Some conservatives seem eager for the Justice Department to prosecute the press for reporting on leaked classified information. Former Reagan Administration official Bill Bennett said on his radio show such reports were not worthy of prizes but "worthy of jail." This past weekend, Attorney General Alberto Gonzales fueled the fire when he suggests on ABC News' "This Week" that the prosecution of journalists was a possibility. "There are some statutes on the book which, if you read the language carefully, would seem to indicate” that prosecuting journalists for reporting on leaked classified information “is a possibility,” he said. The Attorney General went on to say that DOJ has “an obligation to enforce the law and to prosecute those who engage in criminal activity.”
Today, media attorney Michael Berry and I have an article on National Review Online urging conservatives to get off the press prosecution bandwagon. In our view, such prosecutions — even if constitutional — would be unprecedented and unwise. (And I'm less convinced of some of the legal arguments under the Espionage Act than I was a few weeks back.)
Here is our bottom line:Publishing classified information is not the same thing as stealing state secrets or spying for the enemy. There is a distinction between clamping down on government employees who leak sensitive national security information and targeting the reporters who publish those leaks. It is one thing to question the wisdom or propriety of publishing sensitive national-security information, or to allege media bias. But it is quite another to call for the criminal prosecution of journalists for reporting on matters of public concern, even when those matters implicate national security. Not every embarrassing or unfortunate disclosure is a criminal act.The full article is here.Sensitive information should be treated sensitively, even by journalists. Conservatives, however, should be wary of novel applications of vaguely worded criminal statutes, particularly in the face of clear constitutional text. If the Justice department were to go ahead and prosecute journalists for reporting on such information, it would unduly hamper press freedom and set a dangerous precedent that conservatives would come to regret.
UPDATE: I'll be responding to critiques on and off in the comments throughout the day.
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In any case, you make a very abolutist argument here, and I think that it has to be tempered with some judgment. Should the press be able to release operational data? For example, the Allied Armies in 1944 were able to maintain security over the ultimate target of the D-Day invasion. Even after the invasion was well underway, the Germans believed that it was a feint, and that the real target was Calais, and not Normandy. And, I think few would deny that that secrecy saved a lot of Allied lives.
Imagine the result though if it were today, and the NYT published a story on page 1 above the fold that "Dishonest American Generals Misleading American Public About Invasion of France". What are the chances that Rommel wouldn't have strengthened the defenses in Normandy as a result, or that Hitler would have refused to release the Panzer reserves?
The reality is that the release of the NSA international communications surveilance program information hurt our efforts to intercept communications between terrorists, as did the previous disclosure that we were tapping sattelite phones. Indeed, the later, though unremarked much, could arguably be worse, as prior to that disclosure, al Qaeda apparently was making heavy use of such phones, and their use of them dried up almost overnight after hearing about our interception on CNN.
I should also note that it is probable that 18 USC 798 is more likely what the Attorney General was referring to. My parsing of the statute in relation to the NSA program can be found here. BTW, this statute specifically includes "publishes".
Wow, what a simplistic article.
"Congress shall make no law". End of story??? Since when? It's like you never even went to law school! Do the words "compelling governmental interest" appear in the article? Howabout "narrowly tailored"? How can any article by an ostensible legal scholar purporting to analyze whether a law runs afoul of the First Amendment not use such phrases?
And that's not even getting at the point that Bruce Hayden makes - that the authors appear not even to be aware that it is Section 798, not 793, to which Gonzales was referring.
Yikes. I would have expected better.
In the moral balance, which one of these is worse - the al Qaeda spy working for a cause in which he believes or the reporter giving aid and comfort to his nation's blood enemy in order to sell newspapers or perhaps to take partisan political shots?
Press credentials do not provide the bearer greater First Amendment rights than an average citizen like the leaking government employee. They are both equally culpable -morally and legally.
Sure some things that are classified shouldn't be, but that is another matter.
And challenging questionable programs is a problem if they are classified and unknown but that doesn't mean all programs should be public.
"Congress shall not ..." Imagine that! Taking the uS Constitution for what is in the text and accepting that common folk can actually read it and understand it. Preposterous.
