The NYT and the Law

I have often heard conservatives complain that the Bush administration has not gone after the New York Times for publishing sensitive material about classified programs such as the NSA surveillance program. Maybe this is way, via Powerline :

SO WHAT WAS the Times thinking when it published the Risen/Lichtblau story? Bill Keller purports to have satisfied himself that the publication of the story did "not expose any technical intelligence-gathering methods or capabilities that are not already on the public record." In his radio address on the publication of the story, however, President Bush flatly asserted that publication of the story "damages our national security and puts our citizens at risk." It is doubtful that even Keller believes that he is in a better position than the president to judge the consequences of the publication of the story. This is another point on which the Frontline interviewer appears not to have pressed Keller.

In his autobiography Radical Son, former Ramparts editor David Horowitz recounts an incident involving the magazine's 1972 receipt of a draft article by a pseudonymous National Security Agency employee. Horowitz characterizes his involvement in the publication of the article in Ramparts as "the most shameful or humiliating thing I ever did."

In the Ramparts article, the NSA employee revealed that the agency had cracked the Soviet intelligence code and could read Soviet electronic communications at will. Deliberating over whether publication of the article might subject the magazine editors to prosecution under the espionage laws, Horowitz consulted prominent Harvard law professor Charles Nesson. (Nesson denies recollection of the conversation recounted by Horowitz.) Nesson was then working as a member of Daniel Ellsberg's defense team in connection with the government's prosecution of Ellsberg for removing copies of the Pentagon Papers and turning them over to the Times -- the incident underlying the Pentagon Papers case itself.

Horowitz relates that Nesson advised him that publication of the article would violate the law. In addition to providing certain technical guidance, according to Horowitz, Nesson advised:

To make its case in a court of law, the government would have to establish that we had indeed damaged national security. To do so, it would be necessary to reveal more than the government might want the other side to know. In fact, the legal process would force more information to light than the government would want anybody to know. On balance, there was a good chance that we would not be prosecuted. I had just been given advice by a famous constitutional law professor on how to commit treason and get away with it.

Viewing Keller's smug self-assurance in the Frontline interview, I don't doubt that he has relied on similar advice regarding the publication of the NSA terrorist surveillance story.

The bastards.