This morning, the federal court in Alexandria, Virginia rejected a challenge to the constitutionality of the Espionage Act, which permits prosecution of anyone who knowingly publishes classified intelligence information. The challenge was brought by two lobbyists for AIPAC (The American Israel Public Affairs Committee) who received classified information from a Department of Defense analyst during the Clinton administration and who subsequently republished that information to others.
The ruling should make the editors and publishers of the New York Times extremely nervous. As I noted in testimony before the House Permanent Select Committee on Intelligence this past May, the New York times can be prosecuted under other provisions of the Espionage Act for its publication last December of our highly-classified and operationally-sensitive NSA surveillance program. Copy of my testimony is available here (registration required for download).
Im looking forward to the New York Times front page tommorrow, wherein they will expose exactly how US authorities picked up the chatter on the latest planned atrocity and passed it on to the British intelligence services. Hopefully well get an informative page 1 sidebar complete with names, photographs, addresses, and family portraits of every undercover agent and informant involved along with the blueprints to their houses and maps of their neighbourhoods. Maybe pics of where their kids go to school, too! I have a right to know! Bush and Rove cant hide this from me - this is a matter of intense public interest!
That the NYT can be prosecuted regretfully in no way means a prosecution will occur. I have seen prosecutorial discretion (aka failure to enforce evenhandedly) firsthand and remain cynically dubious.