So a consensus forms around the notion that the New York Times should not be prosecuted, that its editors and reporters who willfully delivered sensitive wartime data to our enemies and thereby in all likelihood destroyed a vital anti-terror tool, should skate. At the most, the reporters should be squeezed until they cough up the identity of those who leaked the information to them. The focus, says the consensus, should be on prosecuting the leakers. Boycott the Times by all means, so the thinking goes, but stay off that slippery slope of prosecuting members of the press who may have committed actual crimes.

Letting reporters get away with crimes done in the name of their profession is a slippery slope of its own, but few seem to have thought of that. Michelle notes a case of Times reporters aiding terrorists even more directly than this SWIFT story, for instance. Why should they face the possibility of prosecution in that case, but not this one? Aid is aid.

I’m sympathetic to going after the leaker, but here’s a nagging thought few seem to have considered: The leaker or leakers may not be government officials. They may not even be in this country. The leaker may not be an American citizen. If any of that is the case, finding them does…nothing. Or the next best thing to nothing.

Why does everyone assume that the leaker is a government official, and an American on American soil? From the LA Times story, we learn:

The program was initially a closely guarded secret, but it has recently become known to a wider circle of government officials, former officials, banking executives and outside experts.

There’s a lot of leak potential in that expanding circle of people in the know.

The original NYTimes story includes US government officials’ descriptions of SWIFT’s assistance, its legality and its effectiveness in combating terrorists. Those would have been obtained after finding out about the program itself, of course. The stories note that an outside auditing firm was involved (Booz Allen Hamilton), raising the possibility that the leak came from there and not from the government. The stories note that SWIFT executives had become concerned about the program a time or two, raising the possibility that one or more of them were never brought back to an acceptable comfort level and decided to let off some steam in James Risen’s ear. But the original stories don’t say with any specificity who tipped the Times to the existence of the program in the first place, putting Risen and Lichtblau on the trail. Perhaps a European did a job an American had not done, and picked up the phone in his Brussels corner office and rang up the fellow known for blowing the lid off that NSA anti-terror program.

Consider, SWIFT is a Belgian outfit. Headquartered in Brussels, it is a major clearinghouse for financial transactions worldwide. Belgium isn’t exactly the most pro-American country in Europe these days. Do you suppose it’s possible that one Belgian who worked with SWIFT and was aware of its cooperation with us might ring up the Times with a big scoop? Is it possible that one rogue Belgian or Frenchman or whatever who was in the loop and has an anti-American chip on his shoulder decided it might be fun to kick the Americans and their cowboy president in the groin?

I think it’s very possible. And if this turns out to be the case, what then?

Supposing a single leaker is ever found and he turns out to be a European, histrionic European leaders will laud the rogue as a hero. The ACLU will build a statue of him in Berkeley. The left will fete him as their champion because he stuck it to George Bush. He won’t face prosecution in Europe and he’ll be beyond the reach of us. So he’ll skate.

And since we all fear that slippery slope of prosecuting journalists for committing crimes in the course of their work, so will everyone at the Times.

If I’m right or even half right, no one will be held to account for this leak. Its source will either be someone outside US jurisdiction or will be multiple sources inside and outside government, a target so diffuse it will probably be impossible to nab any one of them. The House resolution condemning the leak doesn’t even name any of the papers that ran the story, they’re so nervous about being seen as bashing the media too much. Is there any chance such a spineless government will prosecute anyone connected to this leak? We’re looking at open season on classified material if things go the way I now expect.

When the Times publishes details that effectively make the stealth bomber obsolete, and when it starts publishing actual operational maps depicting detailed troop movements in Iraq and gets pilots shot down and Marines ambushed and killed, perhaps then we’ll all learn that journalists aren’t above the law and should be held accountable before it. But it’s clear to me that we won’t learn that lesson until an awful lot more people in and out of uniform have to die.

What a stupid, stupid country we have become.

Tags: New York