The reality is that the release of the NSA international communications surveilance program information hurt our efforts to intercept communications between terrorists
Assertions about reality do not become reality. I think the best argument against prosecuting the press is that the government is a self-interested body that will use that power to intimidate members of the press who release information that is merely embarassing to the government, not threatening to national security. I think we know government officials love to shut down critical press coverage.
People will fulminate about disclosure of the NSA but I have yet to see evidence or even good reason to think it had a national security impact. Was AQ assuming that we were not undertaking such activities? Have they altered their behavior in response to the disclosures?
But what I see here is civil disobedience without the thought of paying the statutory legal price for it.
That said, I agree that the statutory arguments are somewhat different when it comes to section 798 and its application to the New York Times stories, but I don't think the case here is open and shut either. If Section 798's prohibition of publishing "any classified information . . . concerning the communication intelligence activities of the United States" applies to any classified description of government surveillance activities it may be constitutionally overbroad. These concerns are confounded because the prohibition equally applies to any communication to an "unauthorized person." Thus, I suspect courts would (and I believe should) construe the language of the statute narrowly, and it's not clear to me such a narrowed construction would apply to the NYT stories.
None of this means that journalists could never be prosecuted. I cannot speak for my co-author, but I agree that, at some extreme point, reporters should be prosecuted for publishing truly harmful information (and the various opinions in the Pentagon Papers case suggest as much). Yet I do not believe the recent stories come close to that line.
As for Bart's comments, there is a difference between the journalist and the leaker. Among other things, a government employee with access to clasified information has committed himself to not disclosing such information. This creates both a legal and moral difference (and, as we note, is a distinction that some judges have found important; see, e.g., the Morison case, in which the individual who stole classified documents was prosecuted, but the papers who pulbished the documents were not).
I'll return to the comment board later, but I have exams to grade.
So because it isn't clear to you, therefore it is okay to divuldge the info? Who are we leaving to decide this? The press? At what point do you draw the line?
Only in a Kafka novel could such a thing be imagined and yet there they are and there they'll stay until their constituents wake up.
Publishing leaked material for the purpose of embarrassing or destroying a duly elected administration for partisan purposes is an abomination. These cretins who think they know best have endangered the lives of many on the front lines whether CIA agents, the military, etc. should, at the least, be exposed for what they are.
The fact is that public discussion of the "damage" caused by a breach of national security is itself a cause of further damage. The Court realizes this and, in effect, says "The Administration must be trusted on this."
That matter of trust, of course, is going to drive some people just plain crazy.
The administration has a lot of priorities and goals right now. Many of them are actually pretty good ideas.
But these ideas cannot come to fruition if the executive keeps sabotaging itself with nasty political battles.
Picking one's battles is an art that seems lost in the White House these days. If there is ever a really egregious instance of abuse from a member of the MSM, the Attorney General will have little trouble drumming up popular support for steps to be taken.
However, things really aren't so clear right now. This is doubly true when half of America suspects that it is actually Bush's cronies who are behind half of the CIA leaks in question. Bush can only squander scarce political capital on this. If he wants to accomplish anything by 2009, he'd be best served to just drop this.
I suspect though what you want is hard evidence. Unfortunately, as you probably well know, that would give away further information about capabilities, etc., which is why, right now, it is unlikely to be forthcoming.
I see you as essentially arguing that there would have to be additional disclosure of classified information that may further impact our terrorist surveilance in order to overcome you objections, and, since that is unlikely to happen, your argument is persuasive.
As to what al Qaeda thought, obviously we don't know. But these aren't guys who sit around reading old articles about ECHELON, etc. Rather, they are Wahhabis, which means that to the extent possible, they stay mired in the 8th Century, and only come into this one when they can use its technology against us.
For example, the publically available documentation about ECHELON would give strong indication that the NSA has had the capabilities for a long time to intercept sattelite communications, and, indeed, were actively doing it. But up until it came out in the press that they were actually doing it, al Qaeda was apparently making heavy use such phones.
