During the “All Star Panel” segment of the April 19 edition of Fox News' Special Report with Brit Hume, Roll Call executive editor Morton M. Kondracke asserted that the disclosure of the Bush administration's warrantless domestic surveillance program to The New York Times “is the equivalent of telling the newspapers that ... we've broken the Japanese codes or, hey, we've discovered radar, we can see enemy planes.” But Kondracke's equivalence rested on two assumptions for which Kondracke provided no support: that those engaged in terrorist activities did not already have reason to believe that their communications were being monitored, and that the warrantless domestic surveillance program was effective before the New York Times report. Both assumptions are dubious at best.

In December 2005, New York Times reporters James Risen and Eric Lichtblau first revealed that shortly after the September 11, 2001, terrorist attacks, President Bush authorized the National Security Agency (NSA) to monitor the communications of United States persons without obtaining a warrant. The program is an apparent violation of the Foreign Intelligence Surveillance Act (FISA), which normally requires a warrant for such surveillance.

Referring to Risen, Lichtblau, and Washington Post reporter Dana Priest -- who revealed the CIA's use of secret interrogation sites overseas -- CNN political analyst William Bennett said on April 18: “I think what they did is worthy of jail.” All three won Pulitzer Prizes for their reporting. Discussing Bennett's comments, Kondracke said on Special Report that while he did not think the reporters should be imprisoned, “the people who leaked the story should go to jail, especially in the case of the NSA spying case.” Kondracke added: “If I were the editor of The New York Times, I would be ashamed of myself for publishing the story about the NSA spying.”

Kondracke's assertion that the disclosure of the Bush administration's domestic surveillance program is the “equivalent” of telling reporters about the breaking of codes or the use of radar relies on the claim -- advanced by members of the Bush administration -- that potential terrorists would not have otherwise suspected that their communications were under surveillance. The new information revealed by the Times was not that the United States spies on terrorist suspects but, rather, that the Bush administration has undertaken such surveillance without obtaining warrants.

As Media Matters for America has noted, on the February 12 broadcast of ABC's This Week, Washington Post columnist George F. Will dismissed as “peculiar” the claim that the program's disclosure “tip[ped] off” enemies of the United States to the possibility that they were under surveillance:

WILL: I want to go back to the NSA thing. The administration says talking about this tips off the enemy. Now, the idea that our enemies think that the most technologically sophisticated nation in the world isn't using all its advantages to eavesdrop on them is peculiar. In 1978, we passed FISA. That alerted them, if any alerting was needed, that we were indeed listening in, passing the Patriot Act alerted them to what we were going to do and were going to not do. What I do not understand in this whole bizarre week we just had, George, our arguing about the NSA surveillance, the administration saying desperately important to pass the Patriot Act.

A February 6 exchange between Sen. Joseph R. Biden Jr. (D-DE) and Attorney General Alberto R. Gonzales during a Senate Judiciary Committee hearing on the surveillance program also cast doubt on the claim that the program was damaged by media reports:

BIDEN: General, how has this revelation damaged the program? I'm almost confused by it but, I mean, it seems to presuppose that these very sophisticated Al Qaeda folks didn't think we were intercepting their phone calls. I mean, I'm a little confused. How did it damage this?

GONZALES: Well, Senator, I would first refer to the experts in the Intel Committee who are making that statement, first of all. I'm just the lawyer. And so, when the director of the CIA says this should really damage our intel capabilities, I would defer to that statement. I think, based on my experience, it is true -- you would assume that the enemy is presuming that we are engaged in some kind of surveillance. But if they're not reminded about it all the time in the newspapers and in stories, they sometimes forget. And you're amazed at some of the communications that exist. And so when you keep sticking it in their face that we're involved in some kind of surveillance, even if it's unclear in these stories, it can't help but make a difference, I think.

BIDEN: Well, I hope you and my distinguished friend from Alabama are right, that they're that stupid and naive because we're much better off if that's the case. I got the impression from the work I've done in this area that they're pretty darn sophisticated; they pretty well know. It's a little like when we talk about -- when I say you all haven't -- not you, personally -- the administration has done very little for rail security. They've done virtually nothing and people say, oh, my Lord, don't tell them; don't tell them there's vulnerabilities in the rail system. They'll know to use terror. Don't tell them that that tunnel was built in 1860 and there's no lighting, no ventilation. I mean, I hope they're that stupid.

In addition, Kondracke's equivalence relied on the disputed claim that the domestic surveillance program has been effective in identifying terrorism suspects and, therefore, that the program's disclosure could have damaged national security. But as Media Matters has noted, news reports suggest otherwise. The Washington Post reported on February 5 that according to “current and former government officials and private-sector sources with knowledge of the technologies in use,” intelligence officers used the program to eavesdrop “on thousands of Americans in overseas calls” but “dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat.”

In addition, a January 17 New York Times article reported that, according to “current and former [FBI] officials,” “virtually all” of the tips provided by the NSA to the FBI under the surveillance program “led to dead ends or innocent Americans.”

Despite Kondracke's claim of “equivalen[ce],” the reported ineffectiveness of the Bush administration's warrantless surveillance contrasts sharply with the use of code-breaking and radar during World War II.

According to the NSA's own website, the breaking of Japan's “JN-25” codes led to the American victory at the crucial battle of Midway, “the turning point in the Pacific”:

[Cpt. Joseph] Rochefort believed AF referred to Midway. With the approval of RADM [Chester] Nimitz, instructions were given to the Marines on Midway to send a plaintext message complaining about the lack of fresh water. Two days later, 12 May 1942, a JN-25 message was decoded stating: “AF is short of water.”

Knowing Midway would be attacked, the U.S. Navy and Marines were able to adjust their forces and combat the attack head on. Although the battle raged for portions of three days, and significant numbers of U.S. and Japanese lives were lost, the Americans defeated the Japanese fleet.

Similarly, the World War II Multimedia Database notes that the introduction of widespread radar use during the Battle of Britain gave the British a significant advantage:

The Battle of Britain marked the first use of radar on a widespread scale in warfare. It allowed RAF [Britain's Royal Air Force] fighter Command's three main southern air groups to wait on the ground for incoming attacks, and then leap into the fray when the bombers were sighted on radar.

The Germans, who had not developed radar to the same level as the British, could not understand why their losses were mounting over the Channel until their intelligence identified the radar network installations.

From the April 19 edition of Fox News' Special Report with Brit Hume:

HUME: Those are the two stories that won the Pulitzer -- two of the main Pulitzer Prizes this year. Mr. Bennett has a strong opinion. Mr. Kondracke, your thoughts.

KONDRACKE: Well, I don't think they're going to -- ought to go to jail for what they did. But the people who leaked the story should go to jail, especially in the case of the NSA spying case. This is the equivalent of telling the newspapers that we've discovered that -- we've broken the Japanese codes or, hey, we've discovered radar, we can see enemy planes, you know. That's the kind of secret in wartime that ought not to be let out, it seems to me.

HUME: So you don't approve of the stories being published?

KONDRACKE: If I were the editor of The New York Times, I would be ashamed of myself for publishing the story about the NSA spying. And in fact, they didn't for a year. It was only when one of the -- James Risen was going to come out with his book that The New York Times actually published it.