Scott Johnson has an extensive analysis of the laws applicable in the NSA surveillance matter. He examines 18 U.S.C. § 798. It is entitled “Disclosure of classified information” and falls under Chapter 37 “ESPIONAGE AND CENSORSHIP.” That the leakers violated the law here is rather obvious and not worthy of much discussion.

Of far more interest is this:

Assuming that the terms of the statute apply to the leaks involved in the NSA story, has the Times itself violated the statute and committed a crime? The answer is clearly affirmative. The statute makes knowing and willful “publication” of the proscribed information a crime. Moreover, under the basic federal aiding and abetting statute — 18 U.S.C. § 2 — in willfully helping the leakers publish their disclosures, the Times is as culpable as they are and punishable as a principal.

My understanding had been that the only people who could be held liable for revealing classified information were those who had a security clearance and had thus promised not to reveal it. I can find no such limitation in the statute, however.

Regardless, though, my understanding was that the Pentagon Papers case had settled this in the NYT’s favor. Johnson disagrees:

Which raises the question: Does the First Amendment afford the Times immunity from criminal liability for its conduct? In New York Times Co. v. United States, 403 U.S. 713 (1971)(“the Pentagon Papers case”), the Supreme Court held that it was presumptively unconstitutional for the government to restrain the publication of classified information. In separate opinions concurring with the order allowing the Times to continue publication of its Pentagon Papers stories, however, a majority of the justices clearly contemplated that the Times could be held responsible for any violation of the law involved in publishing the stories. For a scrupulous consideration of the Pentagon Papers case in this context, see Harvey Silverglate’s Boston Phoenix article: “The Gray Lady in shadow.”

Indeed, in their concurring opinions, Justices Douglas and White cited and discussed 18 U.S.C. § 798 as the prototype of a law that could be enforced against a newspaper following publication of information falling within the ambit of the statute. Justice White noted, for example:

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

Fascinating. My reading of the case had always emphasized the “no prior restraint” rule, to be sure, but I had always presumed that the right to publish the information came without strings.

While the Pentagon Papers case is still good law, however, it is not the last word. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that the First Amendment protected the publication of lawfully obtained information that was itself obtained illegally. The Court held that federal law making it a crime to intercept and disseminate telephone conversations cannot constitutionally be applied to the media when they report on matters of public concern.

Does Bartnicki suggest that the Times is constitutionally immune from prosecution under section 798? I think not; the case is readily distinguishable. The Court’s fundamental factual predicates in Bartnicki are that the media defendants played no part in the underlying illegal conduct and their access to the information was obtained lawfully. In the case of the NSA leaks, however, the disclosures to the Times were themselves illegal; it is the fact that the Times is an “unauthorized person” under section 798 that makes the disclosures to the Times illegal.

I had never heard of Bartnicki previously. Based just on Johnson’s description of it, however, I would think the NYT would be safe. Yes, in receiving illegal leaks, Risen was part and parcel of the crime. However, it is not his crime. He has every right to talk to NSA officials and write stories about what they tell him. Indeed, given that Risen does not hold a security clearance, he would have no real way of knowing what information his sources gave him was even classified.

This may well be moot, anyway, since he and co-blogger John Hinderaker are almost certainly correct in guessing that the Administration would be exceedingly reluctant to bring charges against the most powerful newspaper in the land.