Well, gee, who gets to decide what is "truly harmful"? It certainly should NOT be the journalists. Only the government is truly in a position to know what is truly harmful.
Among other things, a government employee with access to clasified information has committed himself to not disclosing such information. This creates both a legal and moral difference
Every US citizen - including journalists - has a moral obligation to ensure that national security is not harmed.
I for one would feel a little bit more comfortable with the government surveilling more if they were also more willing to have competent and sufficient oversight. If they can't even trust Congress members to shut up about their projects, then they must have something fairly diabolical to hide! And on the flip side, if the press cries "freedom" everytime that they get a classified tip - when the real bad shit comes down the wire, nobody will care or be worried. I certainly have respect for the spirit of the surveillance - they are really trying to help us and gather intelligence.
If there is oversight and a legal path for me to protect my own safety after being surveilled - then I am OKAY with what they propose.
But if they can do what they want, with no oversight, and no way to cover my ass in a real court - that is what boggles the mind so much! The audacity of this regression to some third-world shadow of liberty makes me want to take to the street and man the barricades!
What bothers me is that the administration side of things refuses to defer to any other group in any way, shape, or form.
Our democratic experiment is protected by the judges, the legislators, and the executive all working together and being willing to cede authority in specific areas. If one group or the other is not willing, then you get either a dictatorship (Iraq), a kangaroo parliament (China), or a group of appointed-for-life oligarchs (Iran). None of those sound like a free society to me! Indeed, as a culture of liberty, we despise all three so much that we are willing to kill and sanction to get rid of these things!! Because we act on those principles, it also means that the government has the moral obligation to protect my own liberty over the protection of their budgets and priviledged info that has no impact on people's safety.
To me, the freedoms given to us in the Bill of Rights all hinge on our freedom to disagree, and specifically with those who have the power to shut us up with laws and guns and hate. When we aren't allowed to have an avenue to disagree, by hiding behind classification and priviledge, then we will soon degenerate into one of the above problematic governments. And that last sentence is directed at the executive AND the press - if the press just publishes everything, then they have become the fourth estate and need to become a total part of the government with its checks and balances! Both sides need to be punished under our laws, or it is all for nothing.
Then there's the other class of people: the Washington privileged. They have the privilege of disclosing (NYT), or destroying (Sandy Berger) classified information at whim, and the worst thing that will happen to them is a slap on the wrist. Most of the the time, they won't be prosecuted at all, and the nation's intellectual elite will stand up to defend them. They clearly have rights that other Americans don't have. And none of this is actually written into the law. It's just the Washington good-old-boy network: you can prosecute the grunt in Nebraska who forgets to sign a form in the right place, but you don't prosecute the guy down the street who throws the great cocktail parties.
Those of us in the defense community want the 14th Amendment to apply: we want the law enforced equally. Is that asking a lot?
A P.S. to frankcross: Al-Q has in fact changed their methods in response to the disclosures about the NSA surveillence. It's been documented that they are now relying on pre-paid cell phones, which are disposable and for all practical purposes untraceable. I've seen several accounts recently of suspicious attempts to purchase prepaid cell phones in bulk at Wal-Marts and such. Figure that for every one that gets caught, probably at least two aren't caught.
I agree with that the administration ought leave the press out of the picture. If they continue to pursue the press on this matter, they do so at their peril, unless they can show some evidence that the journalist used extremely dubious methods or highly sophisticated conspiracy to cause the leak to occur. Simply accepting the opportunity to report a story, even with a nice "thank you" paycheck for the tip, is not going to convince me that the journalist is just doing their job. I may not like their job, but in the big picture, I think it is healthier for our country to let that occur.
None of this means that journalists could never be prosecuted. I cannot speak for my co-author, but I agree that, at some extreme point, reporters should be prosecuted for publishing truly harmful information (and the various opinions in the Pentagon Papers case suggest as much). Yet I do not believe the recent stories come close to that line.
If the line for prosecuting journalists is somehow higher in your mind than that for the average citizen, where is that line and what is your legal basis for using different lines?
