New York Times editor Bill Keller still hasn’t revealed what specific considerations, if any, were weighed in deciding to tip terrorists on U.S. tracking of their financial operations. Nor does he seem to have agonized over the decision. (Hugh Hewitt has the transcript of Keller talking to Charlie Rose, his latest interview on the subject. Counterterrorism Blog reports on the possible consequences of Keller’s decision. Again, thanks to Hugh Hewitt.)

Gabriel Schoenfeld’s second excellent piece on the possible legal acts that could be taken in response to the newspaper’s recent actions. “There can be little doubt,” he writes, “that if the information published by the New York Times on June 23 had been passed to an al Qaeda operative on a microdot, an espionage prosecution would have been immediately launched. Can it really be that publishing the same facts on the front page of a newspaper, and thereby purveying them to all members of al Qaeda at once, is perfectly legal? Bizarre though it may seem, the answer is unclear.”

During World War II, the Chicago Times, which disagreed with FDR’s interventionist foreign policy, reported that the U.S. had cracked the Japanese code, obviously valuable information. The Justice Department was on the verge of prosecuting, but it decided that the Japanese seemed not to have noticed the newspaper’s scoop (you can rest assured that Bin Laden has read the New York Times’ report on international banking).

Schoenfeld writes:

“The case of the New York Times is not entirely dissimilar. Like the isolationist Chicago Tribune, which in opposing the Roosevelt administration’s foreign policy published damaging leaks at every turn, the New York Times has also been determinedly engaged in what amounts to a pattern of illicit behavior. And given the fact that in both its NSA and the terrorist-financing stories the newspaper was warned in advance by ranking executive branch officials, in clud ing (in the NSA?case) the president, that publication would assist al Qaeda and cause injury to national security, proving that the newspaper acted “willfully” to harm the United States might not be quite as difficult as has been generally assumed.

“What is more, the ambiguous nature of the Espionage Act has over the years served us reasonably well. Although there were plenty of egregious leaks throughout the Cold War, there were also limits beyond which the press would not generally step. A kind of gentlemen’s agreement was in place that allowed the imperatives of national security to coexist, however uneasily, with the ambitions of a muckraking media. The 1971 Pentagon Papers case is the most notorious of several exceptions, but in that episode, the secrets in question were of a historical nature; not one of the documents at issue was generated after 1968, and the courts could not discern a legal basis for the prior restraint on the New York Times that the Nixon administration so imprudently requested.”

Whatever the immediate legal ramifications of publishing stories harmful to national security for the newspaper, there is another way to get at the problem:

“Even more important, the leakers inside government of the various classified programs should be investigated and prosecuted. Those who violate their oaths to protect secrets are taking the law into their own hands and putting the rest of us at risk. Far from being admirable ‘whistle-blowers,’ the leakers are, for the most part, rather cowardly. Their insistence on the cloak of anonymity means that they are all too willing to jeopardize the security of their country but unwilling to jeopardize the progress of their careers. As for journalists who rely on leakers for stories, they are at the very least witnesses to a crime.
“The major media outlets have long maintained that reporters should enjoy a special exemption from being called as witnesses before a grand jury, on the grounds that if their promises of anonymity were rendered worthless by testimony given under subpoena, the free flow of information would be impaired. But the Supreme Court has not recognized a journalist’s privilege of that sort, nor should it now. In its 1972 Branzburg holding, the Court declared, “We cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.”

“The leakers in the cases now under dispute are engaged in criminal conduct of a unique sort. It consists of disclosing to journalists matters that these government officials have solemnly promised, of their own free will, not to disclose to anyone. Prosecution of the leakers would obviously address the problem at its root. But uncovering them, when the only witnesses remain silent, has proven extraordinarily difficult. If identification of the leakers entails summoning reporters before a grand jury and compelling them to reveal their sources, we might see a pronounced shift in the journalistic calculus: The prospect of a contempt citation might make reporters think twice, if not about the damage they were doing to national security, then about the prospect of going to prison for a spell of 18 months.

“In the end, just as editors must use discretion about which leaks to publish, prosecutors must use discretion about which ones to prosecute. Stanching the most pernicious of these leaks, and thereby vindicating the rule of law, is the right course in both principle and practice in these perilous times.”

By the way, Lucianne Goldberg posted a cartoon that makes the case against the Times better than any of the arguments I’ve heard.