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Jane Harman, the top Democrat on the House Intelligence Committee, says that members of the press who publish classified information during a time of war and aid the enemy should not be prosecuted. At a hearing conducted by the House intelligence Committee into this matter, she declared, “If anyone here wants to imprison journalists, I invite them to spend some time in China, Cuba or North Korea and see whether they feel safer.”

With this comparison of a democratic Republic fighting for its survival against a global terrorist enemy to a communist dictatorship that imprisons people for simply dissenting, Harman, who becomes chairman of the committee if the Democrats take control of the House this fall, has made herself into a media favorite. Her comments were included in a May 27 article in the New York Times by Adam Liptak. But Republicans on the committee, including Peter Hoekstra, the chairman, had a different opinion. Hoekstra and Rep. Rick Renzi suggested that criminal charges against the press for violating the law against disclosing classified information might be advisable.

One of the committee witnesses, Gabriel Schoenfeld, has published a thought-provoking article in Commentary, “Has the New York Times Violated the Espionage Act?,” which argues that “the press can and should be held to account for publishing military secrets in wartime.” He raises the possibility that the Times, which revealed the existence of a classified NSA program to monitor al-Qaeda communications, might cost the lives of U.S. soldiers and prolong the war against al Qaeda.

He explains, “By means of that disclosure, the New York Times has tipped off al Qaeda, our declared mortal enemy, that we have been listening to every one of its communications that we have been able to locate, and have succeeded in doing so even as its operatives switch from line to line or location to location.”

To those who say that there is no law which would enable the prosecution of the press, he cites Section 798 of the Espionage Act, which clearly prohibits the publishing of classified information about the communications secrets of the United States. Schoenfeld notes that this provision of the law was supported at the time by the American Society of Newspaper Editors, and editors of the New York Times were active members of that society.

Today, however, Schoenfeld notes that the Times takes a far different position. The paper seems to be committed to doing whatever it takes to undermine the war on terrorism. “If it has not inveighed directly against the war on terrorism,” notes Schoenfeld, “its editorial page has opposed almost every measure taken by the Bush administration in waging that war, from the Patriot Act to military tribunals for terrorist suspects to the CIA renditions of al-Qaeda operatives to the effort to depose Saddam Hussein.”

Schoenfeld says that the paper exhibits a “reflexive hostility toward the Bush administration” and seems to have a policy of “publishing government secrets at its own discretion.”

He concludes his piece by asking if the U.S. will permit the Times to “become the unelected authority that determines for all of us what is a legitimate secret and what is not.” He adds, “The laws governing what the Times has done are perfectly clear; will they be enforced?”

The ball is in the court of Attorney General Alberto Gonzalez, who has made some noises to the effect that an investigation of the Times may be under way. He said the Justice Department was investigating “what would be the appropriate course of action in that particular case.”

Quit wasting time, Mr. Attorney General. Bring forward the indictments.

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