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A 1950 espionage law prompted by wartime leaks could prove dangerous to journalists who report on covert government programs. From…

A 1950 espionage law prompted by wartime leaks could prove dangerous to journalists who report on covert government programs.

From the Fall 2006 issue of The News Media & The Law, page 8.

By Rani Gupta

A major newspaper was about to publish a scoop about a secret American eavesdropping program. The administration warned against it, saying it would harm national security and could lead to criminal charges. The president spoke to a top official at the newspaper to make his case.

The year was 1986. The paper was The Washington Post. And the story detailed a covert program, code-named Ivy Bells, for underwater surveillance of Soviet submarines.

The incident echoes the situation late last year when The New York Times published a story on the Bush administration’s domestic eavesdropping program.

In the Post’s case, then-CIA director William Casey threatened prosecution under the communications intelligence law, which is not a part of the original Espionage Act of 1917 but a related law passed in 1950.

It is an espionage statute that could prove especially dangerous to journalists, as some have already called for the Bush administration use it to prosecute Times reporters James Risen and Eric Lichtblau for their story on the National Security Agency’s wiretapping program.

The law criminalizes the disclosure or publication of classified communication intelligence information, defined as “all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients.”

It was passed in part because of a 1942 story by a Chicago Tribune war correspondent who obtained a dispatch detailing a Japanese military force on its way to Midway Island.

Navy officials understood the dispatch because they had broken the Japanese fleet’s code. After the U.S. defeated the Japanese at Midway, the Tribune ran a story stating the Navy knew of the planned attack.

Though it didn’t mention code-breaking, the article’s level of detail made it clear the Navy had cracked the Japanese code. A grand jury was impaneled to consider charges under the Espionage Act, but Navy officials didn’t provide evidence they thought might publicize the code-breaking revelation which was still apparently a secret to the Japanese and the grand jury refused to indict.

Threatening journalists

In 1986, Casey reportedly used the communications intelligence statute to warn national security journalist and author Seymour Hersh’s publisher against releasing sensitive information in Hersh’s book about the downing of Korean Airlines Flight 007 over the Soviet Union.

He had done the same thing weeks earlier, when the Post was set to publish a story about an accused spy working in the National Security Agency, Ronald Pelton, who had revealed details of the covert Ivy Bells program to the Soviets.

Despite the fact that the Soviets apparently already knew about the program, Casey warned Post Editor Ben Bradlee that he and others could be prosecuted under the communications intelligence statute if they published the story. President Reagan reiterated that message in a phone call to Chairwoman Katharine Graham.

The Post held the story. Meanwhile, NBC News correspondent James Polk, previewing Pelton’s trial, mentioned Ivy Bells in his broadcast. The Post followed two days later with their story, and Casey formally asked the Justice Department to consider bringing charges against Polk. He was never charged.

Similarly, last year Times Executive Editor Bill Keller and Publisher Arthur Sulzberger Jr. met with President Bush, who warned them that publishing the eavesdropping story would threaten national security. Unlike Casey, the administration doesn’t appear to have threatened the newspaper with an espionage prosecution, according to published accounts of the meeting.

Gabriel Schoenfeld, senior editor of Commentary magazine, said the communications intelligence act should be used to charge Risen and Lichtblau because their story hurt the government’s ability to track al-Qaida.

Schoenfeld believes the communcations intelligence law can be more easily applied to reporters in certain cases than the Espionage Act because that act specifies that violators must have intended to harm the United States or aid a foreign country.

Therefore, he doubts the Espionage Act could be used in the case of the Post story on secret CIA prisons in Europe or the Times story about a program to monitor international bank transactions of people with suspected al-Qaida ties. He also believes the espionage prosecution of two former lobbyists a case experts fear could affect journalists is “misguided.”

By contrast, he said, the communications intelligence section is “completely unambiguous.”

“There are no intent requirements,” Schoenfeld said. “Congress when it passed this really wanted to protect this narrow area of intelligence from these kind of leaks.”

Risen doesn’t think his stories have harmed national security nor, he said, has anyone made a serious case that any story written or broadcast in the past 25 years has done so.

Jeffrey Smith, former general counsel of the CIA, said the media’s exposure of the National Security Agency’s eavesdropping doesn’t compare with revealing the fact that the military has broken enemy codes.

“You could imagine a case where what the reporters or newspapers did is so awful it should be prosecuted,” Smith said, “but I certainly don’t think the leak of the NSA case falls into that category.”