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Above the law?

Legal scholars and commentators are asking if the New York Times violated U.S. espionage laws

Issue: "No way out," May 13, 2006

Presidents are not above the law, and the legal travails of Presidents Clinton and Nixon prove that on a bipartisan basis.

But are newspapers elevated above the ordinary duties of a citizen or corporation in the United States?

In an extraordinary series of statements, New York Times editor Bill Keller is implicitly making a public case for such an exalted position. Mr. Keller has repeatedly defended his paper's decision to publish late last year articles on the highly secret National Security Agency program to intercept communications from al-Qaeda abroad to its agents/contacts in the United States. The Bush administration urged the paper not to publish the leaked material, arguing that to do so would alert terrorists to the program's existence. The paper delayed but ultimately published the story.

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Now legal scholars and commentators are asking if the Times violated U.S. espionage laws. Gabriel Schoenfeld in Commentary and Scott Johnson for The Weekly Standard have both shown that publication of such hyper-sensitive secrets is a crime. Mr. Schoenfeld has put the question squarely: "The laws governing what the Times has done are perfectly clear; will they be enforced?"

Mr. Keller has responded to the debate by blaming the White House. He complained, in an e-mail published by MediaBistro, "Some officials in this administration, and their more vociferous cheerleaders, seem to have a special animus towards reporters doing their jobs. There's sometimes a vindictive tone in the way they talk about dragging reporters before grand juries and in the hints that reporters who look too hard into the public's business risk being branded traitors. I don't know how far action will follow rhetoric, but some days it sounds like the administration is declaring war at home on the values they profess to be promoting abroad."

Mr. Keller needs to answer questions in the open about the privileges he claims for his paper. Does he really believe his newspaper can publish national security secrets regardless of the espionage laws? Did his lawyers warn him that no such privilege against prosecution exists? Might major media aid terrorists without suffering legal repercussions?

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