The New York Times and the Espionage Act: Letters

A provocative article written by Gabriel Schoenfeld in the March 2006 issue of Commentary Magazine proposed that the New York Times should be held liable under the espionage statutes for having published the December 16, 2005 article that revealed the existence of the Bush Administration’s warrantless domestic surveillance program.

Discussion of that proposal continues with several lengthy letters to the editor in the June 2006 Commentary, including one from myself, along with a reply from the author.

“Mr. Schoenfeld argues that the paper committed not only a shameful act but a crime,” wrote Morton Halperin of the Open Society Institute. “My view is that it may have violated a criminal statute but that its conduct was far from shameful.”

“What should the Times have done when it received the information? Exactly what it did do,” Mr. Halperin wrote.

“During the 90 years of the [Espionage Act’s] existence, no one in government has attempted to push it in the direction Mr. Schoenfeld advocates, because to do so would have been constitutionally questionable and politically incendiary,” wrote Paul McMasters of the Freedom Forum.

“Although portions of the Espionage Act are riddled with ambiguous language, the provisions governing unauthorized publication of classified communications intelligence are perfectly clear, and the Times’s actions unequivocally violated them,” responded Mr. Schoenfeld. “I find it striking that not one of my correspondents challenges this.”

See “The New York Times and the Espionage Act,” Gabriel Schoenfeld and Critics, Commentary Magazine, June 2006.