• This is a partial transcript from "The Journal Editorial Report," July 16, 2006, that has been edited for clarity.

    PAUL GIGOT, HOST: We continue the debate this week over the obligations of the press in wartime. In the wake of New York Times stories revealing highly sensitive counterterrorism programs, government officials and even some journalists are asking: can journalists be prosecuted for publishing national security secrets?

    Gabriel Schoenfeld is the senior editor of Commentary magazine. He testified before the Senate Judiciary Committee on this topic last month.

    Mr. Schoenfeld, welcome.


    GIGOT: You're a journalist. And yet, you think that The New York Times could be and probably should be prosecuted for disclosing these national security bits of information. Why?

    SCHOENFLED: Well, we're in a very difficult struggle against these Al Qaeda operatives who want to strike us again. We know that. And in the battle against Al Qaeda, intelligence is the most important front.

    And now we have a situation where a major newspaper is taking upon itself the decision to publish and disclose our key counterterrorism measures.

    Back in December, The Times published a story revealing that we were wireless — wiretapping of Al Qaeda communications across borders.

    More recently, they've disclosed our financial monitoring programs against Al Qaeda. And according to even ranking Democrats, like Jane Harmon on the House Intelligence Committee, they've caused critical damage to our ability to interdict ongoing al Qaeda operations against us.

    GIGOT: Now let me read to you a quote from Bill Keller, who's the executive editor of The New York Times, defending the most recent reports on the counterterrorism story.

    He said this: "We remain convinced that the administration's extraordinary access to this vast repository of international financial data, however carefully targeted use of it may be, is a matter of public interest. It's the public interest defense."

    What do you think?

    SCHOENFLED: Well The Times is unilaterally deciding that it's in the public interest. But of course, the government in waging this counterterrorism warfare, does have the right to keep secrets and to protect those secrets.

    And that's why I believe in particular, in the NSA case, not so much in the Swift banking case, that the government should act against not only the leakers but those who publish the leaks — in this case, The Times.

    GIGOT: All right, in Britain, they have something called the Official Secrets Act, which specifically — Secrets Act, which specifically bars publication. We don't have that here. We have something called the First Amendment.

    And in the Pentagon Papers Case of 20, 30 years ago, the Supreme Court expressly said the prohibition on publication should be very, very rare. Why are these cases different than that Pentagon Papers’s episode?

    SCHOENFLED: Well, in the Pentagon Papers case, the Nixon administration was trying to get prior restraint on The Times to not publish a story in advance.

    The court ruled that was — could only be done under really grave circumstances, like you could not report about where troops were moving or ships were moving. And the Pentagon Papers's documents were all historical in nature.

    The NSA wiretapping story concerns an ongoing counterterrorism operation. And what's more, I'm not advocating "prior restraint" in that case, I think that the government would be entitled to prosecute The Times after the fact for publishing that information.