WASHINGTON, June 22 – Under a secret Bush administration program initiated
weeks after the Sept. 11 attacks, counterterrorism officials have gained
access to financial records from a vast international database and examined
banking transactions involving thousands of Americans and others in the
United States, according to government and industry officials.
The program is limited, government officials say, to tracing transactions of
people suspected of ties to Al Qaeda by reviewing records from the nerve
center of the global banking industry, a Belgian cooperative that routes
about $6 trillion daily between banks, brokerages, stock exchanges and other
institutions. The records mostly involve wire transfers and other methods of
moving money overseas or into and out of the United States. Most routine
financial transactions confined to this country are not in the database.
Viewed by the Bush administration as a vital tool, the program has played a
hidden role in domestic and foreign terrorism investigations since 2001 and
helped in the capture of the most wanted Qaeda figure in Southeast Asia, the
officials said. The program, run out of the Central Intelligence Agency and
overseen by the Treasury Department, “has provided us with a unique and
powerful window into the operations of terrorist networks and is, without
doubt, a legal and proper use of our authorities,” Stuart Levey, an
undersecretary at the Treasury Department, said in an interview Thursday.
The program is grounded in part on the president’s emergency economic
powers, Mr. Levey said, and multiple safeguards have been imposed to protect against any unwarranted searches of Americans’ records.
The program, however, is a significant departure from typical practice in
how the government acquires Americans’ financial records. Treasury officials
did not seek individual court-approved warrants or subpoenas to examine
specific transactions, instead relying on broad administrative subpoenas for
millions of records from the cooperative, known as Swift.
That access to large amounts of sensitive data was highly unusual, several
officials said, and stirred concerns inside the administration about legal
and privacy issues.
“The capability here is awesome or, depending on where you’re sitting,
troubling,” said one former senior counterterrorism official who considers
the program valuable. While tight controls are in place, the official added,
“The potential for abuse is enormous.”
The program is separate from the National Security Agency’s efforts to
eavesdrop without warrants and collect domestic phone records, operations
that have provoked fierce public debate and spurred lawsuits against the
government and telecommunications companies. But all the programs grew out
of the Bush administration’s desire to exploit technological tools to
prevent another terrorist strike, and all reflect attempts to break down
longstanding legal or institutional barriers to the government’s access to
private information about Americans and others inside the United States.
Officials described the Swift program as the biggest and most far-reaching
of several secret efforts to trace terrorist financing. Much more limited
agreements with other companies have provided access to A.T.M. transactions,
credit card purchases and Western Union wire payments, the officials said.
Nearly 20 current and former government officials and industry executives
discussed aspects of the Swift operation with The New York Times on
condition of anonymity because the program remains classified. Some of those
officials expressed reservations about the program, saying that what they
viewed as an urgent, temporary measure had become permanent nearly five
years later without specific Congressional approval or formal authorization.
Data from the Brussels-based banking consortium, formally known as the
Society for Worldwide Interbank Financial Telecommunication, has allowed
officials from the C.I.A., the Federal Bureau of Investigation and other
agencies to examine “tens of thousands” of financial transactions, Mr. Levey
said.
While many of those transactions have occurred entirely on foreign soil,
officials have also been keenly interested in international transfers of
money by individuals, businesses, charities and other organizations under
suspicion inside the United States, officials said. A small fraction of
Swift’s records involve transactions entirely within this country, but
Treasury officials said they were uncertain whether any had been examined.
Swift executives have been uneasy at times about their secret role, the
government and industry officials said. By 2003, the executives told
American officials they were considering pulling out of the arrangement,
which began as an emergency response to the Sept. 11 attacks, the officials
said. Worried about potential legal liability, the Swift executives agreed
to continue providing the data only after top officials, including Alan
Greenspan, then chairman of the Federal Reserve, intervened. At the same
time, new controls were introduced.
Among the program’s safeguards, government officials said, is an outside
auditing firm that verifies that the data searches are based on a link to
terrorism intelligence. Swift and Treasury officials said they were aware of
no abuses. But Mr. Levey, the Treasury official, said one person had been
removed from the operation for conducting a search considered inappropriate.
“We are not on a fishing expedition,” Mr. Levey said. “We’re not just
turning on a vacuum cleaner and sucking in all the information that we can.”
Treasury officials said Swift was exempt from American laws restricting
government access to private financial records because the cooperative was
considered a messaging service, not a bank or financial institution.
But at the outset of the operation, Treasury and Justice Department lawyers
debated whether the program had to comply with such laws before concluding
that it did not, people with knowledge of the debate said. Several outside
banking experts, however, say that financial privacy laws are murky and
sometimes contradictory and that the program raises difficult legal and
public policy questions.
The Bush administration has made no secret of its campaign to disrupt
terrorist financing, and President Bush, Treasury officials and others have
spoken publicly about those efforts. Administration officials, however,
asked The New York Times not to publish this article, saying that disclosure
of the Swift program could jeopardize its effectiveness. They also enlisted
several current and former officials, both Democrat and Republican, to vouch
for its value.
Bill Keller, the newspaper’s executive editor, said: “We have listened
closely to the administration’s arguments for withholding this information,
and given them the most serious and respectful consideration. 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.”
Swift declined to discuss details of the program but defended its role in
written responses to questions. “Swift has fully complied with all
applicable laws,” the consortium said. The organization said it insisted
that the data be used only for terrorism investigations and had narrowed the
scope of the information provided to American officials over time.
A Crucial Gatekeeper
Swift’s database provides a rich hunting ground for government
investigators. Swift is a crucial gatekeeper, providing electronic
instructions on how to transfer money between 7,800 financial institutions
worldwide. The cooperative is owned by more than 2,200 organizations, and
virtually every major commercial bank, as well as brokerage houses, fund
managers and stock exchanges, uses its services. Swift routes more than 11
million transactions each day, most of them across borders.
The cooperative’s message traffic allows investigators, for example, to
track money from the Saudi bank account of a suspected terrorist to a mosque
in New York. Using intelligence tips about specific targets, agents search
the database in what one official described as a “24-7” operation.
