Can Journalists be Prosecuted for Publishing National Security Secrets?

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.

GABRIEL SCHOENFELD, COMMENTARY MAGAZINE: Thanks for having me.

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.

GIGOT: Under what statutes? Is it the Espionage Act of 1917 or...

SCHOENFLED: No, it's not the Espionage Act of 1917, which is a very, very confusing act and hard to understand. In part, people regard it as incomprehensible.

There's a separate law on the books called Section 798, Title 18, which makes it a crime to publish classified information pertaining to this very narrow area of communications intelligence, which was what was at issue in the NSA wiretapping case.

GIGOT: All right. Now you're a journalist and so am I. And I have to admit to you that I have published on occasion classified information.

And what worries me is that if you — once you start prosecuting journalists, where do you stop? And couldn't this open up a Pandora's Box where a political prosecutor anywhere could go after media they don't like? Where do you draw the line?

SCHOENFLED: There has never been a successful prosecution of journalists in this country for publishing secrets. And I think...

GIGOT: There have been?

SCHOENFLED: There has never been.

GIGOT: There has never been.

SCHOENFLED: There has never been. So obviously, this is some think the law that would be employed only under very rare circumstances. That's right and proper.

However, there are things that the government does have a right to protect. And communications intelligence is one of those. The identities of intelligence agents is another. Nuclear secrets is yet a third.

And here's an area where the press should step back and in the national interest, act as citizens first, not as journalists.

GIGOT: Do you trust prosecutors to show that kind of restraint?

SCHOENFLED: The law — I just trust that the laws here are so narrowly tailored to these very specific areas. The Espionage Act, which is a very broadly written law, should not be employed for prosecutions of this sort because — and it wasn't designed for that purpose in any case.

GIGOT: But you raise this key point, which I think is the restraint of the press. And if you don't want to have an official Secrets Act here, isn't the real answer perhaps instead of unleashing prosecutors, let's have the press show some responsibility, understand that it has enormous power and enormous responsibility.

And therefore, exercise some restraint in refusing to publish some of these stories, which are, as you say, very sensitive. Wouldn't that be a preferable answer?

SCHOENFLED: Well, they — it has been a preferable answer. — Throughout most of the cold war, the press did on most occasions exercise restraint.

I think we're seeing now in this very partisan atmosphere a breakdown of that restraint. The Times, of course, is arguing that it very carefully, you know, tailored the story so not to disclose any sources and methods.

But I think the reaction from people in the know about these programs is that they were severely damaged by The Times' stories.

So with the restraint gone we are left then with only legal recourse of two kinds. One is to prosecute The Times directly. And the other is to call Times reporters before our grand juries to ask them to reveal their sources.

GIGOT: And you bring up the sources. And just very briefly, that is a separate question. And the press has much less legal standing to protect its sources now after the case of Judy Miller and Valerie Plame. The government may go after those sources, correct?

SCHOENFLED: Right. I think — and that's most likely what we'll see in this case. We probably — I very much doubt there will be a prosecution although I think one is justified.

But I think it's much more likely that the reporters at issue in this case, [New York Times reporters] Eric Lichtblau and James Risen, will be brought before a grand jury and asked to reveal who told them the secret information.

GIGOT: All right, Gabriel Schoenfeld, thanks for being here.

Content and Programming Copyright 2006 FOX News Network, Inc. ALL RIGHTS RESERVED. Transcription Copyright 2006 Voxant, Inc. (www.voxant.com), which takes sole responsibility for the accuracy of the transcription. ALL RIGHTS RESERVED. No license is granted to the user of this material except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon FOX News Network, Inc.'s and Voxant Inc.'s copyrights or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.