I was listening to talk radio while at work earlier, and I heard something that really bugged the crap out of me. Gunny Bob Newman, a former Marine, was talking about the New York Times article from Friday. You know the one I'm referring to, as it's pretty much been THE topic of conversation around the blogosphere over the weekend.
Gunny Bob seems to have suggested that the Times, by virtue of revealing classified information in their Friday article, should be investigated for and found guilty of violating this statute, specifically delivering defensive information to the enemy in time of war and this statute, disclosure of classified information (both of which fall under the general heading of Espionage). I've bolded the high points of the first law to make it easier to scan through the blockquote, as it is quite a tedious read.
(a) Whoever, with intent or 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, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.
(b) Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates, or attempts to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the Armed Forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for any term of years or for life.
Okay, got that? And yes, you are very welcome for saving your eyes unnecessary strain for trying to pick apart Section 794. I couldn't do it if it wasn't for a more than generous supply of quality coffee. Also, please note that I purposefully placed an emphasis on the words "in time of war" up there in that mass of blockquote.
In Monday's show, the Gunny read out from Senate Joint Resolution 23, which was passed a few days after the 9/11 attacks. This is the primary document for the whole "War on Terror" which led us into Afghanistan and Iraq. Yet there is one piece of the Joint Resolution he failed to mention:
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supersedes any requirement of the War Powers Resolution.
So in other words, Sen. J. R. 23 was not a declaration of war, but the authorization the President is required to have via the War Powers Resolution of 1973. Oh, and the War Powers Resolution has an additional emphasis buried down in Section 8 (a)(2)(d):
(d) Nothing in this joint resolution--
(1) is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties;
Which means that the War Powers Resolution specifically reinforces the constitutional authority of the Congress as being the only ones with the power "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water" as shown in Article 1, Section 8, Clause 11 of the Constitution.
And all of this is simply a long-winded way of reinforcing the title of this post. We. Are. Not. At. War. Not in the legal definition. If we were in a true state of war, that Joint Senate Resolution would have a completely different title: "A Declaration Of A State Of War." And that hasn't been seen here in the United States since that little folderol known as World War Two.
We are in a state of armed conflict. Yet, for some strange reason, I'm under the impression that the slogan of "A State Of Armed Conflict Against Terror" doesn't really scan all that well, and would be a real pain in the hoo-ah to fit in a newspaper headline. So we shorten the "state of armed conflict" to what the dictionary tells us is the closest synonym, a.k.a. war. As Hank Zyp of the Western Catholic Reporter (and very weird name) simplified it: "The difference between "war" and "armed conflict" is that wars need the approval of Congress, but armed conflicts can be initiated by presidential decree." That was written in 1999, well before the current set of crises even began.
So please, for the love of all that is deemed holy, if you are going to call it a war, do not let your choice of semantics alter the reality of things.
Should this have been a war, as declared by Congress under the Constitution, the rules would have been vastly different. In the current situation, the rules remain the same. There is little difference between the legal options of the United States in times of peace versus in time of armed conflict. That is not the case in time of war.
And I would think that a man that retired as a Gunnery Sergeant in the United States Marine Corps would be able to understand the difference between the two.