Customers’ names, bank account numbers and other identifying information,
can be retrieved, the officials said.
The data does not allow the government to track routine financial activity,
like A.T.M. withdrawals, confined to this country, or to see bank balances,
Treasury officials said. And the information is not provided in real time –
Swift generally turns it over several weeks later. Because of privacy
concerns and the potential for abuse, the government sought the data only
for terrorism investigations and prohibited its use for tax fraud, drug
trafficking or other inquiries, the officials said.
The Treasury Department was charged by President Bush, in a September 2001
executive order, with taking the lead role in efforts to disrupt terrorist
financing. Mr. Bush has been briefed on the program and Vice President Dick
Cheney has attended C.I.A. demonstrations, the officials said. The National
Security Agency has provided some technical assistance.
While the banking program is a closely held secret, administration officials
have conducted classified briefings to some members of Congress and the
Sept. 11 Commission, the officials said. More lawmakers were briefed in
recent weeks, after the administration learned The Times was making
inquiries for this article. Swift’s 25-member board of directors, made up of
representatives from financial institutions around the world, was previously
told of the program, but it is not clear if other participants know that
American intelligence officials can examine their message traffic.
Because Swift is based overseas and has offices in the United States, it is
governed both by European and American laws. Several international
regulations and policies impose privacy restrictions on companies that are
generally regarded as more stringent than those in this country. United
States law establishes some protections for the privacy of Americans’
financial data, but they are not ironclad. A 1978 measure, the Right to
Financial Privacy Act, has a limited scope and a number of exceptions, and
its role in national security cases remains largely untested.
Several people familiar with the Swift program said they believed they were
exploiting a “gray area” in the law and that a case could be made for
restricting the government’s access to the records on Fourth Amendment and
statutory grounds. They also worried about the impact on Swift if the
program were disclosed.
“There was always concern about this program,” a former official said.
One person involved in the Swift program estimated that analysts have
reviewed international transfers involving “many thousands” of people or
groups in the United States. Two other officials also placed the figure in
the thousands. Mr. Levey said he could not estimate the number.
The Swift data has provided clues to terror money trails and ties between
possible terrorists and organizations financing them, the officials said. In
some instances, they said, the program has pointed them to new suspects,
while in others it has buttressed cases already under investigation.
Among the successes was the capture of a Qaeda operative, Riduan Isamuddin,
better known as Hambali, believed to be the mastermind of the 2002 bombing
of a Bali resort, several officials said. The Swift data identified a
previously unknown figure in Southeast Asia who had financial dealings with
a person suspected of being a member of Al Qaeda; that link helped locate
Hambali in Thailand in 2003, they said.
In the United States, the program has provided financial data in
investigations into possible domestic terrorist cells as well as inquiries
of Islamic charities with suspected of having links to extremists, the
officials said.
The data also helped identify a Brooklyn man who was convicted on
terrorism-related charges last year, the officials said. The man, Uzair
Paracha, who worked at a New York import business, aided a Qaeda operative
in Pakistan by agreeing to launder $200,000 through a Karachi bank,
prosecutors said.
In terrorism prosecutions, intelligence officials have been careful to
“sanitize,” or hide the origins of evidence collected through the program to
keep it secret, officials said.
The Bush administration has pursued steps that may provide some enhanced
legal standing for the Swift program. In late 2004, Congress authorized the
Treasury Department to develop regulations requiring American banks to turn
over records of international wire transfers. Officials say a preliminary
version of those rules may be ready soon. One official described the
regulations as an attempt to “formalize” access to the kind of information
secretly provided by Swift, though other officials said the initiative was
unrelated to the program.
The Scramble for New Tools
Like other counterterrorism measures carried out by the Bush administration,
the Swift program began in the hectic days after the Sept. 11 attacks, as
officials scrambled to identify new tools to head off further strikes.
One priority was to cut off the flow of money to Al Qaeda. The Sept. 11
hijackers had helped finance their plot by moving money through banks. Nine
of the hijackers, for instance, funneled money from Europe and the Middle
East to SunTrust bank accounts in Florida. Some of the $130,000 they
received was wired by people overseas with known links to Al Qaeda.
Financial company executives, many of whom had lost friends at the World
Trade Center, were eager to help federal officials trace terrorist money.
“They saw 9/11 not just as an attack on the United States, but on the
financial industry as a whole,” said one former government official.
Quietly, counterterrorism officials sought to expand the information they
were getting from financial institutions. Treasury officials, for instance,
spoke with credit card companies about devising an alert if someone tried to
buy fertilizer and timing devices that could be used for a bomb, but they
were told the idea was not logistically possible, a lawyer in the
discussions said.
The F.B.I. began acquiring financial records from Western Union and its
parent company, First Data Corporation. The programs were alluded to in
Congressional testimony by the F.B.I. in 2003 and described in more detail
in a book released this week, “The One Percent Doctrine,” by Ron Suskind.
Using what officials described as individual, narrowly framed subpoenas and
warrants, the F.B.I. has obtained records from First Data, which processes
credit and debit card transactions, to track financial activity and try to
locate suspects.
Similar subpoenas for the Western Union data allowed the F.B.I. to trace
wire transfers, mainly outside the United States, and to help Israel trace
the financing of about a half-dozen possible terrorist plots there, an
official said.
The idea for the Swift program, several officials recalled, grew out of a
suggestion by a Wall Street executive, who told a senior Bush administration
official about Swift’s database. Few government officials knew much about
the consortium, which is led by a Brooklyn native, Leonard H. Schrank, but
they quickly discovered it offered unparalleled access to international
transactions.
Swift, a former government official said, was “the mother lode, the Rosetta
stone” for financial data.
Intelligence officials were so eager to exploit the Swift data that they
discussed having the C.I.A. covertly gain access to the system, several
officials involved in the talks said. But Treasury officials resisted, the
officials said, and favored going to Swift directly.
At the same time, lawyers in the Treasury Department and the Justice
Department were considering possible legal obstacles to the arrangement, the
officials said.
