Last December Gabriel Schoenfeld, senior editor of Commentary, sat down to review James Risen's book State of War: The Secret History of the CIA and the Bush Administration, a portion of which had just appeared, to much acclaim and controversy, on page one of the New York Times and would later garner Risen and Eric Lichtblau a Pulitzer Prize. As he read the book Schoenfeld wondered, "Is it legal to publish this kind of stuff?" Risen's explosive revelations about the National Security Agency's domestic surveillance program enraged Schoenfeld, who decided to abandon his review and embark instead on a more ambitious essay about espionage and leaks. In recent months that essay--"Has The New York Times Violated the Espionage Act?," which appeared in the March issue of Commentary--has taken on a life of its own and has brought its author a certain degree of fame and notoriety. His influence may expand as the Times and other newspapers endure Republican fury and calls for prosecution as a result of their June 22 decision to publish a story revealing a secret government financial tracking program.
In his research into the 1917 Espionage Act and subsequent espionage statutes, Schoenfeld discovered Section 798 of the US Criminal Code, enacted by Congress in 1950, which reads, "Whoever knowingly and willingly communicates, furnishes, transmits or otherwise makes available to an unauthorized person, or publishes...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." (His italics.) This, Schoenfeld believed, was the "completely unambiguous" smoking gun he needed against Risen and the Times--both of whom, he felt, had "damaged critical intelligence capabilities" and undermined national security with the NSA story. Schoenfeld knew when he wrote the essay that no journalist had ever been prosecuted under Section 798, but his purpose was to stiffen the spine of the Justice Department. "The laws governing what the Times has done are perfectly clear," he concluded. "Will they be enforced?"
Schoenfeld's essay caught the eye of a producer at The NewsHour With Jim Lehrer, who invited him on the show on April 25. "The rest is history," Schoenfeld says. He was subsequently invited to testify twice before Congress: In May and June he appeared before the House Intelligence Committee and the Senate Judiciary Committee, where he more or less summarized the Commentary essay. Schoenfeld, who has written half a dozen pieces for the Times since 1990, also appeared on MSNBC's The Abrams Report and was granted space on the op-ed page of the Los Angeles Times.
Some press critics were quick to contest Schoenfeld's arguments. Writing in Slate, Jack Shafer noted that under the logic employed by Commentary, many leading national security reporters could be prosecuted under Section 798, including Bill Gertz of the Washington Times (for a 2000 story titled "Russian Merchant Ships Used in Spying" that relied on CIA and NSA documents), James Bamford (for a 2006 story in The Atlantic on the successful efforts of the NSA to target Islamic militants in Yemen), Bob Woodward (for divulging in his book Plan of Attack that Iraq had "the kind of old-line Soviet coding equipment that NSA knew well and could crack") and Seymour Hersh (who drew heavily on NSA documents for a 2001 story in The New Yorker on the machinations of the Saudi royal family). Shafer cited a dozen other reporters who could conceivably be jailed, including Stephen Hayes of The Weekly Standard.
Other Schoenfeld critics leaped into the fray with a series of letters that appear in the June Commentary. In one letter Steven Aftergood of the Federation of American Scientists takes aim at the sweeping nature of the law and notes that he recently obtained a historical document regarding the NSA budget for 1972--a figure that remains classified. "Should I therefore be prosecuted? Should Commentary be penalized for publishing the information in this letter? That would be absurd." "My view," proclaims Morton Halperin of the Open Society Institute in another letter, is that the Times "may have violated a criminal statute but that its conduct was far from shameful." Thunders Ohio University professor Joe Bernt: "If letting the public know that we have a law-violating President who needs to be impeached violates the law, I only hope the New York Times continues to violate the laws of tyrants."
Is the Times vulnerable to prosecution? On May 21 US Attorney General Alberto Gonzales declared that there is "a possibility" that journalists can be prosecuted for publishing classified information. Most experts doubt that the government would attempt such a maneuver. Says Geoffrey Stone, professor of law at the University of Chicago and author of Perilous Times: Free Speech in Wartime, "The fact is that the US government, in 215 years, has never once prosecuted the press for publishing government secrets." In Stone's view the 1950 law is "clearly unconstitutional. It includes no reference whatever to clear and present danger or any other level of harm to the national security."
Others agree. "While in theory the Times might be vulnerable," notes Boston defense attorney Harvey Silverglate, "there are arguable defenses. And besides, where is the Department of Justice going to get a twelve-citizen jury to unanimously buy the government's view that the Times is a criminal but the Bush Administration is not?" Schoenfeld says he cannot imagine a government prosecution: "Before my essay came out, I would say the chance was zero percent. After the article came out, the odds have risen to .05 percent." Then what did he achieve with the essay? "I hope," he says, "that I set in motion a 'chilling effect,' however slight, when it comes to the publication of sensitive and highly classified counterterrorism programs, the illegal disclosure of which may make it easier for radical Islamists to strike us again."
In recent months Schoenfeld's essay certainly appears to have provided intellectual ammunition for those who would censor and punish the press. His arguments have already been reproduced in the Wall Street Journal, National Review and The New Criterion; by Accuracy in Media; and by pundits like Michael Barone. Fortunately, some top newspaper editors seem to be waking up to the dangers. "I'm not sure journalists fully appreciate the threat confronting us," Times executive editor Bill Keller recently told National Journal, citing "the Times in the eavesdropping case, the Post for its CIA prison stories and everyone else who has tried to look behind the 'war on terror.'"
Critics of the Times will no doubt brandish the Schoenfeld essay in their current offensive against the paper for printing the Swift database story, also by Risen and Lichtblau. What are Keller's thoughts on the piece? "I like to think the American electorate," Keller told The Nation before the Swift controversy erupted, "would not look kindly on the federal government seeking to lock up journalists as spies. Even if you accept at face value the polls on media credibility, I think Americans are proud of having a free press and would find an espionage prosecution to be a chilling governmental overreach."