If you’re looking for a shorter, more readable argument in favor of prosecuting the reporters and editors of the New York Times and Los Angeles Times for revealing classified details of an effective anti-terror program, read this. It is a Weekly Standard piece by Gabriel Schoenfeld, whose lengthy Commentary article on the same subject was featured in this post of mine from earlier today. Here are highlights of today’s Schoenfeld piece. First, he quotes the relevant statute:
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 . . . concerning the communication intelligence activities of the United States . . . shall be fined not more than $10,000 or imprisoned not more than ten years, or both [emphasis added].
Sounds on point. Schoenfeld argues that it is clearly applicable to the NSA stories, but arguably not to the banking story. I think it applies to both.
Here is Schoenfeld’s conclusion:
Given the uproar a prosecution of the Times would provoke, the attorney general’s cautious approach is certainly understandable. But what might look like a prudent exercise of prosecutorial discretion will, in the face of the Times‘s increasingly reckless behavior, send a terrible message. The Comint statute, like numerous other laws on the books limiting speech in such disparate realms as libel, privacy, and commercial activity, is fully compatible with the First Amendment. It was passed to deal with circumstances that are both dangerous and rare; the destruction of the World Trade Center and the continuing efforts by terrorists to strike again have thrust just such circumstances upon us.
If the Justice Department chooses not to prosecute the Times, its inaction will turn this statute into a dead letter. At stake here for Attorney General Gonzales to contemplate is not just the right to defend ourselves from another Pearl Harbor. Can it really be the government’s position that, in the middle of a war in which we have been attacked on our own soil, the power to classify or declassify vital secrets should be taken away from elected officials acting in accord with laws set by Congress and bestowed on a private institution accountable to no one?
This sounds remarkably like what I argued earlier today.
I would alter this article in one way: by making clear that the prosecution is not of the newspapers, but of the human beings who made the conscious choice to publish classified information about anti-terror programs. Let’s not dehumanize this. People made these choices, and people should pay.
UPDATE: Also read Andy McCarthy.
UPDATE x2: Just to make it clear as to why I think 18 U.S.C. section 798 covers this:
The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients . . .
Doesn’t that sound like the program of intercepting communications used in international wire transfers routed through Swift? It sure does to me.
Again, I am throwing a fit over this story where I didn’t throw a fit over the NSA story, because this program actually sounds like it had tangible successes in the war on terror. I read the NSA stories in vain for proof of similar success stories resulting from data-mining of international phone calls, and I remember nothing. If I missed something, please tell me.