New York Times Public Editor Clark Hoyt addressed the decision by that paper to hire Weekly Standard editor Bill Kristol to write a weekly column. Much of Hoyt's column is critical of the decision, but he doesn't go as far as the fever swamp left as to suggest that hiring Kristol was beyond the pale.

What I do want to take issue with Hoyt on is this:

On Fox News Sunday on June 25, 2006, Kristol said, “I think the attorney general has an absolute obligation to consider prosecution” of The New York Times for publishing an article that revealed a classified government program to sift the international banking transactions of thousands of Americans in a search for terrorists.

Publication of the article was controversial — my predecessor as public editor first supported it and then changed his mind — but Kristol’s leap to prosecution smacked of intimidation and disregard for both the First Amendment and the role of a free press in monitoring a government that has a long history of throwing the cloak of national security and classification over its activities. This is not a person I would have rewarded with a regular spot in front of arguably the most elite audience in the nation. [emphasis added]

Let's revisit exactly what that program did. Here's National Review's Andrew McCarthy on the program:

The effort, which the government calls the “Terrorist Finance Tracking Program” (TFTP), is entirely legal. There are no conceivable constitutional violations involved. The Supreme Court held in United States v. Miller (1976) that there is no right to privacy in financial-transaction information maintained by third parties. Here, moreover, the focus is narrowed to suspected international terrorists, not Americans, and the financial transactions implicated are international, not domestic. This is not data mining, and it does not involve fishing expeditions into the financial affairs of American citizens. Indeed, few Americans even have information that is captured by the program — though there would be nothing legally offensive even if they did.

And unlike the last vital program the New York Times compromised — the National Security Agency’s Terrorist Surveillance Program, which the same reporters, James Risen and Eric Lichtblau, exposed last December — there is not even a facially plausible concern that the TFTP violates statutory law. The provisions germane here (mainly, the Right to Financial Privacy Act that Congress enacted in 1978 in reaction to Miller) do not even apply to the nerve center at issue, the Society of Worldwide Interbank Financial Telecommunication.

That’s because SWIFT, as it is better known, is not a financial institution at all. It is a consortium, centered not in the U.S. but in Belgium, which simply — albeit importantly — oversees how funds are routed globally. It is a messenger, not a bank. Nevertheless, in an abundance of caution, the government uses administrative subpoenas — which were expressly provided for by Congress in the aforementioned Financial Privacy Act and the Patriot Act — when it seeks SWIFT information. That’s not just legal; it’s hyper-legal.

So, what's the First Amendment interest here? What's the press's role? Hoyt, unsurprisingly, appears to be part of what is probably a majority of media elites who believe they are journalists first and Americans third, or maybe fourth. (They're "enlightened liberals" second.)

It has been famously said that the Constitution is not a suicide pact -- and that includes the First Amendment. Every J-school grad who has taken media law knows that the government, because of the First Amendment, cannot prohibit publication of anything (the doctrine of prior-restraint). But J-school students are also informed that they can be sued and/or prosecuted after they've published. Whether it's civil libel or a violation of laws protecting national security, the press is not above the law.

McCarthy again:

Bluntly, officials who leak the classified information with which they have been entrusted can be prosecuted for theft of government property. If the information is especially sensitive, they can be prosecuted for violating the Espionage Act. In either event, the press has no legal right to protect such lawlessness.

And that's what Kristol was addressing. Kristol -- the American first and the journalist second -- suggested that there was a prima facie case that the Espionage Act had been violated. The fact the violator was The New York Times is almost incidental.

I'm also troubled by Hoyt's apparent belief that the government has no right to keep secrets -- especially when national security is the "excuse." It isn't a stretch to suggest that a World War II version of Hoyt would defend exposing the fact that we had cracked the German Enigma code.

German Enigma code: international, involved a country we were at war with, legal, and not targeted at Americans.

Terrorist Finance Tracking Program: international, involved terrorist organizations we were at war with, legal, and not targeted at Americans.

Too many elite journalists have long forgotten that they are Americans. It dates back to the infamous "Ethics in America" program decades ago where Mike Wallace confessed that, if he were "embedded" with the troops of a nation at war with America who were preparing an ambush certain to kill dozens of American soldiers, he would stay silent and not warn the Americans of the danger.

The Times did something very similar. They warned the terrorists that we were tracking their finances and where we were doing it. Belgium, their assistance exposed by the Times, cancelled the program in September 2006.

If a terrorist is able to so much as purchase a Starbucks gift card, then we have the Times to blame.

If Kristol's suggestion that prosecution of the Times should be considered is an unwarranted assault of the Fourth Estate, it's only because too much of the Fourth Estate has become a fifth column.