Let me suggest a bright line rule, if I may. The theory behind classification is that some activities of the executive need to be kept secret from the enemy for operational security. However, criminal activity is not a legitimate activity of the executive branch and should not fall under the President's Article II power to classify. Therefore, a defendant charged with illegally disclosing classified information should be able to move to dismiss on the grounds that the acts being classified were themselves illegal and not eligible for classification.
However, policy or political disagreement, newsworthiness or "the public's need to know" are not legal defenses to disclosing classified information to the enemy.
As for Bart's comments, there is a difference between the journalist and the leaker. Among other things, a government employee with access to clasified information has committed himself to not disclosing such information. This creates both a legal and moral difference (and, as we note, is a distinction that some judges have found important; see, e.g., the Morison case, in which the individual who stole classified documents was prosecuted, but the papers who pulbished the documents were not).
We were discussing the statutes making it illegal to disclose classified materials. In such cases, I cannot see the difference between the primary leaker working for the government and the subsequent leaker working as a journalist. Both have a legal duty under these statutes not to disclose classified materials.
The fact that the government employee may have incurred further liability by entering into nondisclosure agreements is irrelevant to my point about liability under the statutes.
I will reverse that question. Who should be making that decision, the duly elected president of the United States, or the editor or publisher of the New York Times. And if you say the later, I have the further question, should he/they be subject to the statutory penalties associated with the publication?
If you contend that the New York times is the one that should make this determination, and don't believe that they should be prosecuted for this, then a final question: who elected them to make this decision? What gives them the moral right to make this determination of what is in this country's national interest?
Now, in extreme cases, you could prosecute the press. But extreme means more than the President asserting: "Trust me, harm was done." Because that puts an unthinking trust in government officials.
These are the guys you trust to decide when to exercise restraint in the exercise of their perceived power? These are the same guys who said it hurt national security to tell terrorists that their phones can be tapped without a secret court order instead of with a secret court order.
On the other hand, I heard a reporter (I think it was Dana Milbank) say that crack downs on leaks incease the press's aggressiveness in finding and publishing leaks, as well as the leakers' motivation to leak in the first place. So cracking down might cause more information to get out.
So, you are essentially saying, trust the New York Times. They have the best interests of the American People at heart. And if they screw up, or publish stuff for venal reasons, then that is the cost of a Free Press.
A lot of posters here have suggested that the Administration is hiding this sort of stuff for venal reasons. But what if the NYT publishes classified information for venal reasons? Why is that ok? Why is their moral imperative any greater than that of the President?
My position here is that the President has the moral high ground here simply because he was duly elected, pursuant to our Constitution, to that post, and this is part of his Article II powers. Who elected the New York Times? I am still waiting to hear why they have any moral imperative whatsoever. Their circulation is less than the population of many, if not most, States, and even if it does have a lot of subscribers, the arguments I have seen would not give it any more moral imperative than the publisher of any small town newspaper would have - or, indeed, with the Internet and blogging now, that we would have here. Riding the Slippery Slope, would your position be any different if Matt Drudge (who probably is read by more people than the NYT these days) published them, or, indeed, if our resident Slippery Slope expert, Eugene Volokh published them right here?
Haha what errant nonsense. Extraordinary rendition for US citizens? Unilateral declaration of persons not in a combat zone as enemy combatants? Perfectly legal? The Administration said no such thing. You must have failed law school.
So, you are essentially saying, trust the New York Times. They have the best interests of the American People at heart.
No, that is not remotely what I am saying. In fact, I said the opposite.
And if they screw up, or publish stuff for venal reasons, then that is the cost of a Free Press.
Yes, that is precisely what I'm saying.
And I'm all for drudge or volokh or the like posting such info if they get it. The US Constitution isn't about "moral high ground." That is the ground from which liberties are taken away. The Constitution is about checking and even mistrusting government officers.
So I take it the Times *should* have been prosecuted for publishing the Pentagon Papers? (After all, as Mr. Hayden points out, the White-Stewart concurrence in the Pentagon Papers case made clear that the Court was only saying there couldn't be any prior restraint, not that the newspaper (and Dan Ellsberg) couldn't be prosecuted after the fact.)
