Some Call it Treason
28 June 2006Background
Since the revelations in the New York Times last week concerning ongoing government work to track terrorist financial dealings through international banks there have been all manner of arguments for and against the Times. On the left the argument is that the Times is just doing its job by giving the American people whatever information they possess at the moment. Bill Keller himself said the Times had determined that the people had an interest in knowing this information and that such interest overrode national security concerns.
On the right the call has been to charge Keller, et. al. with treason. The argument goes that the Times has harmed the ability of the US to go after the enemy in a time of war.
Some on both sides of the aisle seem to believe that the first amendment to the Constitution gives absolute protection to the press regardless of how improper they may act. It would seem that, unlike all other citizens, the press is immune to prosecution.
In fact the Supreme Court has ruled that the government may not engage in prior restraint, that is, they may not take any action to prevent the press from publishing any information. However, the high court also noted that once published, the press was liable for its decisions. If publishing a particular story violates the law, the publisher, writers, etc., are liable for their actions. One way of looking at this is to ask whether someone who is not in the press could reveal the same information without fear of prosecution. In point of fact, the Constitution does not allow members of the press to do what those outside the press may not do.
One point to consider is the question, what is the press? The answer to that question is very different for us today compared to those living at our nation’s founding. In the mid to late 1700s the press was simply anyone who wanted to publish their own opinions. There were any number of people who, faced with governments or officials they disagreed with, chose to begin publishing “papers” that attacked that government or official. These papers were nothing like what we think of as newspapers today. Often only one person was responsible for the entire content. No reporters were on staff to do research and nothing claiming to be impartial reporting was going on. It was typically one individual with an axe to grind engaging in a personal attempt to influence others in his area. That was the press our founders had in mind when the first amendment was written.
Today we think of the press as the organized media. Just looking at the McCain-Feingold Campaign Finance Reform Act it is clear that the whole notion of the press has morphed into something that would be unrecognizable to the founding fathers. So, on the one hand, campaign finance reform clearly violates the first amendment in its guarantee of a free press (the ability of individuals to criticize the government unhindered) but the “new” press can not only criticize the government, but actively work to undermine it even during a time of war and even in the government’s prosecution of that war. Somehow that strikes me as antithetical to the Constitution and the intent of the founders. Indeed, it is merely a perception, not a reality, unless the government is unwilling to take action to defend itself against those who would actively work to cause our downfall as a nation.
The Specifics
The Espionage Act of 1917 is very clear as to what and who is covered under its provisions.
“Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it…Shall be fined under this title or imprisoned not more than ten years, or both.”
There can be little doubt that the New York Times, its publisher, editors and writers are described in the paragraph above. Virtually every member of government, both Democrat and Republican, who was privy to the details of the terrorist finance tracking operation agreed that it was legal, had sufficient oversight, and that it was effective, having actually caught several terrorists. An extreme minority on the left who disagree have made it abundantly clear on occasion after occasion that nothing the Bush administration can ever do will be legal or right in their minds so they can safely be ignored.
Members of both parties in Congress, the Republican and Democrat chairs of the 9/11 commission, and virtually everyone in the intelligence community worked diligently to convince the Times not to publish the story. But Bill Keller ultimately decided that he was a better arbiter of what the people need to know than all those who worked to stop him. It is difficult to see how his decision can be viewed as anything but a violation of the espionage act. Of course, the argument that the Times gave aid and comfort to the enemy in time of war is also valid and that just happens to be the definition of treason.
Should Keller and others at the Times be charged with treason? I’m not certain they should. But I am convinced that at a minimum he and they should be charged with violations of the espionage act. The $10,000 fine wouldn’t mean much to the Times but 10 years in federal prison would give others in the press something to think about.
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September 26th, 2006 at 12:15 pm
[...] I wrote a piece back in June with the title Some Call it Treason where I made the case that the New York Times should be charged with treason. But the media isn’t the only culpable entity here. Some in the administration are leaking important classified information that is harmful to our military efforts for political reasons and somehow that has to be stopped! The notion that each individual in government is free to make his or her own decisions about what should be public and what should not, based on their own personal opinions about politics is simply dangerous and is not supported in law or the Constitution. It is, in my view, treasonous for individuals in the government to intentionally undermine the military effort in a time of war, particularly for political reasons. [...]