in the Pacific Theater but in the European Theater, thanks to the insightful and information-packed cables of the Japanese ambassador in Berlin. Amazingly, the Japanese didn't take the hint and continued using the same codes.

In the 1970s the Nixon administration attempted to prosecute Daniel Ellsberg and Anthony Russo for leaking the Pentagon papers. But the prosecution, as Schoenfeld puts it, "foundered on the rocks of the administration's gross misconduct."

More recently successful Espionage Act prosecutions have been brought, against defense analyst Samuel Morison for leaking government documents to Janes's Fighting Ships in 1984 and against Lawrence Franklin for disclosing classified information to two officials of the America Israel Public Affairs Committee. In January, Franklin was sentenced to 121/2 years in prison; the AIPAC officials are scheduled to go on trial in April.

Should the press be immune to such prosecutions? The Supreme Court in the 1972 case of Branzburg v. Hayes pretty clearly seemed to answer no. The case involved other statutes, but the language could not be clearer: "It would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on . . . the reporter to violate valid criminal laws." That decision was followed in the proceedings brought by the special prosecutor Patrick Fitzgerald about the leak of the name of CIA agent Valerie Plame. Fitzgerald successfully caused New York Times reporter Judith Miller to be imprisoned until she agreed to testify about a news source.

Of course the Times, as Schoenfeld notes with relish and Taylor with something like dread, had insisted that the Plame disclosure was terribly damaging to national security and should be prosecuted with vigor. After all, it threatened to hurt the Bush administration. In contrast, the Times asserts that the NSA surveillance disclosure was not harmful to national security and should not be prosecuted. After all, here it was the disclosure that was intended to hurt the Bush administration. But the courts have not yet decided that the reach of First Amendment protections depends on whether the Bush administration is hurt or not. Instead, they've pointed us pretty clearly in the direction of saying there is no First Amendment exception to the Espionage Act.

Of course, Bush partisans would find it delicious to have the Times prosecuted for violating the Espionage Act after it has taken such flagrantly contradictory stands whose only common thread is the paper's apparent desire to harm this administration. But Taylor has a point, and Schoenfeld in quoting Edgar and Schmidt seems to concede it, when he says that bringing Espionage Act prosecutions will change the way the press operates and deny information to the public which, at least on some occasions, it should arguably have. No one denies that the government classifies far too much material; for documentation of this see Daniel Patrick Moynihan's 1999 book Secrecy: The American Experience. And no one denies that such prosecutions have been very rare. When prosecutions are rare, there is always the danger of selective enforcement, which can amount to something like political persecution. George W. Bush, in his comments on the Times's disclosure, has been careful only to note that the Justice Department is investigating. I suspect that the White House is keeping its hands carefully out of this case and will let career Justice Department lawyers make the decision. But that's no guarantee that some future president will do the same. Remember that Franklin Roosevelt pressed for the prosecution of Colonel McCormick, a definite political enemy and publisher of what was then the largest-circulation broadsheet newspaper in America.

One reason there have been so few Espionage Act prosecutions of newspapers in the past is that governments have been reluctant to bring cases that would require the disclosure of more secrets: That is the argument Roosevelt's Attorney General Francis Biddle used to persuade him not to prosecute the Tribune. But when a newspaper discloses something in the way the Times disclosed the NSA surveillance program, there may not be much more to lose in a prosecution. I'm not sure where I come out on this. Part of me says that a prosecution of the Times and its sources would be fully justified, probably more so than the prosecutions of Morison and Franklin. That part of me also tends to think that the Times, in its contradictory stances on the Plame and NSA disclosures, has been acting out of malicious political motives and in reckless disregard of the real security interests of the United States. So a prosecution would be a fair comeuppance. But part of me is also genuinely queasy about the prospects of prosecutions of the press, queasy about the possibility of selective prosecution if not now then in the future, queasy about giving prosecutors the task of determining which secrets are essential to the national security and which are just the results of casual overclassification, queasy lest the government by overclassification enforced by prosecution should unduly restrict the flow of information to the public.

The answer when there are grave risks on all sides is that everyone should act with caution and restraint. The Times hasn't. It has recklessly brought this peril on itself. But that doesn't mean that the government shouldn't act with caution and restraint. I'm glad the decision isn't mine to make. What's your call?