First, unless I've missed it, no one has contested Berry's and my analysis of the Priest case and the dangerous precedent it would set if diplomatic difficulties were the sort of injuries that could lead to prosecution. This alone should lead some on the Right to temper their calls for prosecuting the press.
Second, of course national security is the sort of "compelling interest" that can justify limitations on the freedom of the press under the First Amendment. But it takes more than the government's say-so to satisfy such strict scrutiny. Part of Berry's and my concern is that that the language of the Espionage Act is broad enough to cover many instances in which the government would lack a truly "compelling interest" and therefore the law is not narrowly tailored enough to satisfy such scrutiny. For instance, any interpretation of 793(e) that encompasses Priest’s article necessarily encompasses a wide swath of legitimate speech – that was one of the points of our column. In the criminal context, this is constitutional overbreadth and certainly something that should be guarded against (essentially what Judges Wilkinson and Phillips explained in their Morison concurrences).
Third, with regard to Section 798, even assuming Section 798 is more carefully drawn than Section 793, that does not mean the NYT committed a crime. Section 798 has a specific definition of “communications intelligence”:The NYT stories in question do not discuss any specific procedure or method beyond the use of wiretapping -- the availability of which is hardly a state secret. There was no revelation of some secret new technological capability or decryption technique, nor did they detail how any information is obtained from intercepted communications. Why does this matter? Because if such details are not required for a vioation of Section 798 then it is likely to suffer from serious overbreadth problems as many journalists (and others) have likely violated this provision.
Fourth, in answer to the questions above, I'm inclined to think that bloggers should be treated as journalists for First Amendment purposes, though I'm open to arguments to the contrary.
Finally, let me reiterate that I think there is a significant difference between the government official who violates the law and administration policy by leaking classified national security information and the journalist who reports on such information. I do not see serious constitutional problems with seeking to prosecute the former -- and would support the passage of more carefully drawn statutes to focus on such acts. I also believe, as the D.C. Circuit held, that journalists can be forced to reveal their sources in some instances. Freedom to publish does not entail the freedom to withhold information about criminal activity (though note that insofar as the press faces criminal liability for reporting these stories, journalists may be able to plead the Fifth in a leak investigation).
I think one can, and should, draw a line between policies aimed at identifying and punsihing leakers (and spies), on the one hand, and the prosecution of journalists for publishing leaked information in all but the most extreme circumstances (e.g. the D-Day scenario), on the other. Alas, some on the Right, in their zeal to lambaste the press, have failed to draw the line in the right place.
Thanks for all the comments thus far, now back to those exams . . .
But that is not the case with the NSA programs. Rather, the primary intent of keeping those programs secret was to protect their operational details. When our enemies find out that we are monitoring their calls in a certain way, they tend to change their behaviors accordingly.
So, maybe I am suggesting that all things being equal, the President has the high ground because of his election to that post. The American People have given him that power by electing him. But, yes, it can be misused for venal, personal reasons, and that is where he loses his moral imperative. That has not been alleged here. There have been no credible claims that I have seen that the President was keeping these programs secret for anything other than operational reasons, or, indeed, that he allowed the programs for other than true national defense reasons.
As for the press they are not some fourth estate. They do not represent the public interest, indeed they would not know the public interest if it beat them over the head with a baseball bat in broad daylight. They are partisans, interested solely in the adulation of their gang mates and the welfare of their party. Prosecuting them as the accomplices and co-conspirators, that they so clearly are, is only just and would discourage others from playing the footpad in the future.
The first amendment has no role here. The leakers are guilty of breaching the terms of their employment, which necessarily involve a waiver their first amendment rights, knowingly, voluntarily and for a valuable consideration. The press are their accomplices and co-conspirators. They have no special rights or privileges by way of their occupation.
The leakers and their lackeys in the press deserve the harshest penalties of the law.