In 1976, the Supreme Court ruled that Americans had no constitutional right
to privacy for their records held by banks or other financial institutions.
In response, Congress passed the Right to Financial Privacy Act two years
later, restricting government access to Americans’ banking records. In
considering the Swift program, some government lawyers were particularly
concerned about whether the law prohibited officials from gaining access to
records without a warrant or subpoena based on some level of suspicion about
each target.
For many years, law enforcement officials have relied on grand-jury
subpoenas or court-approved warrants for such financial data. Since the
Sept. 11 attacks, the F.B.I. has turned more frequently to an administrative
subpoena, known as a national security letter, to demand such records.
After an initial debate, Treasury Department lawyers, consulting with the
Justice Department, concluded that the privacy laws applied to banks, not to
a banking cooperative like Swift. They also said the law protected
individual customers and small companies, not the major institutions that
route money through Swift on behalf of their customers.
Other state, federal and international regulations place different and
sometimes conflicting restrictions on the government’s access to financial
records. Some put greater burdens on the company disclosing the information
than on the government officials demanding it.
Among their considerations, American officials saw Swift as a willing
partner in the operation. But Swift said its participation was never
voluntary. “Swift has made clear that it could provide data only in response
to a valid subpoena,” according to its written statement.
Indeed, the cooperative’s executives voiced early concerns about legal and
corporate liability, officials said, and the Treasury Department’s Office of
Foreign Asset Control began issuing broad subpoenas for the cooperative’s
records related to terrorism. One official said the subpoenas were intended
to give Swift some legal protection.
Underlying the government’s legal analysis was the International Emergency
Economic Powers Act, which Mr. Bush invoked after the Sept. 11 attacks. The
law gives the president what legal experts say is broad authority to
“investigate, regulate or prohibit” foreign transactions in responding to
“an unusual and extraordinary threat.”
But L. Richard Fischer, a Washington lawyer who wrote a book on banking
privacy and is regarded as a leading expert in the field, said he was
troubled that the Treasury Department would use broad subpoenas to demand
large volumes of financial records for analysis. Such a program, he said,
appears to do an end run around bank-privacy laws that generally require the
government to show that the records of a particular person or group are
relevant to an investigation.
“There has to be some due process,” Mr. Fischer said. “At an absolute
minimum, it strikes me as inappropriate.”
Several former officials said they had lingering concerns about the legal
underpinnings of the Swift operation. The program “arguably complies with
the letter of the law, if not the spirit,” one official said.
Another official said: “This was creative stuff. Nothing was clear cut,
because we had never gone after information this way before.”
Treasury officials would not say whether a formal legal opinion was prepared
in authorizing the program, but they said they considered the government’s
authority to subpoena the Swift records to be clear. “People do not have a
privacy interest in their international wire transactions,” Mr. Levey, the
Treasury under secretary, said.
Tighter Controls Sought
Within weeks of the Sept. 11 attacks, Swift began turning over records that
allowed American analysts to look for evidence of terrorist financing.
Initially, there appear to have been few formal limits on the searches.
“At first, they got everything – the entire Swift database,” one person
close to the operation said.
Intelligence officials paid particular attention to transfers to or from
Saudi Arabia and the United Arab Emirates because most of the Sept. 11
hijackers were from those countries.
The volume of data, particularly at the outset, was often overwhelming,
officials said. “We were turning on every spigot we could find and seeing
what water would come out,” one former administration official said.
“Sometimes there were hits, but a lot of times there weren’t.”
Officials realized the potential for abuse, and soon narrowed the program’s
targets and put in more safeguards. Among them were the auditing firm, an
electronic record of every search and a form documenting the intelligence
that justified each data search. Mr. Levey said the program was used only to
search the records of individuals or entities, not for broader data
searches.
Despite the controls, Swift executives became increasingly worried about
their secret involvement with the American government, the officials said.
By 2003, the cooperative’s officials were discussing pulling out because of
their concerns about legal and financial risks if the program were revealed,
one government official said.
“How long can this go on?” a Swift executive asked, according to the
official.
Even some American officials began to question the open-ended arrangement.
“I thought there was a limited shelf life and that this was going to go
away,” the former senior official said.
In 2003, administration officials asked Swift executives and some board
members to come to Washington. They met with Mr. Greenspan, Robert S.
Mueller III, the F.B.I. director, and Treasury officials, among others, in
what one official described as “a full-court press.”
The executives agreed to continue supplying records after the Americans
pledged to impose tighter controls. Swift representatives would be stationed
alongside intelligence officials and could block any searches considered
inappropriate, several officials said. The procedural change provoked some
opposition at the C.I.A. because “the agency was chomping at the bit to have
unfettered access to the information,” a senior counterterrorism official
said. But the Treasury Department saw it as a necessary compromise, the
official said, to “save the program.”
http://www.commentarymagazine.com/article.asp?aid=12103025_1
Has the New York Times Violated the Espionage Act?
Gabriel Schoenfeld
“Bush Lets U.S. Spy on Callers Without Courts.”? Thus ran the headline of a front-page news story whose repercussions have roiled American politics ever since its publication last December 16 in the New York Times. The article, signed by James Risen and Eric Lichtblau, was adapted from Risen’s then-forthcoming book, State of War.1 In it, the Times reported that shortly after September 11, 2001, President Bush had “authorized the National Security Agency [NSA] to eavesdrop on Americans and others inside the United States . . . without the court-approved warrants ordinarily required for domestic spying.”?
Not since Richard Nixon’s misuse of the CIA and the IRS in Watergate, perhaps not since Abraham Lincoln suspended the writ of habeas corpus, have civil libertarians so hugely cried alarm at a supposed law-breaking action of government. People for the American Way, the Left-liberal interest group, has called the NSA wiretapping “arguably the most egregious undermining of our civil liberties in a generation.”? The American Civil Liberties Union has blasted Bush for “violat[ing] our Constitution and our fundamental freedoms.”?
