Put the Traitors on Trial

Mainstream media must stop putting partisan "gotcha" politics ahead of national security & defense.

Actually, they must be stopped. And federal prosecutors must do it.

In the March 2006 issue of Commentary, Gabriel Schoenfeld argues that the New York Times violated the Espionage Act when it disclosed, last December, a classified NSA program of tracking international communications of suspected terrorists:

.... What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism. If information about the NSA program had been quietly conveyed to an al-Qaeda operative on a microdot, or on paper with invisible ink, there can be no doubt that the episode would have been treated by the government as a cut-and-dried case of espionage. Publishing it for the world to read, the Times has accomplished the same end while at the same time congratulating itself for bravely defending the First Amendment and thereby protecting us — from, presumably, ourselves. The fact that it chose to drop this revelation into print on the very day that renewal of the Patriot Act was being debated in the Senate — the bill’s reauthorization beyond a few weeks is still not assured — speaks for itself.

The Justice Department has already initiated a criminal investigation into the leak of the NSA program, focusing on which government employees may have broken the law. But the government is contending with hundreds of national-security leaks, and progress is uncertain at best. The real question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate secret and what is not. Like the Constitution itself, the First Amendment’s protections of freedom of the press are not a suicide pact. The laws governing what the Times has done are perfectly clear; will they be enforced?

And Scott Johnson of Power Line has an analysis, Jan. 24, at The Weekly Standard:

.... Assuming that these statutes apply to the leaks involved in the NSA story, has the Times itself violated the statutes and committed a crime? The answer is clearly affirmative. Section 798, for example, makes knowing and willful "publication" of the proscribed information a crime. Moreover, under the basic federal aiding and abetting statute — 18 U.S.C. S 2 — in willfully helping the leakers publish their disclosures, the Times is as culpable as they are, and punishable as a principal.

Which raises the question: Does the First Amendment afford the Times immunity from criminal liability for its conduct? In New York Times Co. v. United States, 403 U.S. 713 (1971; otherwise known as the Pentagon Papers case), the Supreme Court held that it was presumptively unconstitutional for the government to restrain the publication of classified information. In separate opinions concurring with or dissenting from the order allowing the Times to continue publication of its Pentagon Papers stories, however, a majority of the justices contemplated that the Times could be held responsible for any violation of the law involved in publishing the stories.

Indeed, in their concurring opinions, Justices Douglas and White cited and discussed Section 798 as the prototype of a law that could be enforced against a newspaper following publication of information falling within the ambit of the statute....

NYT has since published information on other classified anti-terrorist programs; their most egregious violation of our nation's security was last week's article on the monitoring of international banking transactions for suspicious patterns. Most egregious because NYT does not allege that the program is illegal or unconstitutional, acknowledges that effective oversight has been exercised to prevent abuse, and admits that the program has actually resulted in the capture of wanted terrorists.

IOW, this was another drive-by hit by the drive-by media, in which LAT also joined, aimed at embarrassing the Bush administration by innuendo. Thus, Michael Barone:

.... Why do they hate us? Why does the Times print stories that put America more at risk of attack? They say that these surveillance programs are subject to abuse, but give no reason to believe that this concern is anything but theoretical. We have a press that is at war with an administration, while our country is at war against merciless enemies. The Times is acting like an adolescent kicking the shins of its parents, hoping to make them hurt while confident of remaining safe under their roof. But how safe will we remain when our protection depends on the Times?

It was also another act giving aid and comfort to the enemies of our country and our way of life, giving them pointers to help them to elude detection and, thus, helping them to eventually kill more of us.

The publishers, the editors, and the reporters need to be looking hard at long stretches behind bars. (So do their informants.) If that would have a "chilling effect" on journalism, I say, Faster, please. Traitorous journalism deserves no protection; rather, it deserves contempt & derision — and punishment.

Could the Bush administration take the political heat if a prosecution proceeds? I don't know. But I do know that such is a political consideration. And just as I don't want political considerations to propel a prosecution — Mike Nifong? Ronnie Earle? — neither do I want political considerations to impede a prosecution. Either way, politics is deciding who gets prosecuted, and that's bad for everybody.

