NY Times In Jail?

So apparently there is some legal standing to consider prosecuting the NY Times for "leaking" the NSA illegal domestic wire tapping story according to a story by Harvey Silvergate:

A variety of federal statutes, from the Espionage Act on down, give Bush ample means to prosecute the Times reporters who got the scoop, James Risen and Eric Lichtblau, as well as the staff editors who facilitated publication. Even Executive Editor Bill Keller and Publisher Arthur "Pinch" Sulzberger Jr., could become targets — a startling possibility, just the threat of which would serve as a deterrent to the entire Fourth Estate.

Legal means are one thing, but political will is another

First there's the obvious, and well-written about, irony of Bush going tooth-n'-nail after this leaker vs. the Plame leaker. And there's the obvious differences that any moron can see between a whistle blower and a dirty trickster. But other's have spoken to this in detail. I want to ask something else.

Would Bush actually go after the Times?

I hope he does. Maybe something like a crisis between the fourth estate and the government needs to occur to give the media gang the message that they're in danger. The crisis that occurred between the Nixon administration and the media over the Pentagon Papers release/publication galvanized the media in defense of itself. Silvergate speculates about the possibility of such a trial:

Such an indictment could be brought in short order. It would be unnecessary for the DOJ to complete the leak investigation before indicting media defendants, since the mere publication of the story would be the alleged crime regardless of the identity of the leakers. Nor would the Times’ publisher, editors, and reporters be able to claim ignorance of the top-secret nature of the information published: surely the president and his aides made that very clear at a meeting held with Keller and Sulzberger in the Oval Office last year. Besides, the Times’ voluntary postponement of publication for a year prior to that meeting could readily be spun as indicating knowledge that harm to national interests was possible.

Silvergate thinks that there's legal standing to indict, and that an indictment might not be too difficult to acquire. But then there's this:

Defense lawyers would doubtless argue, probably effectively, that their clients performed a public service by exposing official wrongdoing at the highest levels of government. Bush would, in effect, be placed on trial, along with the New York Times. One can imagine defense counsel quoting Thomas Jefferson that "between a government without newspapers or newspapers without government, I would surely choose the latter." It would be one helluva fight — the fight that we never got to see between Nixon and the media.

Publications like the Times have been trying appeasement for years to try and manipulate their relationship with politicians and have only ended up being tools of the government. That's not how it's supposed to be. It's supposed to be war. Government and media are not supposed to get along. That's what makes it work as the media is another check on government abuse. And frankly, government has upheld their part. It's the media that has become overly solicitous, flabby, and ineffective.

For those who may argue that such an attack by the government might have a "chilling" effect on the media, I say so what? Can it really get much worse at this point? Perhaps an attack by the government and a spirited legal defense by a prominent media outlet would amplify/clarify some of the law around the first amendment and educate the American public to the abuses on both sides. And I specifically distinguish such a legal action from the sham that was Judy Miller's stand to protect sources due to Miller being de facto on the governments side.

So as Bush might say, "Bring it on!"