In every public controversy of any magnitude, so much rubbish gets uttered and written that it is frequently necessary to refocus on the essential facts. The New York Times' publication of details of a classified, secret U.S. government program to track terrorist financing is a case in point.
According to the Times, approximately 20 people anonymously provided information for the article. At least some of those people, current and former government employees, clearly violated the law and put a national security program at risk (to say the least) by revealing classified information. The Times knew that at least some of its sources were violating the law by providing that classified information.
The Times was asked by administration officials, national security officials and others not to publish the article. At least some of those conversations were detailed and extensive. The Times was told that publication would harm an ongoing national security operation.
The Times published the article despite the government entreaties. In doing so, the Times knew or should have known that the act of publishing the classified information and thus putting the program at risk could in and of itself be construed as a violation of law, regardless of how the Times might view the applicability of those laws or the reality of prosecution therefrom.
Since publication of the Times article, no one with any credibility whatsoever has argued that the necessarily secret program violates any law, was being mismanaged, misused or abused. In fact, it has been a program remarkably similar to one editorially suggested by the Times shortly after 9-11. It has been successful.
Those are the essential facts, and other than details filling out those facts and the application of the law to those facts, nothing much else matters.
The various and shifting explanations of the Times, its hirelings, supporters and surrogates for why the newspaper published what it did do not matter. What the Times believes regarding terrorist knowledge of the program does not matter. What the Times believes regarding its harm or lack thereof to the program does not matter. The Pentagon Papers do not matter. Plamegate does not matter in any way helpful to the Times. The "concerns" of the leakers do not matter. Which members of Congress were or were not briefed on the program do not matter. What liberal and conservative commentators say does not matter. The belief by some that President Bush is a secretive, power-mad despot does not matter. The belief by others that executive power must be expansive in a time of war does not matter. The opinions of journalism school deans do not matter. But...but...but does not matter.
That's all just jibber-jabber. Grand jury proceedings have a way of minimizing jibber-jabber that the public square does not.
National security and the law matter now. A lot. If the administration cares as much as it talks about either, there is simply no option other than investigation of the leaks and the leakers, as a national security priority. Only as a result of investigation will come precise knowledge of what laws were broken by whom and whether there is sufficient evidence for indictment and prosecution. That will come with risk.
Elements of the media will go berserk. Let them. In this specific case, separate and distinct from all others, they will be wrong on the facts, wrong on the responsibility, wrong on the ethics and wrong on the law.
Freedom of the press is not absolute. The Times, having acted with knowledge and forethought against the legitimate requests of government officials, against the interests of national security, must live within the law as it is, not as the Times wants it to be. What lawyers for the Times do know absolutely is that if properly required by a federal grand jury to reveal the sources of the classified information, the only choices are to comply or face contempt. For that, the Plamegate precedent is as fresh, as relevant and as settled as they come.
An investigation could temporarily spur additional leaks harmful to national security. But that door is already wide open, and the more leakers react out of retaliation, the more mistakes they will make, the sooner to be caught, stopped and punished.
Investigations and trials may in and of themselves produce the public release of additional classified information. But there are ways to guard against that, all within the law and all without violation of due process.
While the Justice Department could and, under normal circumstances, should conduct such an investigation, politics and perceptions are just too raw right now for that. All things considered, we believe this is another job for Patrick Fitzgerald. No one can intimidate him, neither president nor press. He has the most current experience of all federal prosecutors in such matters. His prosecution team appears not to leak a breath. Politics and perceptions are of no consequence to him. His appointment would be immune from substantive criticism.
At the end of the day, government employees and former employees took it upon themselves to publicly reveal national security secrets entrusted to them. The New York Times took it upon itself to publish those secrets. The "public interest" in the case has now degenerated to combative invective and perspective, but a nation struggling to protect itself against a virulent enemy who kills by no rules must define that interest, on the basis of laws that do not and cannot allow vigilante national security policy.July 13, 2006