Leading Democratic politicians, denouncing the Bush administration in the most extreme terms, have spoken darkly of a constitutional crisis. Former Vice President Al Gore has accused the Bush White House of “breaking the law repeatedly and insistently”? and has called for a special counsel to investigate. Senator Barbara Boxer of California has solicited letters from four legal scholars inquiring whether the NSA program amounts to high crimes and misdemeanors, the constitutional standard for removal from office. John Conyers of Michigan, the ranking Democrat on the House Judiciary Committee, has demanded the creation of a select panel to investigate “those offenses which appear to rise to the level of impeachment.”?
The President, for his part, has not only stood firm, insisting on both the legality and the absolute necessity of his actions, but has condemned the disclosure of the NSA surveillance program as a “shameful act.”? In doing so, he has implicitly raised a question that the Times and the President’s foes have conspicuously sought to ignore—namely, what is, and what should be, the relationship of news-gathering media to government secrets in the life-and-death area of national security. Under the protections provided by the First Amendment of the Constitution, do journalists have the right to publish whatever they can ferret out? Such is certainly today’s working assumption, and it underlies today’s practice. But is it based on an informed reading of the Constitution and the relevant statutes? If the President is right, does the December 16 story in the Times constitute not just a shameful act, but a crime?
II
Ever since 9/11, U.S. intelligence and law-enforcement authorities have bent every effort to prevent our being taken once again by surprise. An essential component of that effort, the interception of al-Qaeda electronic communications around the world, has been conducted by the NSA, the government arm responsible for signals intelligence. The particular NSA program now under dispute, which the Times itself has characterized as the U.S. government’s “most closely guarded secret,”? was set in motion by executive order of the President shortly after the attacks of September 11. Just as the Times has reported, it was designed to track and listen in on a large volume of calls and e-mails without applying for warrants to the Foreign Intelligence Security Act (FISA) courts, whose procedures the administration deemed too cumbersome and slow to be effective in the age of cell phones, calling cards, and other rapidly evolving forms of terrorist telecommunication.
Beyond this, all is controversy. According to the critics, many of whom base themselves on a much-cited study by the officially nonpartisan Congressional Research Service, Congress has never granted the President the authority to bypass the 1978 FISA Act and conduct such surveillance. In doing so, they charge, the Bush administration has flagrantly overstepped the law, being guilty, in the words of the New Republic, of a “bald abuse of executive power.”?
Defenders answer in kind. On more than twelve occasions, as the administration itself has pointed out, leaders of Congress from both parties have been given regularly scheduled, classified briefings about the NSA program. In addition, the program has been subject to internal executive-branch review every 45 days, and cannot continue without explicit presidential reauthorization (which as of January had been granted more than 30 times). Calling it a “domestic surveillance program”? is, moreover, a misnomer: the communications being swept up are international in nature, confined to those calls or e-mails one terminus of which is abroad and at one terminus of which is believed to be an al-Qaeda operative.
Defenders further maintain that, contrary to the Congressional Research Service, the law itself is on the President’s side.2 In addition to the broad wartime powers granted to the executive in the Constitution, Congress, immediately after September 11, empowered the President “to take action to deter and prevent acts of international terrorism against the United States.”? It then supplemented this by authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.”? The NSA surveillance program is said to fall under these specified powers.3
The debate over the legality of what the President did remains unresolved, and is a matter about which legal minds will no doubt continue to disagree, largely along partisan lines. What about the legality of what the Times did?
III
Although it has gone almost entirely undiscussed, the issue of leaking vital government secrets in wartime remains of exceptional relevance to this entire controversy, as it does to our very security. There is a rich history here that can help shed light on the present situation.
One of the most pertinent precedents is a newspaper story that appeared in the Chicago Tribune on June 7, 1942, immediately following the American victory in the battle of Midway in World War II. In a front-page article under the headline, “Navy Had Word of Jap Plan to Strike at Sea,”? the Tribune disclosed that the strength and disposition of the Japanese fleet had been “well known in American naval circles several days before the battle began.”? The paper then presented an exact description of the imperial armada, complete with the names of specific Japanese ships and the larger assemblies of vessels to which they were deployed. All of this information was attributed to “reliable sources in . . . naval intelligence.”?
The inescapable conclusion to be drawn from the Tribune article was that the United States had broken Japanese naval codes and was reading the enemy’s encrypted communications. Indeed, cracking JN-25, as it was called, had been one of the major Allied triumphs of the Pacific war, laying bare the operational plans of the Japanese Navy almost in real time and bearing fruit not only at Midway—a great turning point of the war—but in immediately previous confrontations, and promising significant advantages in the terrible struggles that still lay ahead. Its exposure, a devastating breach of security, thus threatened to extend the war indefinitely and cost the lives of thousands of American servicemen.
An uproar ensued in those quarters in Washington that were privy to the highly sensitive nature of the leak. The War Department and the Justice Department raised the question of criminal proceedings against the Tribune under the Espionage Act of 1917. By August 1942, prosecutors brought the paper before a federal grand jury. But fearful of alerting the Japanese, and running up against an early version of what would come to be known as graymail, the government balked at providing jurors with yet more highly secret information that would be necessary to demonstrate the damage done.
Thus, in the end, the Tribune managed to escape criminal prosecution. For their part, the Japanese either never got wind of the story circulating in the United States or were so convinced that their naval codes were unbreakable that they dismissed its significance. In any case, they left them unaltered, and their naval communications continued to be read by U.S. and British cryptographers until the end of the war.4
If the government’s attempt to employ the provisions of the 1917 Espionage Act in the heat of World War II failed, another effort three decades later was no more successful. This was the move by the Nixon White House to prosecute Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers, which foundered on the rocks of the administration’s gross misconduct in investigating the offense. The administration also petitioned the Supreme Court to stop the New York Times from publishing Ellsberg’s leaked documents, in order to prevent “grave and irreparable danger”? to the public interest; but it did not even mention the Espionage Act in this connection, presumably because that statute does not allow for the kind of injunctive relief it was seeking.
