“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."

-Justice Oliver Wendell Holmes in Schenck v. United States

"The constitutionality of protecting intelligence gathering and other operational military secrets in time of war is therefore beyond dispute, and the institutional press is no more permitted to ignore the legal restrictions imposed by the Espionage Act on the publication and other dissemination of such classified information than are ordinary citizens. Neither is it exempt from prosecution for willful violations of that Act."

-John C. Eastman, professor of Law and director of the Claremont Institute Center for Constitutional Jurisprudence, testifying before the House Permanent Select Committee on Intelligence, May 26, 2006

The remainder of Professor Eastman’s statement to the Committee is published today by the Wall Street Journal, and may be found online here.

After the current investigation is completed, I would bet money that the New York Times is going to be prosecuted by the Justice Department for publication of the NSA surveillance story. The legal basis for that prosecution is laid out thoughtfully and concisely by Professor Eastman.