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: "I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." This section does not affect other oaths required by law. (5 USC § 3331. Oath of office)

Is NYT deliberately provoking the federal government, offering the administration more and more bait, hoping to provoke a showdown? Good! This battle needs to be fought. And soon. Nobody elected NYT to be the arbiter of national-security needs.

Noel Sheppard has a great blog on the SWIFT situation, at NewsBusters. Patrick Frey relates a radio interview talking about LAT's motivations in publishing the story, at Patterico's Pontifications. Michelle Malkin has a good round-up on the subject at her blog. Hugh Hewitt slams NYT's Bill Keller into the wall, responding to Keller's vapid defense of providing valuable information to America's enemies. The Anchoress is all over this. Heather MacDonald writes at the Weekly Standard. Finally, Scott Johnson blogs today a letter to NYT from an Army lieutenant in Iraq, at Power Line:

Dear Messrs. Keller, Lichtblau & Risen:

Congratulations on disclosing our government's highly classified anti-terrorist-financing program (June 23). I apologize for not writing sooner. But I am a lieutenant in the United States Army and I spent the last four days patrolling one of the more dangerous areas in Iraq. (Alas, operational security and common sense prevent me from even revealing this unclassified location in a private medium like email.)

Unfortunately, as I supervised my soldiers late one night, I heard a booming explosion several miles away. I learned a few hours later that a powerful roadside bomb killed one soldier and severely injured another from my 130-man company. I deeply hope that we can find and kill or capture the terrorists responsible for that bomb. But, of course, these terrorists do not spring from the soil like Plato's guardians. No, they require financing to obtain mortars and artillery shells, priming explosives, wiring and circuitry, not to mention for training and payments to locals willing to emplace bombs in exchange for a few months' salary. As your story states, the program was legal, briefed to Congress, supported in the government and financial industry, and very successful.

Not anymore. You may think you have done a public service, but you have gravely endangered the lives of my soldiers and all other soldiers and innocent Iraqis here. Next time I hear that familiar explosion — or next time I feel it — I will wonder whether we could have stopped that bomb had you not instructed terrorists how to evade our financial surveillance.

And, by the way, having graduated from Harvard Law and practiced with a federal appellate judge and two Washington law firms before becoming an infantry officer, I am well-versed in the espionage laws relevant to this story and others — laws you have plainly violated. I hope that my colleagues at the Department of Justice match the courage of my soldiers here and prosecute you and your newspaper to the fullest extent of the law. By the time we return home, maybe you will be in your rightful place: not at the Pulitzer announcements, but behind bars.

Very truly yours,

Tom Cotton
Baghdad, Iraq

P.S. Here is the text of a letter (June 26?) from Treasury Secretary John Snow to NYT:

Mr. Bill Keller, Managing Editor
The New York Times
229 West 43rd Street
New York, NY 10036

Dear Mr. Keller:

The New York Times’ decision to disclose the Terrorist Finance Tracking Program, a robust and classified effort to map terrorist networks through the use of financial data, was irresponsible and harmful to the security of Americans and freedom-loving people worldwide. In choosing to expose this program, despite repeated pleas from high-level officials on both sides of the aisle, including myself, the Times undermined a highly successful counter-terrorism program and alerted terrorists to the methods and sources used to track their money trails.

Your charge that our efforts to convince The New York Times not to publish were “half-hearted” is incorrect and offensive. Nothing could be further from the truth. Over the past two months, Treasury has engaged in a vigorous dialogue with the Times — from the reporters writing the story to the D.C. Bureau Chief and all the way up to you. It should also be noted that the co-chairmen of the bipartisan 9-11 Commission, Governor Tom Kean and Congressman Lee Hamilton, met in person or placed calls to the very highest levels of the Times urging the paper not to publish the story. Members of Congress, senior U.S. Government officials and well-respected legal authorities from both sides of the aisle also asked the paper not to publish or supported the legality and validity of the program.

