The Court's fundamental factual predicates in Bartnicki are that the media defendants played no part in the underlying illegal conduct and their access to the information was obtained lawfully. In the case of the NSA leaks, however, the disclosures to the Times were themselves illegal; it is the fact that the Times is an "unauthorized person" under section 798 that makes the disclosures to the Times illegal.
The Astute Blogger adds:
The leakers knew that the POTUS had the right to do authorize what he authorized, THAT'S WHY THEY DIDN'T USE THE PROPER CHANNELS SET FORTH IN THE WHISTLEBLOWER PROTECTION ACT. The leakers knew it was legal and constitutional but FELT that it could be SPUN into a scandal by a willing MSM, an this spin would HOODWINK a gullible electorate.
