Some Call It Treason

I certainly do, not least because the law says so:

Since December 16, 2005, when the New York Times disclosed the existence of the National Security Agency's secret electronic surveillance program, much has transpired. The most important of which is a Justice Department investigation into the identity of the person or persons who provided this information to the Times. On its editorial pages, the Times argues that "[i]llegal spying and torture need to be investigated, not whistle-blowers and newspapers."

The Times editorial should be understood for what it is: an attempt to lobby the public and government officials against a federal indictment charging the Times management, editor Bill Keller and publisher Arthur Sulzberger, Jr., with violations of the Espionage Act. They are running scared and have good reason.

Along the same lines, New York Senator Charles Schumer suggests that the motive behind the leak ("whistleblower" versus traitor) should be a critical factor in the decision to initiate a prosecution. The Senator's comments do not reflect the law and it is well they don't.

Section 793 of the Espionage Act sets forth the elements of a crime: any authorized person in possession of "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" and who purposefully discloses that information to any unauthorized person, is in violation of this provision and, under subsection (f), may be imprisoned for up to ten years.

The question for the prosecutor in this case is straightforward: Could our enemies use the disclosure of this program to their advantage and did the "leaker" have reason to believe this to be so? Senator Schumer's "whistleblower" versus "traitor" analysis is not only laughable on its face, it is contrary to the plain language and intent of the statute. A prosecutor who used this analysis would be abusing prosecutorial discretion and acting contrary to the law. (In the case of a leaker who "intends" to provide this information to the enemy, Sen. Schumer's "motivation" test might be relevant. But this would be a separate question under Section 794 of the Act, a crime which carries a life or death sentence for its violation.)

Apparently, Lefty traitors working actively to undermine the War on Terror beg to differ. How ironic that it was The Times' hometown where thousands of New Yorkers were burned, crushed, suffocated, and incinerated to death by the very terrorists the paper's struggling mightily to assist.

Well, maybe there are more apt words for this than "irony."