This is not the 18th century with a correspondingly hobbled or nascent press; this is the 21st century with something that approaches a royalist, inviolable and not-to-be-questioned press. Additionally, the D. Priest example was not simply concerned with diplomatic issues, nor did it involve exposing a breakin at the Watergate Hotel, it involved reasonable and warranted natl. security issues.
This from a news account of the Fourth Circuit argument in Padilla v. Hanft:
Luttig repeatedly pressed Clement, even after the solicitor general noted that Padilla's alleged intentions as a soldier of al Qaeda - to target civilians - constituted "unlawful combatantcy" even if he were on a battlefield in uniform.
"Those accusations don't get you very far," Luttig replied, "unless you're prepared to boldly say the United States is a battlefield in the war on terror."
Clement answered, "I can say that, and I can say it boldly."
I didn't "fail law school," but the Bush administration has such a broad view of executive power that there are precious few limits. Why do they need an official secrets statute when they can just declare the editors to be enemy combatants?
I think that you characterize “communication intelligence” too narrowly. First, you call it "wiretapping". But it isn't strickly wiretapping that we are talking about. That implies putting a couple of induction pickups on a single line and recording from that. Rather, we are talking about siphoning off a large percentage of the traffic from international switches fiber switches and then looking through that for specific calls. Importantly, there were most likely absolutely no induction pickups used. Technically, is is far different, and that is what you were essentially arguing I think, that the technology was old and well known, so there couldn't be "communications intelligence" interception here.
Nevertheless, you can make an argument that this technical detail came out after the original NYT article. I just reread it, and it doesn't detail how the NSA is doing what it is doing, but rather, just that it is doing it.
However, that still doesn't get around what I think is the plain meaning of the statute (798) which states that:
I still don't see why the NSA program would not be "communication intelligence activities of the United States". It is being done by a portion of the U.S. government (the NSA). It is an activity, it intercepts communications, and the NSA is not the intended recipient of the intercepted communications. It seems fairly straight forward to me.
Bruce, are you sure the information about satellite phones was leaked? As I recall, it was announced.
To take an example not brought up in this thread, President Carter announced that the US had stealth aircraft. He was widely criticized for 'leaking' or otherwise damaging national security. (Whether it had that effect or not, I cannot say.)
So there is the practical problem of the 'inspired leak.' Ask Dennis Hastert about those.
There is also the practical problem, in 2006, that if you bring a prosecution against a newspaper, you are going to have to find a jury that will convict. Not so easy, as Nixon learned.
As for the distinction between 8th century Wahhabis who allegedly 'had to be taught' about cell phones, and modern Americans, what about those nitwit CIA agents in Italy? They did not understand about how cell phones could be traced, even after the news had been 'leaked' (or not, as the facts may be) to al Quida.
I once worked for a distinguished editor who claimed that everything government does is fair game as news, with the exception of troop movements in wartime. He was fun to work for, but an extremist in the defense of the public's right to know. I never met anybody else in the business who went that far.
Despite the hysterical tone of some posts here, mainstream, commercial news organizations do not just dump, willynilly, any information they come across. Not if they want to sell papers next month. And that's got nothing to do with any risk of prosecution.
You're right; nothing like that is happening here. The Bush Administration is incapable of embarassment.
No, I am not sure that the satellite phone interception was not disclosed by the Administration. It may have been. All I remember is that it was disclosed, and the traffic dried up.
Also, if it was done by the top of the Administration, it isn't technically leaking, because the President has plenary (and in this Administration, the VP has delegated) classification and, in particular here, declassification power. President Carter's disclosure of stealth technology was not a leak, it was a legal disclosure. Carter may have harmed national security. But that sort of decision was within his plenary powers as a duly elected president. He couldn't be prosecuted for making that decision. Rather, the one legal remedy available was impeachment.
I am not saying that the NYT should have been prosecuted for publishing the Pentagon Papers, but rather, that there is a decent chance that it would have passed Constitutional muster. Three Justices (Burger, Harlan, Blackman) dissented, and two, (White and Stewart) were most concerned about the Prior Restraint in their concurrence. So, they might have gotten at least five votes if the lawsuit had been after the fact, and not trying to prevent publication. Of course, if you read the dissents, they seem mostly upset that the entire justice system was being so rushed. The NYT had sat on the documents for months while they went through them, and then the lawsuit had gone through the trial court, all the way to the decision by the Supreme Court in two weeks.
