In the March 2006 issue of Commentary Magazine, Gabriel Schoenfeld has produced a thorough and detailed analysis in "Has the New York Times Violated the Espionage Act?"
He recommends criminal prosecution of New York Times Executive Editor Bill Keller and reporters James Risen and Eric Lichtblau.
In the 17-page article, Schoenfeld writes about the disclosure by the Times of the NSA surveillance program, considering the illegality of this publication.
He recites historical precedent starting with the Chicago Tribune's publication of intelligence information about the Battle of Midway in 1942, and the government's reluctance to prosecute at that time under the Espionage Act of 1917. He considers the Pentagon Papers case and the Morison case.
He considers the current prosecution of Steven Rosen and Keith Weissman in the AIPAC case to be identical to a potential prosecution of these Timesmen under the law.
Schoenfeld not only examines the language of the Espionage Act of 1917 but considers its legislative history. He recites the potential difficulties with prosecution under this law (no formal declaration of war, clear intent to injure the U.S., etc.).
He analyzes the 1973 Columbia Law Review article written by professors Harold Edgar and Benno C. Schmidt, Jr. entitled, "The Espionage Statutes and Publication of Defense Information" concerning the conflict between free speech and security and finds support for prosecution therein.
But the clincher for Schoenfeld is 18 U.S.C. section 798 entitled "Disclosure of Classified Information." After the World War II disclosures by the Chicago Tribune, Congress in 1950 enacted what Edgar and Schmidt called a "model of precise draftmanship." Rejecting a 1946 joint committee's recommendation of a blanket prohibition of publication of government secrets, Congress chose to carve out the special case of cryptographic intelligence. With the bill narrowly tailored, it garnered the support of the American Society of Newspaper Editors.
Under section 798, no motive is required; there is no requirement for public declaration of war. Whoever publishes any classified information concerning communication intelligence is subject to 10 years in jail. Period.
Schoenfeld concludes with the question: Can we as a nation afford to permit reporters and editors to become the unelected authority that determines what are legitimate secrets?
I think the answer is clearly NO.