Things took a different turn a decade later with an obscure case known as United States of America v. Samuel Loring Morison. From 1974 to 1984, Morison, a grandson of the eminent historian Samuel Eliot Morison, had been employed as a part-time civilian analyst at the Naval Intelligence Support Center in Maryland. With the permission of his superiors, he also worked part-time as an editor of Jane’s Fighting Ships, the annual reference work that is the standard in its field. In 1984, dissatisfaction with his government position led Morison to pursue full-time employment with Jane’s.
In the course of his job-seeking, Morison had passed along three classified photos, filched from a colleague’s desk, which showed a Soviet nuclear-powered aircraft carrier under construction. They had been taken by the KH-11 satellite system, whose electro-optical digital-imaging capabilities were the first of their kind and a guarded military secret. The photographs, which eventually appeared in Jane’s Defence Weekly, another publication in the Jane’s family, were traced back to Morison. Charged with violations of the Espionage Act, he was tried, convicted, and sentenced to a two-year prison term.5
Finally, and bearing on issues of secrecy from another direction, there is a case wending its way through the judicial process at this very moment. It involves the American Israel Public Affairs Committee (AIPAC), which lobbies Congress and the executive branch on matters related to Israel, the Middle East, and U.S. foreign policy. In the course of these lobbying activities, two AIPAC officials, Steven J. Rosen and Keith Weissman, allegedly received classified information from a Defense Department analyst by the name of Lawrence Franklin. They then allegedly passed on this information to an Israeli diplomat, and also to members of the press.
Both men are scheduled to go on trial in April for violations of the Espionage Act. The indictment, which names them as part of a “conspiracy,”? asserts that they used “their contacts within the U.S. government and elsewhere to gather sensitive U.S. government information, including classified information relating to national defense, for subsequent unlawful communication, delivery, and transmission to persons not entitled to receive it.”? As for Franklin, who admitted to his own violations of the Espionage Act and was promised leniency for cooperating in an FBI sting operation against Rosen and Weissman, he was sentenced this January to twelve-and-a-half years in prison, half of the maximum 25-year penalty.6
IV
Despite their disparate natures and outcomes, each of these cases bears on the NSA wiretapping story. In attempting to bring charges against the Chicago Tribune, both Frances Biddle, FDR’s wartime attorney general, and other responsible officials were operating under the well-founded principle that newspapers do not carry a shield that automatically allows them to publish whatever they wish. In particular, the press can and should be held to account for publishing military secrets in wartime.
In the case of the Tribune there was no indictment, let alone a conviction; in the Pentagon Papers case, the prosecution was botched. But Morison was seen all the way through to conviction, and the conviction was affirmed at every level up to the Supreme Court (which upheld the verdict of the lower courts by declining to hear the case). It would thus seem exceptionally relevant to the current situation.
In appealing his conviction, Morison argued along lines similar to those a newspaper reporter might embrace—namely, that the Espionage Act did not apply to him because he was neither engaged in “classic spying and espionage activity”? nor transmitting “national-security secrets to agents of foreign governments with intent to injure the United States.”? In rejecting both of these contentions, the appeals court noted that the law applied to “whoever”? transmits national-defense information to “a person not entitled to receive it.”? The Espionage Act, the court made clear, is not limited to spies or agents of a foreign government, and contains no exemption “in favor of one who leaks to the press.”?
But if the implication of Morison seems straightforward enough, it is also clouded by the fact that Morison’s status was so peculiar: was he convicted as a miscreant government employee (which he was) or, as he maintained in his own defense, an overly zealous journalist? In the view of the courts that heard his case, the answer seemed to be more the former than the latter, leaving unclear the status of a journalist engaged in the same sort of behavior today.
The AIPAC case presents another twist. In crucial respects, the status of the two defendants does resemble that of journalists. Unlike Morison but like James Risen of the New York Times, the AIPAC men were not government employees. They were also involved in a professional activity—attempting to influence the government by means of lobbying—that under normal circumstances enjoys every bit as much constitutional protection as publishing a newspaper. Like freedom of the press, indeed, the right to petition the government is explicitly stipulated in the First Amendment. Yet for allegedly taking possession of classified information and then passing such information along to others, including not only a representative of the Israeli government but also, as the indictment specifies, a “member of the media,”? Rosen and Weissman placed themselves in legal jeopardy.
The AIPAC case thus raises an obvious question. If Rosen and Weissman are now suspended in boiling hot water over alleged violations of the Espionage Act, why should persons at the Times not be treated in the same manner?
To begin with, there can be little argument over whether, in the case of the Times, national-defense material was disclosed in an unauthorized way. The Times’s own reporting makes this plain; the original December 16 article explicitly discusses the highly secret nature of the material, as well as the Times’s own hesitations in publishing it. A year before the story actually made its way into print, the paper (by its own account) told the White House what it had uncovered, was warned about the sensitivity of the material, and was asked not to publish it. According to Bill Keller, the Times’s executive editor, the administration “argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country’s security.”? Whether because of this warning or for other reasons, the Times withheld publication of the story for a year.7
Nor does James Risen’s State of War hide this aspect of things. To the contrary, one of the book’s selling points, as its subtitle indicates, is that it is presenting a “secret history.”? In his acknowledgements, Risen thanks “the many current and former government officials who cooperated”? with him, adding that they did so “sometimes at great personal risk.”? In an age when government officials are routinely investigated by the FBI for leaking classified information, and routinely charged with a criminal offense if caught in the act, what precisely would that “great personal risk”? entail if not the possibility of prosecution for revealing government secrets?
The real question is therefore not whether secrets were revealed but whether, under the espionage statutes, the elements of a criminal act were in place. This is a murkier matter than one might expect.
Thus, one subsection of the Espionage Act requires that the country be in a state of war, and one might argue that this requirement was not present. Although President Bush and other leading officials speak of a “war on terrorism,”? there has been no formal declaration of war by Congress. Similarly, other subsections demand evidence of a clear intent to injure the United States. Whatever the motives of the editors and reporters of the New York Times, it would be difficult to prove that among them was the prospect of causing such injury.
