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.
Here are the critical provisions of the Act:
�798. Disclosure of Classified Information.
(a) 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—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
(b) As used in this subsection (a) of this section—
The term "classified information" means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;
Section 798 continues:
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;
The term "unauthorized person" means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.
Schoenfeld argued in March:
'What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism. If information about the NSA program had been quietly conveyed to an al—Qaeda operative on a microdot, or on paper with invisible ink, there can be no doubt that the episode would have been treated by the government as a cut—and—dried case of espionage.
Publishing it for the world to read, the Times has accomplished the same end while at the same time congratulating itself for bravely defending the First Amendment and thereby protecting us—from, presumably, ourselves. The fact that it chose to drop this revelation into print on the very day that renewal of the Patriot Act was being debated in the Senate—the bill's reauthorization beyond a few weeks is still not assured—speaks for itself.
The Justice Department has already initiated a criminal investigation into the leak of the NSA program, focusing on which government employees may have broken the law. But the government is contending with hundreds of national—security leaks, and progress is uncertain at best. The real question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate secret and what is not. Like the Constitution itself, the First Amendment's protections of freedom of the press are not a suicide pact. The laws governing what the Times has done are perfectly clear; will they be enforced?'(Id.)
Since that time, the Washington Post followed suit, revealing a story which exposed what a fired CIA official said was secret overseas prisons. While the substance of that story has not been proven, the fact remains that the paper printed it, as the NYT printed the NSA story, in apparent disregard of National Security.
And since both of these papers were the initial megaphones for Joseph A Wilson's phony tale of his Mission to Niger and mau—maued for the appointment of an independent prosecutor to investigate who they then brayed, incorrectly, had been responsible for the 'outing' of an 'undercover agent' which had grave national security implications, their hypocrisy is writ large.
But still, the Department of Justice diddles, taking no apparent action at all. (In contrast to the hyped Plame case where it acted far more quickly to pursue a matter where the special prosecutor now says he will not claim Plame was covert or that anyone leaked that fact, or that national security was harmed.)
The failure to act has only emboldened the leakers and the press to continue to undercut the war effort. The latest move is the New York Times report on the way the U.S. tracks terrorists' movement of funds from financial institutions. In this case, as in the NSA leak, Congressional members of the intelligence committee, Republican and Democrat, asked them not to print this information disclosure of which was harmful to national security. As in the NSA case, the White House warned the paper not to publish this information.
And again the unelected editors of the paper arrogantly ignored this admonition. The very people arguing often that war might not be the answer, that law enforcement and intelligence are sufficient to protect us, are also doing everything they can to make those tools unavailing.
And this latest leak seems to seriously jeopardize our counter terrorism activities. As a reader wrote to Glenn Reynolds:
[quote]What has not been stressed is that SWIFT is not used for individuals. It is used for processing money transfers, stock transfers and bond transfers from companies, governments, banks, insurance companies and NGO's. What we essentially had on file was the holdings for almost all our clients and the clearance data for these transactions dating back for years. We had to keep all this on file to satisfy all the governmental regulations on taxations, etc.
What the NY Times has essentially done is open up to the terrorists the trails of all their transactions and how the banking procedures of money laundering was done for them by the system. They have essentially stopped dead the ability to track this money and keep it from being put in the hands of our worst enemies. Whether the terrorists might have guessed that their money was being transferred is a moot point. The NY Times had told them that their worst fears have been realized and that they need to find another way to move money around the world. They know it for sure now. Thank you, Bill Keller, and when the nice young man or woman from down the street is killed by one of these terrorists I can thank you for that as well.
If Schoenfeld is wrong, and the Act is insufficient to prosecute these breaches of security by the leakers and the publishers, than the Attorney General should have proposed new legislation. He hasn't. Therefore, I assume Schoenfeld's point is correct: the Act is adequate to proceed.
So, what's keeping the Attorney General from acting to halt this bleeding of critical information to our enemies?
Frankly, if he doesn't act soon, Attorney General Gonzales should be removed and replaced by someone with the will to Act . Failing to Act is simply emboldening further those who apparently think the war on the war on terror is more important than what our elected officials consider critical to the war on terror's success.
Clarice Feldman is an attorney in Washington, DC and a frequent contributor.