Posted on 09/30/2006 6:40:07 AM PDT by 13Sisters76
Indict the New York Times By Henry Mark Holzer FrontPageMagazine.com | September 29, 2006
It is an article of faith on the Left and among its fellow travelers that the Bush administration stole two elections, made war on Iraq for venal reasons, tortured hapless foreigners, and conducted illegal surveillance of innocent Americans. A corollary of this mindset is that the press, primarily the Washington Post and The New York Times, has a right, indeed a duty, to print whatever they want about the administration—even if the information compromises national security.
Not true. The press is not exempt from laws that apply to everyone else. The press is not exempt from laws protecting our national security. The New York Times is not exempt from the Espionage Act, as we shall see in a moment.
But first, it’s necessary to understand what an indictment of the Times does not involve.
First, an Espionage Act indictment of The New York Times would not even remotely constitute an attack on a free press. As Justice White wrote in Branzburg v. Hayes, “[i]t would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws.”
Nor would an indictment of the Times constitute an attempt to restrain it from publishing news. The anti-anti-terrorists who seek to justify the Times revealing the NSA’s domestic surveillance program and thus prevent their flagship paper from being indicted, rely on a Supreme Court decision entitled New York Times Company v. United States, better known as the Pentagon Papers Case. Their reliance is misplaced.
In 1971 a disgruntled anti-war activist delivered a classified study—“History of U.S. Decision-Making Process on Viet Nam Policy”—to The New York Times and the Washington Post. The government sued to enjoin publication—seeking to impose a prior restraint. If there are any fundamental principles in modern First Amendment law, one is that the burden on government to restrain publication (as compared, for example, with later punishing its publication) is extremely heavy. Accordingly, in a 6-3 decision, the Court ruled for the newspapers, and the publication of the embarrassing Pentagon Papers went ahead.
Thus, New York Times Company v. United States, where the Court rejected a government-sought prior restraint on publication, would have no precedential value in a case where, after publication, the government sought to punish the Times for violating the Espionage Act.
Third, not only was there no legal impediment to the NSA’s domestic surveillance program, there was abundant authority for it. The President possesses broad powers as chief executive and Commander in Chief under Article II of the Constitution. Congress has repeatedly delegated to all presidents considerable war-related powers, and especially post-9/11 to President Bush. It was Congress that created and empowered the National Security Agency. The Executive Branch’s NSA domestic surveillance program, aimed at obtaining intelligence about the foreign-based terrorist war on the United States, was/is an integral element of our national security policy and its implementation. No Supreme Court decision has ever held that the Presidential/Congressionally-sanctioned acquisition of that kind of intelligence was constitutionally or otherwise prohibited.
Accordingly, it is pointless to consider whether the NSA’s domestic surveillance program was legal. It was! If a case involving that program ever reaches the Supreme Court, that’s what its ruling will be.
Fourth, the interesting history of the Espionage Act is irrelevant to whether the Times may have violated it.
Finally, it is a waste of time to consider whether the Act is constitutional. It has been expressly and impliedly held constitutional more than once.
This brings us to whether The New York Times is indictable (and ultimately convictable) for violating the Espionage Act.
The facts are clear. The NSA was engaged in highly classified warrantless wiretaps of domestic subjects in connection with the War on Terror, and the Times, a private newspaper, made that information public.
It is to those facts that the Espionage Act either applies, or does not apply.
Title 18, Section 793 of the United States Code, provides that “(e) Whoever having unauthorized possession of . . . any document . . . or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates . . . the same to any person not entitled to receive it . . . (f) . . . [s]hall be fined under this title or imprisoned not more than ten years, or both. (g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.” (Section 794 is inapplicable. It deals with “gathering or delivering defense information to aid [a] foreign government.”)
“It is,” said the United States Court of Appeals for the Fourth Circuit in assessing Section 793 (e) in United States v. Morison, “difficult to conceive of any language more definite and clear.”