True, several sections of the Act rest on neither a state of war nor on intent to injure, instead specifying a lower threshold: to be found guilty, one must have acted “willfully.”? Yet this key term is itself ambiguous—”one of the law’s chameleons,”? as it has been called. Does it mean merely acting with awareness? Or does it signify a measure of criminal purposiveness? In light of these and other areas of vagueness in the statutes, it is hardly surprising that, over the decades, successful prosecution of the recipients and purveyors of leaked secret government information has been as rare as leaks of such information have been abundant.
V
But that does not end the matter. Writing in 1973, in the aftermath of the Pentagon Papers muddle, two liberal-minded law professors, Harold Edgar and Benno C. Schmidt, Jr., undertook an extensive study of the espionage statutes with the aim of determining the precise degree to which “constitutional principles limit official power to prevent or punish public disclosure of national-defense secrets.”?8 Their goal proved elusive. The First Amendment, Edgar and Schmidt found, despite providing “restraints against grossly sweeping prohibitions”? on the press, did not deprive Congress of the power to pass qualifying legislation “reconciling the conflict between basic values of speech and security.”? Indeed, the Espionage Act of 1917 was just such a piece of law-making, and Edgar and Schmidt devote many pages to reviewing the discussion that led up to its passage.
What they show is a kind of schizophrenia. On the one hand, a “series of legislative debates, amendments, and conferences”? preceding the Act’s passage can “fairly be read as excluding criminal sanctions for well-meaning publication of information no matter what damage to the national security might ensue and regardless of whether the publisher knew its publication would be damaging”? (emphasis added). On the other hand, whatever the “apparent thrust”? of this legislative history, the statutes themselves retain plain meanings that cannot be readily explained away. The “language of the statute,”? the authors concede, “has to be bent somewhat to exclude publishing national-defense material from its [criminal] reach, and tortured to exclude from criminal sanction preparatory conduct necessarily involved in almost every conceivable publication”? of military secrets.
Thus, in the Pentagon Papers case, four members of the Court—Justices White, Stewart, Blackmun, and Chief Justice Burger—suggested that the statutes can impose criminal sanctions on newspapers for retaining or publishing defense secrets. Although finding these pronouncements “most regrettable,”? a kind of “loaded gun pointed at newspapers and reporters,”? Edgar and Schmidt are nevertheless compelled to admit that, in this case as in many others in modern times, the intent of the espionage statutes is indisputable:
If these statutes mean what they seem to say and are constitutional, public speech in this country since World War II has been rife with criminality. The source who leaks defense information to the press commits an offense; the reporter who holds onto defense material commits an offense; and the retired official who uses defense material in his memoirs commits an offense.
For Edgar and Schmidt, the only refuge from this (to them) dire conclusion is that Congress did not understand the relevant sections of the Espionage Act “to have these effects when they were passed, or when the problem of publication of defense information was considered on other occasions.”?
Edgar and Schmidt may or may not be right about Congress’s incomprehension. But even if they are right, would that mean that newspapers can indeed publish whatever they want whenever they want, secret or not, without fear of criminal sanction?
Hardly. For in 1950, as Edgar and Schmidt also note, in the wake of a series of cold-war espionage cases, and with the Chicago Tribune episode still fresh in its mind, Congress added a very clear provision to the U.S. Criminal Code dealing specifically with “communications intelligence”?—exactly the area reported on by the Times and James Risen. Here is the section in full, with emphasis added to those words and passages applicable to the conduct of the New York Times:
§798. Disclosure of Classified Information.
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
(b) As used in this subsection (a) of this section—
The term “classified information”? means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;
The terms “code,”? “cipher,”? and “cryptographic system”? include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;
The term “foreign government”? includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;
The term “communication intelligence”? means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;
The term “unauthorized person”? means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.
Not only is this provision completely unambiguous, but Edgar and Schmidt call it a “model of precise draftsmanship.”? As they state, “the use of the term “˜publishes’ makes clear that the prohibition is intended to bar public speech,”? which clearly includes writing about secrets in a newspaper. Nor is a motive required in order to obtain a conviction: “violation [of the statute] occurs on knowing engagement of the proscribed conduct, without any additional requirement that the violator be animated by anti-American or pro-foreign motives.”? The section also does not contain any requirement that the U.S. be at war.
One of the more extraordinary features of Section 798 is that it was drawn with the very purpose of protecting the vigorous public discussion of national-defense material. In 1946, a joint committee investigating the attack on Pearl Harbor had urged a blanket prohibition on the publication of government secrets. But Congress resisted, choosing instead to carve out an exception in the special case of cryptographic intelligence, which it described as a category “both vital and vulnerable to an almost unique degree.”?
With the bill narrowly tailored in this way, and “with concern for public speech having thus been respected”? (in the words of Edgar and Schmidt), Section 798 not only passed in Congress but, perhaps astonishingly in hindsight, won the support of the American Society of Newspaper Editors. At the time, the leading editors of the New York Times were active members of that society.
VI
If prosecuted, or threatened with prosecution, under Section 798, today’s New York Times would undoubtedly seek to exploit the statute’s only significant loophole. This revolves around the issue of whether the information being disclosed was improperly classified as secret. In all of the extensive debate about the NSA program, no one has yet convincingly made such a charge.
The Times would also undoubtedly seek to create an additional loophole. It might assert that, unlike in the Chicago Tribune case or in Morison, the disclosure at issue is of an illegal governmental activity, in this case warrantless wiretapping, and that in publishing the NSA story the paper was fulfilling a central aspect of its public-service mission by providing a channel for whistleblowers in government to right a wrong. In this, it would assert, it was every bit as much within its rights as when newspapers disclosed the illegal “secret”? participation of the CIA in Watergate.
But this argument, too, is unlikely to gain much traction in court. As we have already seen, congressional leaders of both parties have been regularly briefed about the program. Whether or not legal objections to the NSA surveillance ever arose in those briefings, the mere fact that Congress has been kept informed shows that, whatever legitimate objections there might be to the program, this is not a case, like Watergate, of the executive branch running amok. Mere allegations of illegality do not, in our system of democratic rule, create any sort of terra firma—let alone a presumption that one is, in turn, entitled to break the law.
