January 24, 2006
Larry Franklin and the New York Times NSA leaksBy Richard Baehr
Pinch Sulzberger, meet Larry Franklin. The publisher of the New York Times had better pay attention to the fate of Mr. Franklin.
Last Friday, US District Judge T. S. Ellis III sentenced Pentagon employee Larry Franklin to just over 12 years in prison for his role in providing classified Department of Defense documents to two former employees of AIPAC (The American Israel Public Affairs Committee), Steve Rosen and Keith Weissman, and to a diplomat, Naor Gilon of Israel.
Virtually all the coverage of the sentencing focused on the implications for Rosen and Weissman in their upcoming trial. But the real story of the sentencing, and the Judge's comments on Friday, are what they might reveal about the risk to media leakers and publishers of classified information, such as those who provided information for the NSA surveillance story published by the New York Times.
Franklin's sentence was on the low end of federal sentencing guidelines, and followed a guilty plea he made to three felony counts last October. Franklin's sentence will likely be reduced in exchange for his cooperation in the upcoming trials of the two former AIPAC employees. Franklin has been cooperating for several years with the Justice Department, including serving as a courier in a federal sting directed against Weissman and Rosen.
As reported in the Washington Post,
Attorneys for Rosen and Weissman have argued that Rosen and Weisman did nothing more than what lobbyists involved in foreign affairs do all the time: exchange information and rumors with reporters, US government officials, and foreign government officials.
Clearly, if Rosen and Weissman are found guilty, it will have a decidedly 'chilling effect' on the activities of all kinds of lobbying groups in Washington DC.
The same language about 'chilling effects' has been used in recent weeks in discussion of the Justice Department's investigation into who leaked the story to the New York Times about the NSA's surveillance of phone calls between al Qaeda operatives and suspects abroad and their phone contacts in the US. Aside from any controversy about the legality of the surveillance itself, the media is concerned that the Justice Department investigators will demand to know who contacted the Times reporter James Risen and leaked the story to him.
Champions of the theory that Bush did something illegal by ordering the surveillance, tend to also be champions of the need to 'protect the whistleblower.' If you believe that the Administration overstepped, then you seem to also wind up in the camp that believes that leaking by the whistleblower and dissemination of the story by the New York Times, was a public service in each case, and certainly not a crime. The issue of whether journalists should have to give up sources was also recently a focus in the Valerie Plane/Joe Wilson story.
Judge Ellis stated in the Franklin sentencing that he believed that Franklin thought he was helping America by providing the documents and information to the people that he did. Ellis also stated that he did not believe that any damage caused by Franklin's actions compared to the damage caused by classified information provided to the Soviets during the Cold War.
As reported by the Associated Press, Ellis also stated during sentencing,
Federal prosecutor Kevin DiGregory had urged the Judge to hand down a tough sentence since Franklin had knowingly disclosed classified information to unauthorized people.
It seems that the Judge's comments and the Prosecutor's statement have some bearing on the NSA matter.
If a government employee believes that illegal government behavior is taking place, there is a formal whistleblower mechanism for that employee to report the problem. It does not appear that this happened with the NSA issue. The leaker(s) decided to go to the newspaper with the story, instead.
It is hard to see how the prosecutor's position with regard to Larry Franklin — that disclosing unauthorized information means the US government loses control of it — would not apply in the NSA case. Arguably, the revelation in the New York Times of the NSA program was at least as much of a loss for the government as would be the disclosure of individual names of those whose calls were monitored.
But what should be really scary for the New York Times and its shills in the "free to leak" press brigade are the judge's comments on the culpability of the individual who receives classified information.
Judge Ellis thinks those who receive such classified information and then disseminate it are as guilty as those who provide the classified information to them.
I am unaware of any special legal privilege given to the press, in terms of disseminating classified information, that does not exist equally for any other citizen or private party. If the logic that Judge Ellis used in the Franklin case were applied to the NSA case, then the New York Times will be in a lot more serious legal situation than merely choosing whether or not to protect its source's confidentiality by hiding the original government leaker's identity.
In fact, even without knowing who provided the information to the paper and its reporters, it is obvious that the Times disseminated it, fully knowing the material was classified. The dissemination was against the express wishes of the President who believed that exposing the program would damage the country's efforts in fighting al Qaeda. And the Times has a large megaphone — over a million print subscribers, and many more online, and its story was quickly picked up by virtually all the other news media.
Steve Rosen and Keith Weissman are in legal jeopardy for, among other things, passing on a bogus story that was supplied to them by Franklin in his role as agent for the Justice Department. No one has argued that anything they disclosed, whether provided by Franklin or others, to Israeli officials or to reporters, caused any real damage to this country. Similarly, the long investigation into the Valerie Plame "outing" in the end did not result in anybody being accused of disclosing the identity of a covert agent. Lewis Libby is charged with telling a different story to the grand jury than did a few reporters about their conversations concerning Plame and Wilson.
The NSA disclosure is a far more serious affair than the Franklin/Rosen/Weissman story, or the Plame/Wilson story, that kept the chattering crowd in DC on their toes for more than a year. If one follows the logic of Judge Ellis, it is hard to see how James Risen, Bill Keller, and possibly Pinch Sulzberger will not be asked to take a perp walk, mabye even in leg irons, some day soon.
The two former AIPAC employees are facing jail time for talking to reporters, revealing classified information, and for revealing secrets to a friendly country. In the NSA/New York Times case, one of the recipients of the information the New York Times disseminated is al Qaeda, which now knows of the surveillance effort and is better able to evade detection of its communications. Providing relevant secrets that aid an enemy in time of war is no laughing matter, and a legal precedent exists for prison sentences of non—trivial duration for those who are found guilty.
Richard Baehr is the chief political correspondent of The American Thinker.