Q&A With Congress: Should NYT Reporters Go to Jail?

This week I asked members of Congress if New York Times Editor Bill Keller and his reporters should be jailed—as former New York Times reporter Judith Miller was in the Valerie Plame investigation—if they refuse to name the sources who disclosed the secret U.S. program aimed at tracking al Qaeda’s financial transactions.

Do you think Bill Keller and his reporters should be jailed like Judith Miller unless they [reveal their sources]?

Sen. Kit Bond (R.-Mo.): … I think that we ought to find out who their sources are, because whoever leaked them is guilty of a felony, and this felony is compounded by the publication, which has now made our country significantly less safe.

You had said this applies the theory of Darwinism to terrorists. Can you explain that?

Bond: Yeah. Michael Hayden, who was the head of the NSA program and is now director of our CIA, came before our committee to testify in his confirmation hearings. I asked him, “What has been the impact of all these disclosures?” And that was before the terrorist financing [story], [and after the reporting of the] terrorist surveillance program. … He said: “We are applying the Darwinian theory,” you know, survival of the fittest? The Darwinian theory says we are not going to get very smart terrorists now because the only terrorists we are going to be able to capture are the dumb terrorists who don’t pay attention to what’s been on the television, on the website, learning about all of the ways in which we track their activity.

So this ups the stakes?

Bond: Oh, yes. We may catch some dumb terrorists, but the smart terrorists say, “Oh, well, they can listen in on these calls, so we’ll call from a different phone.” And now they know most of how we track the money, so they will find other flows. So that means that the vitally, vitally, vitally important programs that we’ve had have now been blown.

Do you think New York Times Editor Bill Keller and his reporters should be jailed like Judith Miller unless they disclose the names? Is that your position?

Sen. John Cornyn (R.-Tex.): That goes to the reporter shield law which we are debating right now. I think everyone understands reporters should not be called to testify by lazy prosecutors who could get information from other sources, but I also personally believe that reporters are subject to the same laws I am subject to and if they are the sole source of information that would allow a prosecutor to prosecute the crimes, then under some circumstances they would have to cooperate.

Do you think this is a more significant issue than the leaking of a CIA agent’s name? Judith Miller went to jail over this, so is this bigger or smaller?

Cornyn: She went to jail over contempt of the court, but I do see selective outrage over the leaking of classified information and clearly the partisan allegations that remain and have been made against Karl Rove, and obviously Scooter Libby is standing trial for allegedly … committing perjury, but what we ought to do is look at whether our laws are being violated and a violation of those laws makes us less safe. I think they do, and we have to have hearings to find whether laws apply to all of the people or some of the people.

Should New York Times Editor Bill Keller and his reporters go to jail, like Judith Miller did, if they don’t disclose their sources for the al Qaeda financial surveillance program?

Sen. Lindsey Graham (R.-S.C.): I think the New York Times made a serious mistake in judgment. Whether or not that constitutes a crime is for people in the Executive Branch to look at and the idea of releasing the existence of this program did nothing to make us free. It actually hurt our ability to be safe.

Do you see any difference in the way that this is being handled and the way that the leaking of Valerie Plame’s name was?

Graham: You had an existing statute that was the subject of the debate about a CIA operative. Here’s a point for the New York Times to absorb: Have they, through revealing this program, done an injustice to the war on terror? If you think Valerie Plame was done an injustice, how can you feel comfortable with the idea that no injustice was done here. The accusation is that it compromises an individual, because releasing would compromise their safety. Well, I would argue that releasing this program compromises the safety of the country as a whole and the fact that there’s no outrage about that is very much a double standard.

Do you think that Bill Keller and his reporters should be jailed in the way that Judith Miller was for not disclosing their sources?

Sen. Harry Reid (D.-Nev.): I do not. I think we should look at the leaker, not the newspaper. Why don’t we look at the leaker? Go after the leaker, leave the press alone.

Could you speak about the difference between this and the leaking of a CIA agent’s name? Do you think it’s a bigger issue that we are getting secrets leaked about al Qaeda’s financial dealings?

Reid: I can’t weigh the leaking. I don’t know what is worse. When you leak classified information it is a crime so they are all level as far as I am concerned.

Do you think New York Times Editor Bill Keller and his reporter should be jailed like Judith Miller was unless they disclose the sources for their financial surveillance of al Qaeda?

House Minority Leader Nancy Pelosi (D.-Calif.): Do I think they should be jailed? No. …

Just by comparison, was … leaking Valerie Plame’s name more important than that? Can you talk about that?

Pelosi: I think disclosure of a clandestine agent of the CIA is very important. I think the SWIFT revelation was important as well. But I think we have to have some congressional oversight. I, for a long time, have been concerned about how the administration and the Republicans in Congress have tried to close the opportunity for information that is important for the American people to have. For example, they would put the burden of proof on the individual rather than on the government to prove that it was harmful to our national security. That is the wrong balance, in my view.

Do you think New York Times Editor Bill Keller and his reporters should be jailed like Judith Miller was?

Senate Intelligence Chairman Pat Roberts (R.-Kan.): No.

Do you see any way in which the leaking of the identity of a CIA agent is different? It seems that leaking of al Qaeda’s information is more significant—

Roberts: Well, I think it is more significant than the Valerie Plame case, and if you want to know what I think about the Valerie Plame case or Ambassador Joe Wilson, just read our report on the WMD inquiry and I speak to that.

I don’t want to go down that road again, but yes, this is very significant. But the whole point is: Congress passed a law under the Clinton Administration increasing the penalties for those who signed non-disclosure statements or those members of Congress who are cleared and let into classified programs and then willfully, intentionally leaked that information to the press. It passed the House and the Senate and was vetoed by the President. It caused a big debate and I’m not sure we need to have that debate again, but I do think throughout major journalism schools and the major media need to talk about this because I am worried about the freedom of the press.

We get into these kinds of controversies and people immediately jump to a conclusion, let’s prosecute a newspaper, or a reporter. That’s a tail chasing the dog. It will go to court and I’m not sure that any practical purpose is served by it. On the other side, if you talk to a great many people, they take great umbrage in the media with no accountability trying to determine what is classified and what is not and basically, in Washington, nothing is classified.

Human Events Intern Patrick McNamara: Do you think that New York Times Editor Bill Keller and his reporters should go to jail the way Judith Miller did for not revealing the source of the leak in the banking records story?

Sen. Ron Wyden (D.-Ore.): I think all of these discussions are very premature. I don’t have any sense that the country is going to get the debate that is really needed, and that is to examine the role of the press in a thoughtful way in a time when we’re at war. That’s what’s needed and all these resolutions and the like aren’t, I think, going to get us that debate.