Let’s break down the statute into its component parts.
“Whoever”: this would mean the New York Times company, publisher Arthur Sulzberger, Jr., editor Bill Keller, and anyone else privy to the information upon which the story was based.
“Having unauthorized possession”: the information was classified, and the Times was not authorized to have it.
“Of any document . . . or information”: certainly the Times had information, because it published it; it is inconceivable that the newspaper did not have documents of some kind, because the newspaper would never have gone that far out on a limb without at least some corroboration beyond an oral report(s).
“Relating to the national defense”: no comment is necessary; indeed, the Times has conceded that targets of the warrantless wiretaps were persons who may have had some connection to terrorists.
“Which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation”: obviously the Times had “reason to believe,” because it withheld the story for a year.
“Willfully communicates . . . the same”: no comment is necessary; the story was front-page news.
"To any person not entitled to receive it”: even the Times can’t argue that subway straphangers, or any other member of the public, was “entitled to receive” information about the classified operations about one of this country’s most secret and highly protected agencies.
Several years ago Erika Holzer and I wrote a book entitled “Aid and Comfort”: Jane Fonda in North Vietnam, which proved that her conduct in Hanoi made her indictable for, and convictable of, treason. We discovered that she was not indicted because of a political failure of will by the Nixon administration. To summarize a chapter of our book, suffice to say that the government was afraid to indict a popular anti-war actress who had the support of the radical left. Even today, three decades after Fonda’s trip to North Vietnam and three years after the publication of our book, we receive countless letters lamenting that Hanoi Jane was never punished for her conduct.
We tell them that it’s too late, that any possibility of seeing justice done for Fonda’s traitorous conduct is long gone. That is all the more reason why those of us who remember the Fonda episode, and who understand the nature and importance of today’s War on Terror, should not rest until the government calls to account The New York Times—in a court of law, with an indictment and hopefully a conviction, under the Espionage Act.
ENDNOTES:
[*] The crimes charged in the indictment were committed in Manhattan, which is located within the jurisdiction of the United States District Court for the Southern District of New York.
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....in other words, their brothers.
What I don't get is the frenchies immediately open an inquiry into the leak of an 'Osama has died' report, but the US is still letting the Slimes leak secrets of national security without seriuos investigation?
WTF?
The New York Times is the voice of the Democrat Party not the entire country. The New York Times is the Democrat Party, working to promote Republican hatred. Someone is buying the products from the advertisements, which support the Old Dirty Rag!
Two Comments:
1. Henry Mark Holzer isn't just anybody... he's a retired law prof who is arguably the top authority in the USA on the law of treason and related laws (espionage, various wartime misconduct, etc).
2. We don't know if the USG has opened an investigation. They don't generally tell anybody until the grand jury convenes (and sometimes not even then). Although an investigation doesn't really fit with the Bush Administration's general passivity, misguided collegiality, and feebleness on this issue.
d.o.l.
Criminal Number 18F
Giving the New York Times and the Washington Post a pass on printing government classified secrets is an indictment of our government, not these lousy papers.
I hope the article makes sense. One question, though: does successful prosecution depend on whether the War on Terror is a "declared war", or does it fall under the confused title, "undeclared war" (like Vietnam). If it were a "declared war" it would seem that ... a) Pres Bush could easily declare Marshal Law, or even selected parts thereof; b) suspend habeus corpus, particularly to enemy combatants; c) prosecute treason with no problem. But since it is an "undeclared war" the lefties might have an excuse to block anything the Pres attempts.
These are my uninformed musings. Any informed opinion out there?
Interesting. You sound like you know what you're talking about, so I would like to ask a question about something you said: Can Grand Juries be held in secret?
An interesting article but it's all academic if the government fears political repercussions more than risks to national security.
The real existential threat isn't against islamo-savages; it's against intelligent, well funded adversaries absolutely committed to destroying our way of life.
