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Is the New York Times the Next NSA Leak Target?

Perrspectives | August 7, 2007

Just one day after learning the FBI raided the home of former DOJ attorney Thomas M. Tamm in connection with the December 2005 leak of President Bush's illicit NSA domestic surveillance program , conservatives are beginning to clamor for action against another target: The New York Times.

Writing in Commentary, editor Gabriel Schoenfeld is renewing his call for the indictment of the New York Times for its December 16, 2005 publication of the NSA story. Perhaps sensing a momentum shift with the Tamm raid and the Democrats' capitulation on the draconian new FISA law, Schoenfeld reasserted his 2006 claim that the New York Times violated federal criminal statutes, if not the Espionage Act of 1917.

While Schoenfeld sees the odds of the weakened duo of President Bush and Alberto Gonzales pursuing a Time indictment as ".000001 percent," he advocates that the article's authors James Risen and Eric Lichtblau get the Judith Miller treatment:

"With the investigation making progress, the possibility remains that even if the New York Times is not indicted, its reporters - James Risen and Eric Lichtblau - might be called before the grand jury and asked to confirm under oath that Tamm, or some other suspect, was their source. That is what happened to a whole battalion of journalists in the investigation of Scooter Libby in the Valerie Plame fiasco.

If Risen and Lichtblau promised their source confidentiality, they might choose not to testify. That would potentially place them, like Judith Miller in the Libby investigation, in contempt of court and even land them in prison."

Schoenfeld is nothing if not consistent. He has been leading the President's amen corner in the charge against the New York Times ever since Attorney General announced the DOJ's leak probe on December 30, 2005. On June 6, 2006, Schoenfeld appeared before the Senate Judiciary Committee to make his case. One month later on July 3, he laid out his case in the Weekly Standard, approvingly cited Gonzales' veiled threats towards the New York Times:

"There are some statutes on the books, which, if you read the language carefully, would seem to indicate that that is a possibility."

Schoenfeld and his allies wholeheartedly agree. They dispute the assertions that the 1917 Espionage Act applies only to government officials, and not journalists. More importantly, they claim a 1950's era statute (Section 798 of Title 18, the so-called Comint statute) is the perfect cudgel for bludgeoning the Times:

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.

Judging from the reaction of the Judiciary Committee in June 2006 at least, Senators of both parties have little enthusiasm for prosecuting the New York Times. During hearings investigating the NSA leak, the Espionage Act and the potential need for a reporters' shield law, Matthew W. Friedrich , then the principal deputy attorney general of the Justice Department's criminal division, refused to say whether or not Bush administration has ever considered prosecuting journalists for publishing leaked national security information. Then chairman Senator Arlen Specter (R-PA) told Friedrich, "I'm not interested in history this morning. I'm interested in current events." And Iowa Republican Chuck Grassley added, "I would think that the department would send somebody here to testify that could answer our questions if they [had] any respect for this committee whatsoever."

Perhaps more important, the NSA leaker himself (or herself) may enjoy protections under the Whistleblower Act. While the Act does not cover FBI, CIA or NSA personnel, a career DOJ official like Thomas Tamm would find himself within its umbrella. The Act's protections extend to both unclassified portions of a classified program or even classified information that has already become public. As Tom Devine of the Government Accountability Project told Fox News in 2005, "The government has no legal right to pursue the whistleblower [or] whistleblowers who disclosed what's been publicly aired to date."

Whether or not the New York Times is the next target on the Bush White House's crusade against its political foes remain to be seen. But if the pages of its echo chamber are any indication, there is reason for real concern. Over at the National Review, Michael Barone writes that "perceptions are beginning to shift" in a piece titled "Defeating Defeatism." Over at the Standard, Bill Kristol similarly crows that "the defeatists are in retreat."

Of course, they are talking about Iraq. Even in the wake of the Democrats' utter surrender on FISA, the National Review wants a much more aggressive campaign of domestic surveillance. It may only be a matter of time till that reinvigorated Orwellian spasm is directed back at the New York Times.

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