Indeed, I invited you to my office for the explicit purpose of talking you out of publishing this story. And there was nothing “half-hearted” about that effort. I told you about the true value of the program in defeating terrorism and sought to impress upon you the harm that would occur from its disclosure. I stressed that the program is grounded on solid legal footing, had many built-in safeguards, and has been extremely valuable in the war against terror. Additionally, Treasury Under Secretary Stuart Levey met with the reporters and your senior editors to answer countless questions, laying out the legal framework and diligently outlining the multiple safeguards and protections that are in place.

You have defended your decision to compromise this program by asserting that “terror financiers know” our methods for tracking their funds and have already moved to other methods to send money. The fact that your editors believe themselves to be qualified to assess how terrorists are moving money betrays a breathtaking arrogance and a deep misunderstanding of this program and how it works. While terrorists are relying more heavily than before on cumbersome methods to move money, such as cash couriers, we have continued to see them using the formal financial system, which has made this particular program incredibly valuable.

Lastly, justifying this disclosure by citing the “public interest” in knowing information about this program means the paper has given itself free license to expose any covert activity that it happens to learn of — even those that are legally grounded, responsibly administered, independently overseen, and highly effective. Indeed, you have done so here.

What you’ve seemed to overlook is that it is also a matter of public interest that we use all means available — lawfully and responsibly — to help protect the American people from the deadly threats of terrorists. I am deeply disappointed in the New York Times.

Sincerely,

[signed]

John W. Snow, Secretary
U.S. Department of the Treasury

P.P.S. Two weeks after 9/11, NYT had actually demanded that the administration do the kind of things that the newspaper has now blown the lid off, in an editorial, Sep. 24, 2001, reproduced at Power Line (emphasis added):

Organizing the hijacking of the planes that crashed into the World Trade Center and the Pentagon took significant sums of money. The cost of these plots suggests that putting Osama bin Laden and other international terrorists out of business will require more than diplomatic coalitions and military action. Washington and its allies must also disable the financial networks used by terrorists.

The Bush administration is preparing new laws to help track terrorists through their money-laundering activity and is readying an executive order freezing the assets of known terrorists. Much more is needed, including stricter regulations, the recruitment of specialized investigators and greater cooperation with foreign banking authorities. There must also must be closer coordination among America's law enforcement, national security and financial regulatory agencies.

Osama bin Laden originally rose to prominence because his inherited fortune allowed him to bankroll Arab volunteers fighting Soviet forces in Afghanistan. Since then, he has acquired funds from a panoply of Islamic charities and illegal and legal businesses, including export-import and commodity trading firms, and is estimated to have as much as $300 million at his disposal.

Some of these businesses move funds through major commercial banks that lack the procedures to monitor such transactions properly. Locally, terrorists can utilize tiny unregulated storefront financial centers, including what are known as hawala banks, which people in South Asian immigrant communities in the United States and other Western countries use to transfer money abroad. Though some smaller financial transactions are likely to slip through undetected even after new rules are in place, much of the financing needed for major attacks could dry up.

Washington should revive international efforts begun during the Clinton administration to pressure countries with dangerously loose banking regulations to adopt and enforce stricter rules. These need to be accompanied by strong sanctions against doing business with financial institutions based in these nations. The Bush administration initially opposed such measures. But after the events of Sept. 11, it appears ready to embrace them.

The Treasury Department also needs new domestic legal weapons to crack down on money laundering by terrorists. The new laws should mandate the identification of all account owners, prohibit transactions with "shell banks" that have no physical premises and require closer monitoring of accounts coming from countries with lax banking laws. Prosecutors, meanwhile, should be able to freeze more easily the assets of suspected terrorists. The Senate Banking Committee plans to hold hearings this week on a bill providing for such measures. It should be approved and signed into law by President Bush.

New regulations requiring money service businesses like the hawala banks to register and imposing criminal penalties on those that do not are scheduled to come into force late next year. The effective date should be moved up to this fall, and rules should be strictly enforced the moment they take effect. If America is going to wage a new kind of war against terrorism, it must act on all fronts, including the financial one.

That would be a fine example of Core's Law of New Media: There Is No Such Thing As Local News Anymore: In the Internet Age, anything anybody has said, or written, or done — anywhere, anytime — can sooner or later become known everywhere else.

Lane Core Jr. CIW P — Mon. 06/26/06 05:42:53 PM
Categorized as Media & Political.