As for whistleblowers unhappy with one or another government program, they have other avenues at their disposal than splashing secrets across the front page of the New York Times. The Intelligence Community Whistleblower Protection Act of 1998 shields employees from retribution if they wish to set out evidence of wrongdoing. When classified information is at stake, the complaints must be leveled in camera, to authorized officials, like the inspectors general of the agencies in question, or to members of congressional intelligence committees, or both. Neither the New York Times nor any other newspaper or television station is listed as an authorized channel for airing such complaints.
Current and former officials who choose to bypass the provisions of the Whistleblower Protection Act and to reveal classified information directly to the press are unequivocally lawbreakers. This is not in dispute. What Section 798 of the Espionage Act makes plain is that the same can be said about the press itself when, eager to obtain classified information however it can, and willing to promise anonymity to leakers, it proceeds to publish the government’s communications-intelligence secrets for all the world to read.
VII
If the Times were indeed to run afoul of a law once endorsed by the American Society of Newspaper Editors, it would point to a striking role reversal in the area of national security and the press.
Back in 1942, the Chicago Tribune was owned and operated by Colonel Robert R. McCormick. In the 1930’s, as Hitler plunged Europe into crisis, his paper, pursuing the isolationist line of the America First movement, tirelessly editorialized against Franklin Roosevelt’s “reckless”? efforts to entangle the U.S. in a European war. Once war came, the Tribune no less tirelessly criticized Roosevelt’s conduct of it, lambasting the administration for incompetence and much else.
In its campaign against the Roosevelt administration, one of the Tribune’s major themes was the evils of censorship; the paper’s editorial page regularly defended its publication of secrets as in line with its duty to keep the American people well informed. On the very day before Pearl Harbor, it published an account of classified U.S. plans for fighting in Europe that came close to eliciting an indictment.9 The subsequent disclosure of our success in breaking the Japanese codes was thus by no means a singular or accidental mishap but an integral element in an ideological war that called for pressing against the limits.
During World War II, when the Chicago Tribune was recklessly endangering the nation by publishing the most closely guarded cryptographic secrets, the New York Times was by contrast a model of wartime rectitude. It is inconceivable that in, say, June 1944, our leading newspaper would have carried a (hypothetical) dispatch beginning: “A vast Allied invasion force is poised to cross the English Channel and launch an invasion of Europe, with the beaches of Normandy being the point at which it will land.”?
In recent years, however, under very different circumstances, the Times has indeed reversed roles, embracing a quasi-isolationist stance. If it has not inveighed directly against the war on terrorism, its editorial page has opposed almost every measure taken by the Bush administration in waging that war, from the Patriot Act to military tribunals for terrorist suspects to the CIA renditions of al-Qaeda operatives to the effort to depose Saddam Hussein. “Mr. Bush and his attorney general,”? says the Times, have “put in place a strategy for a domestic anti-terror war that [has] all the hallmarks of the administration’s normal method of doing business: a Nixonian obsession with secrecy, disrespect for civil liberties, and inept management.”? Of the renditions, the paper has argued that they “make the United States the partner of some of the world’s most repressive regimes”?; constitute “outsourcing torture”?; and can be defended only on the basis of “the sort of thinking that led to the horrible abuses at prisons in Iraq.”? The Times’s opposition to the Patriot Act has been even more heated: the bill is “unconstitutionally vague”?; “a tempting bit of election-year politics”?; “a rushed checklist of increased police powers, many of dubious value”?; replete with provisions that “trample on civil liberties”?; and plain old “bad law.”?
In pursuing its reflexive hostility toward the Bush administration, the Times, like the Chicago Tribune before it, has become an unceasing opponent of secrecy laws, editorializing against them consistently and publishing government secrets at its own discretion. So far, there has been only a single exception to this pattern. It merits a digression, both because it is revealing of the Times’s priorities and because it illustrates how slender is the legal limb onto which the newspaper has climbed.
The exception has to do with Valerie Plame Wilson. The wife of a prominent critic of the administration’s decision to go to war in Iraq, Plame is a CIA officer who, despite her ostensible undercover status, was identified as such in July 2003 by the press. That disclosure led to a criminal investigation, in the course of which the Times reporter Judith Miller was found in contempt of court and jailed for refusing to reveal the names of government officials with whom she had discussed Plame’s CIA status. In the end, Miller told what she knew to the special prosecutor, leading him to indict I. Lewis “Scooter”? Libby, an aide to Vice President Cheney, for allegedly lying under oath about his role in the outing of Plame.
The Times has led the pack in deploring Libby’s alleged leak, calling it “an egregious abuse of power”? equivalent to “the disclosure of troop movements in wartime,”? and blowing it up into a kind of conspiracy on the part of the Bush administration to undercut critics of the war. That its hysteria over the leak of Plame’s CIA status sits oddly with its own habit of regularly pursuing and publishing government secrets is something the paper affects not to notice. But if the Plame case reveals a hypocritical or partisan side to the Times’s concern for governmental secrecy, it also shows that neither the First Amendment nor any statute passed by Congress confers a shield allowing journalists to step outside the law.
The courts that sent Judith Miller to prison for refusing to reveal her sources explicitly cited the holding in Branzburg v. Hayes (1972), a critical case in the realm of press freedom. In Branzburg, which involved not government secrets but narcotics, the Supreme Court ruled that “it would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on . . . the reporter to violate valid criminal laws,”? and that “neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.”?
The Plame affair extends the logic of Branzburg, showing that a journalist can be held in contempt of court when the unauthorized disclosure of intelligence-related information is at stake.10 Making this episode even more relevant is the fact that the classified information at issue—about which Judith Miller gathered notes but never published a single word, hence doing no damage herself to the public interest—is of trivial significance in comparison with disclosure of the NSA surveillance program, which tracks the surreptitious activities of al-Qaeda operatives in the U.S. and hence involves the security of the nation and the lives of its citizens. If journalists lack immunity in a matter as narrow as Plame, they also presumably lack it for their role in perpetrating a much broader and deadlier breach of law.
