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.