Prosecuting the press is always a political decision. In the Pentagon Papers case, the last thing that the White House wanted was to be seen as being vendictive in prosecuting the press for this, esp. given Watergate and the press' role there.
In this case, I have been suggesting that the current Administration has a lot cleaner hands. It can make a plausible argument that it would be prosecuting for true national defense reasons, and not just in retaliation for the press trying (and succeeding) in bringing down Nixon. Nevertheless, it is still a political decision, fraught with risk, which is most likely part of why no one has been indicted yet.
Except that we elect the president to make those determinations. And that is why, IMHO, not all disclosures of classified information are equivalent.
So, basically, the notion of prosecuting jouralists is one more item on the list for those who yell at their television sets.
Doesn't simply publicly saying that potentially reveal an important state secret?
That secret would be that our strategy depended on the assumption that our enemies are so stupid that they only believe what they read in newspapers.
As for the Priest piece, I will not make an argument about espionage laws (which I think quite obviously do not apply for the reasons given in the original article), but make a point to those who question the probity of her decision to publish. The states in Eastern Europe housing the secret prisons are, more or less, (1) democracies, (2) Rechtstaaten, and (3) US allies. It seems highly likely that, even if the US acted legally, the governments of these states violated their own constitutions and treaties. Isn't this a matter about which the citizens of those countries have a right to be interested? Would it be proper for a paper in one of those countries to publish the information? If so, why not a US paper? Is concern for the rule of law in allied states not a matter of journalistic interest? Isn't communicating information of the utmost public interest to citizens in an allied democracy a legitimate function of a newspaper?
The governmental interest at issue should be much greater if the government seeks to draw the secrecy line so that it limits the freedom to publish (and no, the scope of the freedom doesn't depend on whether one is part of the "institutional" press or, for example, a blogger) than when it merely seeks to limit one's freedom to make selective disclosure of the same information. The reasons include, among others, the relatively greater likelihood of prosecution of publication resulting in a chilling effect on protected publication. There's also the practical consideration of proving all elements of a crime -- in most cases involving publication, it would seem that the government has an uphill battle in proving intent (why would a reporter "know" that a disclosure by a governmental source isn't authorized?).
If it becomes too easy to shift the burden to the defendant-reporter on the intent issue, will it become too difficult for the government to make strategic, authorized "leaks" of information (or disinformation)? One of the (apparently) underappreciated features of American government is its openness and how that openness likely makes analysis of information difficult for our enemies -- in most cases, there's just too much published information out there to make meaningful and timely use of it. Slow the flood to a trickle, and the job of an enemy intelligence analyst gets easier. That's not to suggest that publication of secret information is never damaging, but we should probably give serious consideration that prosecution of the press probably is more damaging in the long run. Don't ever let a reporter protect a source of leaked classified info, but proceed cautiously in making the reporter and the leaker co-defendants.
And thats where you are mistaken.
Gov't employees sign an oath not to reveal these secrets. The press does NOT. That VOLUNTARY OATH makes all the difference .
The disclosures by the Times and USA Today may or may not have violated the criminal laws of the United States. But if they did--that is, if Justice concludes that there is probable cause to believe that the publication violated the criminal statutes--then the papers and journalists involved should be prosecuted and tried like anyone else.
The Pentagon Papers stands for the proposition that there are no prior restraints on publication. White's concurring option clearly warns journalists that "You can publish what you want and the courts can't stop you in advance, but you must face the consequences if the publication violates criminal law."
Then who will protect the journalists from the executive? The same people who protect the rest of us: the courts. But the inquiry by the courts should be only whether the publication in fact violated criminal laws. The First Amendment should be left out of the inquiry.
We are supposed to trust a newspaper who ran all Abu Ghraib, all the time for what, forty-five days in a row? Pretending it broke a story? Which has deliberately misrepresented submissions by soldiers to the extent of making what they said seem to be 180 degrees from what they really said? Or a TV network which used forged documents to try to throw a presidential election in time of war?
