INDICTMENT AGAINST THE NEW YORK TIMES
"Bank Data is Sifted by U.S. in Secret to Block Terror"
By ERIC LICHTBLAU and JAMES RISEN
Published: June 23, 2006
“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 New York Times
The New York Times has done it again!
This time it has blown the cover of a secret undercover operation aimed at the financial heart of al Qaeda.
Not long ago, I wrote an article entitled “Indict The New York Times. In it, I asserted that “[i]t is an article of faith on the Left and among its fellow travelers that the Bush administration stole two elections, made war on Iraq for venal reasons, tortured hapless foreigners, and conducted illegal surveillance of innocent Americans. A corollary of this mindset is that the press, primarily the Washington Post and The New York Times, has a right, indeed a duty, to print whatever they want about the administration—even if the information compromises national security. Not true. The press is not exempt from laws that apply to everyone else. The press is not exempt from laws protecting our national security. The New York Times is not exempt from the Espionage Act . . . .” (Nor, by the way, is that newspaper exempt from the crime of treason.)
My article was triggered by the newspaper’s December 2005 revelation that soon after the horrific events of September 11, 2001, President Bush had, in the Times’ own words, “authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying . . . .” (The article—by James Risen and Eric Lichtblau—was followed by publication of a book by Risen elaborating on the article’s contents.)
This intentional disclosure of a top secret program vital to our nation’s security raised the question later asked by Gabriel Schoenfeld in his superb March 2006 Commentary article entitled “Has the New York Times violated the Espionage Act?” Schoenfeld’s answer—and mine—is a resounding “yes”!
As Schoenfeld said, “[b]y 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. * * * What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism.”
That being so, what has our government done about in the ensuing six months? Sadly, nothing.
The Justice Department’s foot-dragging over the Times’ perfidy is akin to the Nixon Administration’s response to Jane Fonda’s treason in North Vietnam: yet another example of our government ignoring those who betray the United States. (See “Aid and Comfort”: Jane Fonda in North Vietnam, by Henry Mark Holzer and Erika Holzer). Like Fonda, The New York Times and its employees who revealed the NSA program will similarly escape indictment.
But the Times, like Fonda, is indictable—and just as “Aid and Comfort” presented the Fonda indictment that could have been, so, too I offer here a draft indictment against The New York Times and those of its employees, and others, who piously committed one of the worst breaches of national security—perhaps the worst—in modern times.
* * *
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK 1[*]
UNITED STATES OF AMERICA
v. CRIMINAL NO. 06CR______
THE NEW YORK TIMES COMPANY,
BILL KELLER, JAMES RISEN, ERIC LICHTBLAU,
and JOHN AND JANE DOES 1 THROUGH 20,
Defendants.
THE GRAND JURY CHARGES THAT:
INTRODUCTORY ALLEGATIONS
At all times material to this indictment:
1. Defendant The New York Times Company was the publisher of the general circulation newspaper The New York Times.
2. Defendants Keller, Risen, and Lichtblau were agents and/or employees of The New York Times.
3. Defendants John and Jane Does 1 through 20 included among them agents and/or employees of the United States.
4. Defendants John and Jane Does 1 through 20 had a legal duty to act in accordance with law regarding all officially classified information and documents and information relating to the national defense in their possession and/or under their control.
5. Defendants The New York Times Company, Keller, or Lichtblau were not entitled legally to have under their control and/or possess, disclose, and/or communicate officially classified information and documents and information relating to the national defense.
6. At a time or times subsequent to September 11, 2001, the exact time or times being unknown to the grand jurors, defendants John and Jane Does 1 through 20, knowingly and willfully disclosed and communicated to defendants The New York Times Company, Keller, Risen, and Lichtblau, officially classified information and documents and information concerning a National Security Agency communication intelligence surveillance program vital to the United States’ national defense.
7. Defendants The New York Times Company, Keller, Risen, and Lichblau, within the Southern District of New York, knowingly and willfully caused to be published, and published, said classified information and documents and information in The New York Times.
8. None of the defendants John and Jane Does 1 through 20 were legally authorized to disclose or communicate said classified information and documents and information to defendants The New York Times Company, Keller, Risen, or Lichtblau.
9. None of the defendants The New York Times Company, Keller, Risen, or Lichtblau were legally authorized to possess or publish said classified information and documents and information.
10. None of the defendants The New York Times Company, Keller, Risen, or Lichtblau were legally authorized to publish said classified information and documents and information.
COUNT ONE
Treason
(All defendants)
11. The communicating, furnishing, transmitting, and otherwise making available the said classified information and documents and information by defendants John and Jane Does 1 through 20 knowingly and willfully to defendants The New York Times Company, Keller, Risen, and Lichtblau constituted adhering to the enemies of the United States and giving them aid and comfort.
12. The publication of the said classified information and documents and information by The New York Times Company, Keller, Risen, and Lichtblau constituted adhering to the enemies of the United States and giving them aid and comfort.
(In violation of 18 U.S.C. Section 2381.)
COUNT TWO
Disclosure of classified information
(Defendants John and Jane Does 1 through 20)
13. At a time or times subsequent to September 11, 2001, the exact time or times being unknown to the grand jurors, defendants John and Jane Does 1 through 20, or some of them, knowingly and willfully communicated, furnished, transmitted, and otherwise made available classified information concerning the communication intelligence activities of the United States to a person or persons not entitled to receive it, to wit, defendants The New York Times Company, Keller, Risen, and Lichtblau.
