Replies

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 5 makes it a crime to publish certain photographs or drawings of military installations. Section 798, 6 also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems [403 U.S. 713, 736] or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. 7 If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they [403 U.S. 713, 737] publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.
The same would be true under those sections of the Criminal Code casting a wider net to protect the national defense. Section 793 (e) 8 makes it a criminal act for any unauthorized possessor of a document "relating to the national defense" either (1) willfully to communicate or cause to be communicated that document to any person not entitled to receive it or (2) willfully to retain the document and fail to deliver it to an officer of the United States entitled to receive it. The subsection was added in 1950 because pre-existing law provided no [403 U.S. 713, 738] penalty for the unauthorized possessor unless demand for the documents was made. 9 "The dangers surrounding the unauthorized possession of such items are self-evident, [403 U.S. 713, 739] and it is deemed advisable to require their surrender in such a case, regardless of demand, especially since their unauthorized possession may be unknown to the authorities who would otherwise make the demand." S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950). Of course, in the cases before us, the unpublished documents have been demanded by the United States and their import has been made known at least to counsel for the newspapers involved. In Gorin v. United States, 312 U.S. 19, 28 (1941), the words "national defense" as used in a predecessor of 793 were held by a unanimous Court to have "a well understood connotation" - a "generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness" - and to be "sufficiently definite to apprise the public of prohibited activities" [403 U.S. 713, 740] and to be consonant with due process. 312 U.S., at 28 . Also, as construed by the Court in Gorin, information "connected with the national defense" is obviously not limited to that threatening "grave and irreparable" injury to the United States. 10
It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 -586 (1952); see also id., at 593-628 (Frankfurter, J., concurring). It has not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings.
NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971)
"The Pentagon Papers Case"

I assume that the NYT has a fresh legal opinion on hand, that concludes that the publication as fact that a certain sureveillance activity is going on does -not- constitute publication of a procedure or method used in the interception of communications. That is, that publication does not run afoul of 18 USC 798(a)(3).

The existence of "keyword" surveillance of international communications is not classified information. See cites to Jabara v. Webster, 691 F.2d 272 (6th Cir. 1982); Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978); and Hearings Before the Select Comm. to Study Governmental Operations with Respect to Intelligence Activities of the U. S. Senate, 94th Cong. at http://www.freerepublic.com/focus/f-news/1548460/posts?page=91#91.

There is no dispute that NYT published, nor is there dispute about the contents of the publication. If said publication is a violation of 18 USC 793(a)(3), then indictment can occur independently of any investigation into how the NYT obtained the information.

The existence of "keyword" surveillance of international communications is not classified information ... There is no dispute that NYT published, nor is there dispute about the contents of the publication. If said publication is a violation of 18 USC 793(a)(3), then indictment can occur independently of any investigation into how the NYT obtained the information.

793, and 794 for that matter, does not require the information be "classified" only that the information be "connected with national defense" and the release of it could be "used to the injury of the United States or to the advantage of any foreign nation."

Most of the espionage that goes on in the U.S. is culled from open sources. Disparate, unclassified bits of information are collected and assembled to produce useful intelligence. True, it is no secret that the U.S. engages in signals surveillance. But it is to the advantage of the terrorists to have it confirmed, to gain further information about which calls were being monitored, and gain comfort from the furor that has erupted. The feds need to demonstrate that the U.S. was injured by the revelation. They've been loathe to prosecute these cases. This is the perfect opportunity to change that.