Espionage by any other name

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This week in the New Yorker magazine Seymour Hersh wrote the following words: “The administration has been conducting secret reconnaissance missions inside Iran … Much of the focus is on accumulation of intelligence and targeting information on Iranian nuclear, chemical and missile sites … [The] American commando task force has been set up in South Asia and is now working closely with a group of Pakistani scientists and technicians who had dealt with Iranian counterparts … The American task force … has been penetrating eastern Iran from Afghanistan in a hunt for underground installations … The task force members, or their locally recruited agents, secreted remote detection devices.”

18 United States Code section 794, subsection (b) prohibits anyone “in time of war, with intent that the same shall be communicated to the enemy [from publishing] any information with respect to the movement, numbers, or disposition of any of the Armed Forces … of the United States… or supposed plans or conduct of any … military operations … or any other information relating to the public defense, which might be useful to the enemy … [this crime is punishable] by death or by imprisonment for any term of years or for life.”

Subsection (a) of that statute prohibits anyone “with … reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates … to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life.”

I am not an expert on these federal code sections, but a common-sense reading of their language would suggest, at the least, that federal prosecutors should review the information disclosed by Mr. Hersh to determine whether or not his conduct falls within the proscribed conduct of the statute.

In the fairly recent past, at least one journalist writing for Jane’s Publications has been successfully prosecuted under the statute, freedom of speech and the press not being a defense to espionage. Remember, in the famous Pentagon Papers case, the issue was prior restraint. Could the government stop a newspaper from publishing government secrets relating not to current operations, but to prior planning? The answer then was no. But in the current matter of Mr. Hersh and the New Yorker, they have been free to publish the article. The question is whether or not any legal consequences attach to that decision.

I was shocked when I read Mr. Hersh’s article. Note the tenses he uses to describe American military action: “The American commando task force … is now working,” “has been conducting secret reconnaissance.” In other words, Mr. Hersh is revealing to all the world, including the Iranian government, that our commandos are currently behind enemy lines in Iran on a dangerous and vital military assignment.

Moreover, he helps the enemy by writing that our commandos have been “penetrating eastern Iran from Afghanistan.” That considerably reduces the areas the Iranian military and counterintelligence forces have to search and monitor to try to catch our brave commandos.

Furthermore, Mr. Hersh informs the world that our commandos are working with certain Pakistani scientists who had previously worked with Iranian scientists. Such information might further assist the Iranian security forces in their investigations. After all, there can’t be that many Iranian nuclear scientists who worked with the few Pakistani nuclear scientists in the past. Mr. Hersh has virtually given Iranian intelligence the names (if not the addresses) of the Pakistani scientists who are working with our forces from their jumping-off places in Pakistan.

Finally Mr. Hersh helpfully writes that our commandos have been working with local Iranian agents to plant detection devices around known or suspected nuclear plants. This gives the enemy insights into our commandos’ specific method of operation and alerts Iranian intelligence to be looking for local Iranians as well as Americans.

Not a bad day’s work for yet another patriotic American journalist.

Almost as appalling as the potentially lethal effect (if not, necessarily, the intent) of the Hersh article, is the quietude that greeted the damaging implications of the article’s publication.

Whether or not the article meets the technical legal requirements for violation of the Espionage Act, I have seen no articles or public comments expressing concern at the revelation of such vital military secrets of an ongoing secret military operation. Keep in mind, the Pentagon has not denied the story; it has merely said that some of the facts are inaccurate.

That is a classic Washington non-denial denial.

And this is not just any military operation. The purpose of this operation is to protect the world from a possible nuclear attack once the fanatical Iranian Islamist regime gets its hands on a nuclear bomb. They already have missiles capable of reaching London, Paris, Berlin and Tel Aviv. They are already the world’s leading terrorist-supporting state. And our military’s effort to prepare to deal with this extraordinary danger is exposed to the world — while the operation is ongoing.

But not a peep of concern can be heard. Apparently this is considered just journalistic business as usual. The Washington political class is suffering from a bad case of creeping normalcy. We are getting ever more used to ever more egregious government leaks of military secrets. What’s the big deal? Maybe I am an alarmist. Or maybe we are sleepwalking toward the abyss.

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