Weak on leaks

LATELY, THE U.S. government has been leaking like the Titanic after it struck an iceberg. Every day seems to place a new and highly classified government secret exactly where it does not belong: before the public eye. What is the Bush administration doing about this inundation? Alas, precisely the wrong thing. Two contrasting cases tell the story.

In August, two officials of the American-Israel Public Affairs Committee, or AIPAC, will stand trial for “conspiring to improperly transmit information related to the national defense� to members of the American media and to a foreign diplomat. In bringing this action, the Justice Department seems to be signaling a get-tough policy against leaks. But the signal is certain to be misunderstood, for seldom has the department prosecuted a more problematic case.

The AIPAC men, Steven J. Rosen and Keith Weissman, contend (and the government does not dispute) that, in their receiving information over lunch and via telephone from a Pentagon employee named Lawrence Franklin, no classified documents changed hands but some classified information was imparted orally.

The defendants further say they were unaware that the official conveying this information to them was not authorized to do so. Nor were they aware of what exactly was classified and what was unclassified in what the government official told them. They thus did not know, and had no way of knowing, that they were breaking the law when they passed on what they had learned.

At the very least, this seems to be a plausible defense. The two men are charged under Section 793 of the Espionage Act. This law has long been recognized as one of the most sloppily drafted in our nation’s history, and Section 793 is particularly vague. To obtain a conviction under this provision, prosecutors must show, among other things, that the defendants acted “willfully.� Given the problem of applying that term to this particular set of facts, the AIPAC men stand a good chance of acquittal. Indeed, the case should be dismissed outright before it goes to trial.

Contrast the government’s effort to prosecute here with its non-handling of another leak. At a preliminary hearing in the AIPAC case, Abbe Lowell, a lawyer for one of the two defendants, pointed out that James Risen, a reporter for the New York Times, won “the Pulitzer Prize ... for doing what my client has been indicted for.�

In December, Risen was the author, with another New York Times reporter, of a front-page story that disclosed one of our government’s most sensitive secrets in the war on terrorism -- the fact that, in the aftermath of 9/11, the National Security Agency was intercepting calls coming into and out of the U.S. involving suspected terrorists.

President Bush called this disclosure a “shameful act.� But, as Lowell suggested, it also may have been a crime. And if it was a crime, why are the AIPAC men now facing the possibility of up to 10 years in a federal penitentiary while Risen and his colleagues are left to bask in Pulitzer glory?

Unlike in the AIPAC case, the information uncovered and passed on to the world by the New York Times concerns communications intelligence (or “comint,� in the jargon). This is an area of acute sensitivity. In 1950, partly in response to an egregious disclosure of communications intelligence by the Chicago Tribune during World War II (suggesting that the U.S. had successfully broken Japanese military codes), Congress passed a law making such disclosures a special crime.

One of the more extraordinary features of this comint provision is that it was the fruit of a compromise, drawn with the very purpose of protecting public discussion of national defense material from more draconian restrictions. In 1946, a joint congressional committee investigating the attack on Pearl Harbor had urged a blanket prohibition on the publication of government secrets. But Congress resisted, choosing instead to carve out an exception in the special case of communications intelligence, which it described as a category “both vital and vulnerable to an almost unique degree.�

With the bill narrowly tailored in this way, the comint statute not only passed in Congress but, astonishingly in light of contemporary attitudes in the media, won the support of the American Society of Newspaper Editors. Unlike Section 793 of the Espionage Act, this comint statute is a model of clarity. If you publish classified information pertaining to communications intelligence, you have broken the law; it is nearly as simple as that.

I say “nearly� because the comint statute does specify that a defendant must have acted willfully. But unlike in the AIPAC case, willfulness in this instance would be a cakewalk to prove. In their reporting, the Times reporters made plain that they knew they were crossing a line, describing the NSA program as “classified� and “highly classified� and quoting an intelligence official cautioning them that it was “the biggest secret in government.� Further, the Times editors were warned by no less a figure than the president of the United States that publishing their story would cause grievous harm to the U.S. efforts to track Al Qaeda.

If indicted, the Times would undoubtedly sound a klaxon about the “chilling effect� of such a step and repeat what it has been declaiming on its editorial page: that the disclosure at issue is of an illegal governmental activity -- warrantless wiretapping -- and that in publishing the NSA story, it was fulfilling its public service mission. But would this argument gain traction in court? Mere allegations of illegality do not, in our system of democratic rule, create any sort of terra firma -- let alone a presumption that one is, in turn, entitled to break the law.

What is more, congressional leaders of both parties were briefed on numerous occasions about the NSA program; this is hardly a case, like Watergate, of the executive branch running amok. Whatever questions exist about the lawfulness of the NSA surveillance, there were channels to address them in camera without disclosing vital counterterrorism secrets to Al Qaeda via the front page of the New York Times.

Nor can the paper argue convincingly that the damage has been slight. The successful execution of even a relatively modest terrorist attack, as both the Madrid and London subway bombings show, requires a great deal of information to change hands surreptitiously. And if one thinks through the possibilities, the available avenues for such surreptitious information sharing are not many. In terms of speed, accuracy and reliability, telephones and e-mail simply cannot be surpassed.

Risen, implicitly defending the decision to publish the government’s secrets, has suggested that the interception program was, in fact, ineffective; he has ridiculed the idea that terrorists, in the aftermath of 9/11, would be so naive as to speak on phone lines they suspect are tapped. But in his own reporting, he has contradicted this, noting that Al Qaeda terrorists continued to talk on open lines well after 9/11 and even crediting the NSA program with helping to apprehend some of them.

Without being privy to the program’s workings, we cannot assess what value it had before the Times story came out. What is undeniable is that after it appeared, the calculus changed entirely for Al Qaeda. For a terrorist determined to mount a coordinated action, it now became critical to find new, more secure ways to operate. A primary consequence of the unauthorized disclosure has thus been to diminish our already limited ability to peer into terrorist plotting. Rep. Jane Harman, the ranking Democrat on the House Intelligence Committee, said at the time that public airing of the NSA program “damaged critical intelligence capabilities.�

The Justice Department is known to be investigating the NSA leak. But no New York Times reporters have yet been interviewed by the FBI; the G-men have instead been busy rummaging around in the files of Jack Anderson, the late journalist, wasting time looking for classified documents reportedly connected to the AIPAC case but said to be decades old.

This misallocation of resources needs to change, and the place to start is by enforcing the comint statute. When it comes to programs that help to protect us from a second and more terrible 9/11, a little chilling effect on a media willing to recklessly disclose vital secrets would not be a bad thing.