[Paleopsych] Atlas Sphere: Indict the New York Times
checker at panix.com
Thu Jan 12 19:23:21 UTC 2006
Indict the New York Times
[Go ahead and critique, folks. I'll send out your thoughts, unless you
specifically ask me not to. It's not clear to me how our "national
security" was compromised. Aren't the citizens part of this "nation,"
and didn't Amendment IV speak of the "right of the people to be SECURE in
their persons, houses, papers, and effects, against unreasonable
searches and seizures"? Or does the "nation's" security extend only to our
[So it is unclear whether the Espionage Act violates the Bill of Rights,
even if past Supreme Courts have allowed certain somewhat similar powers.
And did Congress intend the Bush administration to do what it did? Or is
the intention of Congress something the Executive Branch can determine for
itself at will? Is the United States a nation of laws (Congress) or of
Presidential decrees? It is also unclear to me whether the Bush
administration violated the laws governing the NSA.
[Share with me your other objections. Basically, domestic spying is open
to serious abuses and it must be checked. I have not been following the
details and so don't know just how various members of Congress have
reacted, but it's had not been one of ringing endorsement.
[Mr. Jefferson said if he had to choose between newspapers and no
government or government and no newspapers, he would unhesitatingly choose
[I don't know what restrictions on the press I would allow in the unlikely
event that the United States got into a war justifiably. Help!]
[And just how did Hanoi Jane jeopardize our national security? Did it mean
that North Vietnam was more likely to invade the United States? She was
hardly the only critic of our foreign policy.]
Indict the New York Times
By Henry Mark Holzer
Jan 10, 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, its 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 NSAs 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
Third, not only was there no legal impediment to the NSAs 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 Branchs 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 NSAs domestic
surveillance program was legal. It was! If a case involving that
program ever reaches the Supreme Court, thats what its ruling will
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
It is to those facts that the Espionage Act either applies, or does
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
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.
Lets 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 cant argue
that subway straphangers, or any other member of the public, was
entitled to receive information about the classified operations
about one of this countrys most secret and highly protected
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
Fondas 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 its too late, that any possibility of seeing
justice done for Fondas 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 todays 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.
Henry Mark Holzer is a professor emeritus at Brooklyn Law School
and a constitutional and appellate lawyer. He provided legal
representation to Ayn Rand on a variety of matters in the 1960s.
His latest book, Keeper of the Flame: The Supreme Court
Jurisprudence of Justice Clarence Thomas, will be published later
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