Has the New York Times Violated the Espionage Act?

"Bush Lets U.S. Spy on Callers Without Courts." Thus ran the headline of a front-page news story whose repercussions have roiled American politics ever since its publication last December 16 in the New York Times. The article, signed by James Risen and Eric Lichtblau, was adapted from Risen’s then-forthcoming book, State of War.1 In it, the Times reported that shortly after September 11, 2001, President Bush had "authorized the National Security Agency [NSA] to eavesdrop on Americans and others inside the United States . . . without the court-approved warrants ordinarily required for domestic spying."

So far, so good, but everything after that, becomes an argument in favor of the prosecution of the Times for letting the cat out of the bag. The author tries to make a case for it by citing the Espionage Act of 1917, as well as similar cases in history. He also points to alleged successes resulting from the spying. The whole trouble with his argument, is that it's based on the Presidents' authorisation of the NSAs' spying operation, being legal. If the President did not have the legal authority to initiate the spying, then it's no crime to reveal a crime. The President has said that his authorisation from Congress to go to war in Afganistan, is what gave him the right, but nothing in it gave him the right to bypass existing law (ie; FISA) to spy at home. He says he'll use every tool at his disposal to fight the terrorists, but if the "tools" are illegal, and not his tools to use, then he's authorized the commission of a crime.

The author points out that certain members of Congress were briefed and continually updated throughout the operation, and thus argues that if it were illegal, they would've put a stop to it. I say that's bullshit, because no one has yet pointed to any specific statute that would make it legal. And even with certain members of Congress knowing about it, and not stopping it, it still does not automatically mean that it's legal. It's no mystery that the President cannot act alone. The Executive branch cannot run this country on its' own, and everything Bush has managed to do so far, has been with the complicity of his fellow party members, and weak-willed Democrates. Their "going along" with his actions, in no way magically transforms everything he does into becoming legal. The government has to operate within the bounderies of law, and if there's no legal authority for it to take a certain action, then it's committing an illegal act. It makes no difference whether the action was successful or not.

So before they start trying to shot the messenger, they'd better first show they have a legal leg to stand on.