“Unauthorized disclosures can be extraordinarily harmful to the United States national-security interests and . . . far too many such disclosures occur,”? said President Clinton on one occasion, adding that they “damage our intelligence relationships abroad, compromise intelligence gathering, jeopardize lives, and increase the threat of terrorism.”? To be sure, even as he uttered these words, Clinton was in the process of vetoing a bill that tightened laws against leaking secrets. But, his habitual triangulating aside, he was right and remains right. In recent years a string of such devastating leaks has occurred, of which the NSA disclosure is at the top of the list.
By means of that disclosure, the New York Times has tipped off al Qaeda, our declared mortal enemy, that we have been listening to every one of its communications that we have been able to locate, and have succeeded in doing so even as its operatives switch from line to line or location to location. Of course, the Times disputes that its publication has caused any damage to national security. In a statement on the paper’s website, Bill Keller asserts complacently that “we satisfied ourselves that we could write about this program . . . in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record.”? In his book, James Risen goes even further, ridiculing the notion that the NSA wiretapping “is critical to the global war on terrorism.”? Government officials, he writes, “have not explained why any terrorist would be so naïve as to assume that his electronic communication was impossible to intercept.”?
But there are numerous examples of terrorists assuming precisely that. Prior to September 11, Osama bin Laden regularly communicated with top aides using satellite telephones whose signals were being soaked up by NSA collection systems. After a critical leak in 1998, these conversations immediately ceased, closing a crucial window into the activities of al Qaeda in the period running up to September 11.
Even after September 11, according to Risen and Eric Lichtblau in their December story, terrorists continued to blab on open lines. Thus, they wrote, NSA eavesdropping helped uncover a 2003 plot by Iyman Faris, a terrorist operative, who was apprehended and sentenced to 20 years in prison for providing material support and resources to al Qaeda and conspiring to supply it with information about possible U.S. targets. Another plot to blow up British pubs and subways stations using fertilizer bombs was also exposed in 2004, “in part through the [NSA] program.”? This is the same James Risen who blithely assures us that terrorists are too smart to talk on the telephone.
For its part, the New York Times editorial page remains serenely confident that the problem is not our national security but the overreaching of our own government. Condescending to notice that the “nation’s safety is obviously a most serious issue,”? the paper wants us to focus instead on how “that very fact has caused this administration and many others to use it as a catch-all for any matter it wants to keep secret.”? If these are not the precise words used by Colonel McCormick’s Tribune as it gave away secrets that could have cost untold numbers of American lives, the self-justifying spirit is exactly the same.
We do not know, in our battle with al Qaeda, whether we have reached a turning point like the battle of Midway (whose significance was also not fully evident at the time). Ongoing al-Qaeda strikes in the Middle East, Asia, and Europe suggest that the organization, though wounded, is still a coordinated and potent force. On January 19, after having disappeared from view for more than a year, Osama bin Laden surfaced to deliver one of his periodic threats to the American people, assuring us in an audio recording that further attacks on our homeland are “only a matter of time. They [operations] are in the planning stages, and you will see them in the heart of your land as soon as the planning is complete.”? Bin Laden may be bluffing; but woe betide the government that proceeds on any such assumption.
The 9/11 Commission, in seeking to explain how we fell victim to a surprise assault, pointed to the gap between our foreign and domestic intelligence-collection systems, a gap that over time had grown into a critical vulnerability. Closing that gap, in the wake of September 11, meant intercepting al-Qaeda communications all over the globe. This was the purpose of the NSA program—a program “essential to U.S. national security,”? in the words of Jane Harman, the ranking Democratic member of the House Intelligence Committee—the disclosure of which has now “damaged critical intelligence capabilities.”?
One might go further. 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?
GABRIEL SCHOENFELD is the senior editor of COMMENTARY. His previous articles on intelligence matters in these pages include “Could September 11 Have Been Averted?”? (December 2001), “How Inept is the FBI?”? (May 2002), and “What Became of the CIA”? (March 2005).
1 State of War: The Secret History of the CIA and the Bush Administration. Free Press, 240 pp., $26.00.
2 The non-partisan status of the Congressional Research Service has been called into question in this instance by the fact that the study’s author, Alfred Cumming, donated $1,250 to John Kerry’s presidential campaign, as was reported by the Washington Times.
3 What the U.S. government was doing, furthermore, differed little if at all from what it had done in the past in similar emergencies. “For as long as electronic communications have existed,”? as Attorney General Alberto Gonzalez has pointed out, “the United States has conducted surveillance of [enemy] communications during wartime—all without judicial warrant.”?
4 David Kahn concludes in The Codebreakers (1967) that in part, “the Japanese trusted too much to the reconditeness of their language for communications security, clinging to the myth that no foreigner could ever learn its multiple meanings well enough to understand it properly. In part they could not envision the possibility that their codes might be read.”?
5 In January 2001, a decade-and-a-half after his release, and following a campaign on his behalf by Senator Daniel Patrick Moynihan, Morison was granted a full pardon by President Bill Clinton on his final day in office.
6 If Franklin continues to cooperate with the authorities, his sentence will be reviewed and probably reduced after the trial of Rosen and Weissman.
7 According to Jon Friedman’s online Media Web, the Times’s publisher, Arthur Sulzberger, Jr., also met with President Bush before the NSA story was published.
8 “The Espionage Statutes and Publication of Defense Information,”? Columbia Law Review, Vol. 73., No. 5., May 1973.
9 If the Japanese were not paying close attention to American newspapers, the Germans were. Within days of Pearl Harbor, Hitler declared war on the United States, indirectly citing as a casus belli the American war plans revealed in the Tribune.
10 Whether Plame was in fact a secret agent—according to USA Today, she has worked at CIA headquarters in Langley, Virginia since 1997—remains an issue that is likely to be explored fully if the Libby case proceeds to trial.