One of the most pertinent precedents is a newspaper story that appeared in the Chicago Tribune on June 7, 1942, immediately following the American victory in the battle of Midway in World War II. In a front-page article under the headline, “Navy Had Word of Jap Plan to Strike at Sea,” the Tribune disclosed that the strength and disposition of the Japanese fleet had been “well known in American naval circles several days before the battle began.” The paper then presented an exact description of the imperial armada, complete with the names of specific Japanese ships and the larger assemblies of vessels to which they were deployed. All of this information was attributed to “reliable sources in . . . naval intelligence.”

The inescapable conclusion to be drawn from the Tribune article was that the United States had broken Japanese naval codes and was reading the enemy’s encrypted communications. Indeed, cracking JN-25, as it was called, had been one of the major Allied triumphs of the Pacific war, laying bare the operational plans of the Japanese Navy almost in real time and bearing fruit not only at Midway—a great turning point of the war—but in immediately previous confrontations, and promising significant advantages in the terrible struggles that still lay ahead. Its exposure, a devastating breach of security, thus threatened to extend the war indefinitely and cost the lives of thousands of American servicemen.

...If the government’s attempt to employ the provisions of the 1917 Espionage Act in the heat of World War II failed, another effort three decades later was no more successful. This was the move by the Nixon White House to prosecute Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers, which foundered on the rocks of the administration’s gross misconduct in investigating the offense. The administration also petitioned the Supreme Court to stop the New York Times from publishing Ellsberg’s leaked documents, in order to prevent “grave and irreparable danger” to the public interest; but it did not even mention the Espionage Act in this connection, presumably because that statute does not allow for the kind of injunctive relief it was seeking.

Things took a different turn a decade later with an obscure case known as United States of America v. Samuel Loring Morison. From 1974 to 1984, Morison, a grandson of the eminent historian Samuel Eliot Morison, had been employed as a part-time civilian analyst at the Naval Intelligence Support Center in Maryland. With the permission of his superiors, he also worked part-time as an editor of Jane’s Fighting Ships, the annual reference work that is the standard in its field. In 1984, dissatisfaction with his government position led Morison to pursue full-time employment with Jane’s.

In the course of his job-seeking, Morison had passed along three classified photos, filched from a colleague’s desk, which showed a Soviet nuclear-powered aircraft carrier under construction. They had been taken by the KH-11 satellite system, whose electro-optical digital-imaging capabilities were the first of their kind and a guarded military secret. The photographs, which eventually appeared in Jane’s Defence Weekly, another publication in the Jane’s family, were traced back to Morison. Charged with violations of the Espionage Act, he was tried, convicted, and sentenced to a two-year prison term.5

Finally, and bearing on issues of secrecy from another direction, there is a case wending its way through the judicial process at this very moment. It involves the American Israel Public Affairs Committee (AIPAC), which lobbies Congress and the executive branch on matters related to Israel, the Middle East, and U.S. foreign policy. In the course of these lobbying activities, two AIPAC officials, Steven J. Rosen and Keith Weissman, allegedly received classified information from a Defense Department analyst by the name of Lawrence Franklin. They then allegedly passed on this information to an Israeli diplomat, and also to members of the press.

Both men are scheduled to go on trial in April for violations of the Espionage Act. The indictment, which names them as part of a “conspiracy,” asserts that they used “their contacts within the U.S. government and elsewhere to gather sensitive U.S. government information, including classified information relating to national defense, for subsequent unlawful communication, delivery, and transmission to persons not entitled to receive it.” As for Franklin, who admitted to his own violations of the Espionage Act and was promised leniency for cooperating in an FBI sting operation against Rosen and Weissman, he was sentenced this January to twelve-and-a-half years in prison, half of the maximum 25-year penalty.6

Despite their disparate natures and outcomes, each of these cases bears on the NSA wiretapping story. In attempting to bring charges against the Chicago Tribune, both Frances Biddle, FDR’s wartime attorney general, and other responsible officials were operating under the well-founded principle that newspapers do not carry a shield that automatically allows them to publish whatever they wish. In particular, the press can and should be held to account for publishing military secrets in wartime.

In the case of the Tribune there was no indictment, let alone a conviction; in the Pentagon Papers case, the prosecution was botched. But Morison was seen all the way through to conviction, and the conviction was affirmed at every level up to the Supreme Court (which upheld the verdict of the lower courts by declining to hear the case). It would thus seem exceptionally relevant to the current situation.

In appealing his conviction, Morison argued along lines similar to those a newspaper reporter might embrace—namely, that the Espionage Act did not apply to him because he was neither engaged in “classic spying and espionage activity” nor transmitting “national-security secrets to agents of foreign governments with intent to injure the United States.” In rejecting both of these contentions, the appeals court noted that the law applied to “whoever” transmits national-defense information to “a person not entitled to receive it.” The Espionage Act, the court made clear, is not limited to spies or agents of a foreign government, and contains no exemption “in favor of one who leaks to the press.”