Gabriel Schoenfeld has an essay in Commentary where he says the New York Times broke the law when it reported on the NSA eavesdropping program.
Disclosing classified information, like that given to the New York Times about monitoring Al Qaeda phone calls, is illegal. But there is an avenue for whistleblowers to expose wrongdoing that involves classified info, although it has nothing to do with flashy headlines and self aggrandizing journalists.
As for whistleblowers unhappy with one or another government program, they have other avenues at their disposal than splashing secrets across the front page of the New York Times. The Intelligence Community Whistleblower Protection Act of 1998 shields employees from retribution if they wish to set out evidence of wrongdoing. When classified information is at stake, the complaints must be leveled in camera, to authorized officials, like the inspectors general of the agencies in question, or to members of congressional intelligence committees, or both. Neither the New York Times nor any other newspaper or television station is listed as an authorized channel for airing such complaints.
The New York Times damaged American surveillance efforts.
By means of that disclosure, the New York Times has tipped off al Qaeda, our declared mortal enemy, that we have been listening to every one of its communications that we have been able to locate, and have succeeded in doing so even as its operatives switch from line to line or location to location. Of course, the Times disputes that its publication has caused any damage to national security. In a statement on the paper’s website, Bill Keller asserts complacently that “we satisfied ourselves that we could write about this program . . . in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record.” In his book, James Risen goes even further, ridiculing the notion that the NSA wiretapping “is critical to the global war on terrorism.” Government officials, he writes, “have not explained why any terrorist would be so naïve as to assume that his electronic communication was impossible to intercept.”.....What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism. If information about the NSA program had been quietly conveyed to an al-Qaeda operative on a microdot, or on paper with invisible ink, there can be no doubt that the episode would have been treated by the government as a cut-and-dried case of espionage. Publishing it for the world to read, the Times has accomplished the same end while at the same time congratulating itself for bravely defending the First Amendment and thereby protecting us—from, presumably, ourselves. The fact that it chose to drop this revelation into print on the very day that renewal of the Patriot Act was being debated in the Senate—the bill’s reauthorization beyond a few weeks is still not assured—speaks for itself.
The Justice Department has already initiated a criminal investigation into the leak of the NSA program, focusing on which government employees may have broken the law. But the government is contending with hundreds of national-security leaks, and progress is uncertain at best. The real question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate secret and what is not. Like the Constitution itself, the First Amendment’s protections of freedom of the press are not a suicide pact. The laws governing what the Times has done are perfectly clear; will they be enforced?
