NYT bank story redux: Fitzmas for righties?

To prosecute or not to prosecute? Bryan and I took up the debate in the comments to this post last night. As usual, Moran’s with me:

From a purely practical point of view, making Keller and the Times reporters do the perp walk would cause a constitutional crisis no matter how “legal” the prosecutions would be or how justifiable they would be under the present circumstances. Nearly every media outlet in the country would condemn it and it would certainly set off a Congressional row. It may actually end up being much more trouble than those gentlemen are worth. In fact, the prosecutions may have the opposite effect that Powerline envisions. Just to prove how brave they are, journalists would take it upon themselves perhaps to publish all sorts of classified information, daring the Department of Justice to prosecute them.

Bryan makes a compelling case, though, and he’s probably got the balance of righty opinion on his side. John Hinderaker raises a good point:

Meanwhile, former Defense Intelligence Agency analyst Ronald N. Montaperto pled guilty yesterday to passing classified information to China. He will shortly be sentenced to prison. But the New York Times has repeatedly fed far more vital and more secret information to al Qaeda. We are not at war with China. We are at war with al Qaeda. I understand why Monaperto is going to jail. I do not understand why the dozens of CIA and New York Times employees who have peristently leaked classified information to al Qaeda are, apparently, not going to jail.

Why the distinction between Montaperto and the Times? It can’t be the fact that one was bound by a confidentiality agreement and the other wasn’t. If Montaperto had passed the information to China via a middleman, surely the middleman would be prosecuted regardless of whether he’d signed an agreement himself. It has to turn on intent, i.e., the middleman aims to undermine secret government operations whereas the Times, ahem, merely aims to “increase government transparency” or “promote public debate” or whichever phrase they’ve plucked from their Orwell-to-English thesaurus. Their target audiences are evidence in that regard: the middleman serves one client, an enemy government, whereas the Times serves millions, only a small percentage of which are enemy combatants. Thus is the Times’s treachery sufficiently diluted as to make the passing of sensitive information to terrorists “incidental.”

Here’s the DOJ’s page on 18 U.S.C. 371, the federal conspiracy statute. It is, indeed, all about intent. There are other, better statutes to nail the Times with, though, argues Gabriel Schoenfeld in today’s Daily Standard — and what’s more, they’re constitutional:

Given the uproar a prosecution of the Times would provoke, the attorney general’s cautious approach is certainly understandable. But what might look like a prudent exercise of prosecutorial discretion will, in the face of the Times’s increasingly reckless behavior, send a terrible message. The Comint statute, like numerous other laws on the books limiting speech in such disparate realms as libel, privacy, and commercial activity, is fully compatible with the First Amendment. It was passed to deal with circumstances that are both dangerous and rare; the destruction of the World Trade Center and the continuing efforts by terrorists to strike again have thrust just such circumstances upon us.

If the Justice Department chooses not to prosecute the Times, its inaction will turn this statute into a dead letter. At stake here for Attorney General Gonzales to contemplate is not just the right to defend ourselves from another Pearl Harbor. Can it really be the government’s position that, in the middle of a war in which we have been attacked on our own soil, the power to classify or declassify vital secrets should be taken away from elected officials acting in accord with laws set by Congress and bestowed on a private institution accountable to no one?

SWIFT itself has posted a statement about the Times’s expose on its website. Money graf:

SWIFT negotiated with the U.S. Treasury over the scope and oversight of the subpoenas. Through this process, SWIFT received significant protections and assurances as to the purpose, confidentiality, oversight and control of the limited sets of data produced under the subpoenas. Independent audit controls provide additional assurance that these protections are fully complied with.

All of these actions have been undertaken with advice from international and U.S. legal counsel and following our longstanding procedures on compliance, established by our Board.

Bryan thinks I’m crazy for believing that a boycott of the paper’s advertisers is either possible or would do much damage. Perhaps. But the anger among right-wing pols and pundits is pushing ten and holding steady. If Patterico’s angry enough to unsubscribe to his chief source of content, what will other Americans be willing to do?

I’ll leave you with Heather MacDonald ratcheting up the outrage at the Weekly Standard and Victor Comras’s insightful post on Counterterrorism Blog ratcheting it right back down.

Update: Bryan cited Ace‘s point about blackmail during our comments debate and now Powerline’s linked it too, so I’ll reproduce it here:

I’m quite sure the reasonable liberals at the NYT and WaPo know full well that programs like this are absolutely vital, and their secrecy is likewise vital. However, they have made the most anti-American and evil sort of decision: While tools like this are vital for saving American lives, they will not permit any Republican President to use them. Only Democratic Presidents are permitted to employ the full panoply of powers for protecting American lives.

It’s blackmail, pure and simple. Either let a Democrat into the White House, or we will continue to sabotage American security and, in effect, kill Americans. We will keep secrets when a Democrat is in office, but not a Republican. So we offer the American people a choice: Let the politicians we favor run the country, or we will help Al Qaeda murder you.

This is one of those things you’re expected to nod along with to prove the depth of your conservative outrage, but ascribing murderous intent and dark quasi-conspiratorial motives to them is a bridge too far for me. Ace thinks they’re willing to treat American lives as pawns, to calculated effect for the most cynical political gain; I think they published the story in good faith according to the insane belief system they’ve followed for five years: namely, that George Bush is a greater threat to America than Islamic fundamentalism, and therefore job one for the press is interfering with any perceived expansion of his power no matter what the collateral damage might be. It’s not that they’re cavalier about Americans being killed (after all, Risen and Lichtblau held their original NSA story for more than a year after Bush requested that they not publish it), it’s just that ultimately they’re willing to take the risk in order to expose the machinery of Bush’s impending fascist theocracy.

Besides, if their first goal is getting Democrats elected, why blow the whistle on a legal and effective counterterror measure which both Democratic and Republican officials are quoted in the article as defending? It won’t make them any friends among independents and it’s got conservatives angrier than they’ve been in months. Rove should use it to full effect in the midterms, too, now that it’s public. Highlight the success of the program, emphasize how Republican executive power is keeping us safe. Run campaign ads quoting the parts of the article describing how they used SWIFT to catch Hambali. The Times should have, and probably did, anticipate the backlash — in which case, where’s the blackmail?