(In violation of Title 18, United States Code, Section 798.)
COUNT THREE
Communication of national defense information
(Defendants The New York Times Company, Keller, Risen, and Lichtblau)
14. At a time or times subsequent to September 11, 2001, the exact time or times being unknown to the grand jurors, defendants The New York Times Company, Keller, Risen, and Lichtblau, having unauthorized possession of the aforesaid documents or information relating to the national defense, which documents or information defendants had reason to believe could be used to the injury of the United States, willfully communicated the same to persons not entitled to receive it by publishing said information in The New York Times.
(In violation of Title 18, United States Code, Section 793(d).)
COUNT FOUR
Disclosure of classified information
(Defendants The New York Times Company, Keller, Risen, and Lichtblau)
15. At a time or times subsequent to September 11, 2001, the exact time or times being unknown to the grand jurors, defendants The New York Times Company, Keller, Risen, and Lichtblau published and used in a manner prejudicial to the safety or interest of the United States to its detriment, classified information concerning the communication intelligence activities of the United States.
(In violation of Title 18, United States Code, Section 798.)
COUNT FIVE
Conspiracy to commit treason
(All defendants)
16. Beginning after September 11, 2001 and continuing until December 16, 2006, in the Southern District of New York and elsewhere, all defendants did unlawfully, knowingly and willfully conspire, confederate and agree together and with others, known and unknown to the Grand Jury, to commit the following offense against the United States, to wit: to adhere to its enemies and give them aid and comfort.
17. The defendants’ overt acts in furtherance of their conspiracy consisted of defendants John and Jane Does 1 through 20, knowingly and willfully communicating, furnishing, transmitting, and otherwise making available to defendants The New York Times Company, Keller, Risen, and Lichtblau, classified information and documents and information concerning a National Security Agency communication intelligence surveillance program vital to the United States’ national defense, and further consisted of defendants The New York Times Company, Keller, Risen, and Lichblau, causing to be published, and publishing, said classified information in The New York Times and elsewhere.
(In violation of 18 U.S.C. Section 371.)
COUNT SIX
Conspiracy to communicate national defense information
(All defendants)
18. Beginning after September 11, 2001 and continuing until December 16, 2006, in the Southern District of New York and elsewhere, all defendants did unlawfully, knowingly and willfully conspire, confederate and agree together and with others, known and unknown to the Grand Jury, to commit the following offense against the United States, to wit: to knowingly and willfully communicate, furnish, transmit, and otherwise made available, or use in a manner prejudicial to the safety or interest of the United States to its detriment, national defense information concerning the communication intelligence activities of the United States to a person or persons not entitled to receive it.
19. The defendants’ overt acts in furtherance of their conspiracy consisted of defendants John and Jane Does 1 through 20 willfully communicating to defendants The New York Times Company, Keller, Risen, and Lichtblau, documents and information concerning a National Security Agency communication intelligence surveillance program vital to the United States’ national defense, and further consisted of defendants The New York Times Company, Keller, Risen, and Lichblau, causing to be published, and publishing, said documents and information in The New York Times and elsewhere.
(In violations of 18 U.S.C. Section 371.)
COUNT SEVEN
Conspiracy to disclose classified information
(All defendants)
20. Beginning after September 11, 2001 and continuing until December 16, 2006, in the Southern District of New York and elsewhere, all defendants did unlawfully, knowingly and willfully conspire, confederate and agree together and with others, known and unknown to the Grand Jury, to commit the following offense against the United States, to wit: to knowingly and willfully communicate, furnish, transmit, and otherwise made available, or use in a manner prejudicial to the safety or interest of the United States to its detriment, classified information concerning the communication intelligence activities of the United States to a person or persons not entitled to receive it.
21. The defendants’ overt acts in furtherance of their conspiracy consisted of defendants John and Jane Does 1 through 20 unlawfully disclosing and communicating to defendants The New York Times Company, Keller, Risen, and Lichtblau, classified information concerning a National Security Agency communication intelligence surveillance program vital to the United States’ national defense, and further consisted of defendants The New York Times Company, Keller, Risen, and Lichblau, causing to be published, and publishing, said classified information in The New York Times and elsewhere.
(In violation of 18 U.S.C. Sections 371)
* * *
Schoenfeld concluded his Commentary article by noting that:
[t]he Justice Department has already initiated a criminal investigation into the leak of the NSA program, focusing on which government employee may have broken the law. But the government is contending with hundreds of national-security leaks, and progress is uncertain at best. Thereal 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 have done are perfectly clear; will they be enforced? " (Emphasis added.)
I fear not—unless there is a hue and cry from American patriots loud enough to make President George W. Bush and Attorney General Alberto Gonzales remember the solemn oaths of office they took. Perhaps then those like Jane Fonda and The New York Times, who self righteously wrap themselves in the flag while contributing to the destruction of what it represents, will deservedly have to defend charges under the treason and espionage statutes of the United States of America.
_________
The crimes charged in the indictment were committed in Manhattan, which is located within the jurisdiction of the United States District Court for the Southern District of New York.