The WoT (including Iraq) is merely one theatre in this conflict. The left declared war on us long ago - when will this country wake up and realize it's in a fight for its life?
Interesting article, but a complete waste of time. Bush and the rest of the (R)s don't have the stones to stand up to Democrats and call them what they are - traitors. Remember the "new tone?"
Nothing to see here - move on.
I'm praying the USG has opened up an investigation. If they don't, then we may as well strike the word, treason, from our vocabulary.
The Bush administration should realize by now that these traitors will do anything to gain their power back. If they do not have the stones to protect our rule of law and prosecute these evil doers, we really are doomed.
Bookmark.
You got it. It's okay to indict Martha Stewart; Scooter Libby, but it's not possible to indict the NYT, an organization openly involved in treason.
The application of Title 18, section 793, doesn't depend on the existence of a state of war. This is not a case of treason.
IANAL, but the power of lawyers is such that one must learn something of them and their nefarious ways.
Can Grand Juries be held in secret?
Depends on the rules of criminal procedure. Under Federal law, the grand jurors, prosecutors, and presiding judge are sworn to secrecy. (There is no defence attorney at a GJ). Witnesses, generally not.
Here is an extract from the ABA FAQ for the media on Grand Juries.
Why are grand jury proceedings secret?I hope this answers your question. It does go some ways toward explaining how the old lawyer saying, "You could indict a tree [lamppost, fire hydrant, ham sandwich, etc.]," is true.Rule 6(e) of the Federal Rules of Criminal Procedure provide [sic] that the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury, unless ordered to do so in a judicial proceeding. Secrecy was originally designed to protect the grand jurors from improper pressures. The modern justifications are to prevent the escape of people whose indictment may be contemplated, to ensure that the grand jury is free to deliberate without outside pressure, to prevent subornation of perjury or witness tampering prior to a subsequent trial, to encourage people with information about a crime to speak freely, and to protect the innocent accused from disclosure of the fact that he or she was under investigation.
Why can a grand jury witness talk about his or her testimony?
In the federal courts, the witness is not sworn to secrecy, and may disclose whatever he or she wishes to whomever he or she wishes. The witness exemption was adopted in part because it was thought that requiring witness secrecy was unrealistic and unenforceable, and in part to allow the witness to rebut rumors concerning his or her testimony. There is a basic revulsion in the United States about secret testimony.
Are there any other exceptions to grand jury secrecy?
At one time, the defendant in a criminal trial was never given access to the grand jury testimony that resulted in the indictment. By the 1980s, in most jurisdictions, if a witness who testified before the grand jury was called to testify at the eventual trial, the defendant was given a copy of that witness's grand jury testimony to use for possible impeachment. Some jurisdictions also give the defendant a list of everyone who testified before the grand jury, and several give the defendant a full transcript of all relevant grand jury testimony. In the federal system, no such list is provided, and the grand jury transcripts of only those persons who testify on behalf of the prosecutor at trial are given to the defendant.
In practice, prosecutors are usualy larval-stage politicians, and are reluctant to bring a case unless there is some chance that they can win it; the only thing more deadening to a prosecutor's political ambition than a losing record is a loss in a high-profile case (see "Clarke, Marcia," et al.)
d.o.l.
Criminal Number 18F
No. The statute Dr. Holzer cites is one routinely used in peacetime as well as wartime prosecutions.
It's hard to believe, but the FBI and the military have literally dozens of espionage investigations going at any given time. Some prove unfounded, some the evidence takes years or can never be brought to the point of prosecution, some are handled below the radar screen with the spy cooperating with counterintelligence agents either on damage assessments, or by being "turned" to mislead the enemy. The incentive in that case usually involves non-prosecution.
(In World War II, both the Axis and Allies routinely shot cooperating spies when they were done with them. We no longer have that ruthless edge).
d.o.l.
Criminal Number 18F
Thank you--that makes sense (esp. the part about protecting the innocent who were wrongly accused). Much appreciated...
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