Put me on a jury. Go ahead. Now, of the 280 million and some who are not journos or lawyers, how many would you think have some of the concerns I have about this issue?
I can see an earlier poster's point about the D-Day deception, if Bush was president. Those were those days and those journalists. Today's are different.
It seems to me that the standard defense would be that this information should not have been classified anyway, if a reporter can convice a jury (or more accurately the reporter's lawyer) then the reporter walks, if not the reporter does time.
To be able to prosecute the leaker there has to be some incentive for the reporter to reveal their sources. Start at the person who made it public (the reporter) and work back from there. The reporter has to make a decision, can I convince 12 people who have a low opinion of reporters that this was not a crime, do I reveal my sources or do I do time. I do not see any reason to make life easy for reporters and let them off of the hook for making that kind of decision. It will certainly separate the good reporters from the bad ones.
On the flip side there needs to be pressure on the Government to be more transparent. Frankly I think that the prospect of the Government trying to convince 12 taxpayer that what was classified should have been classfied will exhert some pressure on administrations to moderate their use of classification.
I'm not a lawyer, so I don't know if ignorance is a defense for buying stolen goods (and generally, you have to follow the old adage, 'if it's too good to be true'), but these reporters KNOW that the information they are receiving is not just Sensitive, but _Classified_. I know NR wants folks to respect the law at all times, so how about supporting the difference between sensitive information vs classified information? I could even buy some sort of compromise, where reporters wouldn't be pursued for publishing leaked Sensitive information. Heck, that would be a great way to get more pressure on the leakers.
Think -- if you're trying to leak something, and the reporter, who wants to keep his butt out of a sling, asks you if the information you're providing is classified. If you lie to him, then he doesn't feel bad exposing you later if the information he publishes IS Classified. That's a win-win in my book.
Think what this evidence would consist of: what, really, was the harm of the secret prisons story? What admissible evidence has the government got for that harm? Same for the NSA stories: the government would have to reveal yet more about what it's doing to monitor AQ in showing that AQ changed behavior as a result of some NYT stories. And what exculpatory evidence might the government have -- that is, what is the contents of the various tapes of AQ conversations after the NYT stories, etc?
I can see why the AG might want to send some shots across some bows, but actual prosecutions? They're more likely to send a reporter to Gitmo (and I find that unlikely in the extreme).
tefta:
Wurly:
cousin dave:
Let me point out something that all too many of the commentators on this thread are forgetting: it is NOT in general illegal for members of the public to leak or to publish classified information, with the exception of COMINT information (18 USC 798) (whatever that phrase may mean). In all other cases, there are additional requirements imposed for a criminal offense.
You think? Speaking as Joe Citizen, and based on what I've heard so far from the defense (i.e. from the newspapers themselves and their most eloquent defenders), I'd convict any number of journalists in a heartbeat, on the most serious possible charge the prosecution can dream up. I think a nice long stretch in the big house would give them time for some useful reflection on the differences between principled opposition and unprincipled opportunism, not to mention selling out your country for a fast advertiser's buck and the admiring applause of your equally narcissistic and short-sighted political bedfellows.
I guess then we have a fundamental disagreement that can never be reconciled.
I favor a free society, and you don't.
The presumption that prosecution of the reporter or publisher could chill disclosures of improper executive conduct assumes two facts that are not demonstrably clear. The first is that the reporter or publisher is qualified to make judgments on the the propriety of the exective action complained of. The second is that the motivation of the reporter or publisher, or for that matter, the leaker, is pure.
Today these facts are far from demonstrable. The NYT/Risen/Lichtbau misrepresentions, directly and by omission, of pertinent statutes and case law surrounding the executive authority for the NSA wiretapping proves their unfitness for serving as an important provider of information to the public. And given their willingness to present misleading stories, they wholly lack credibility themselves and are entirely unreliable as judges of the credibility of their anonymous sources.
The first amendment's free press guarantee does not trump the electorate's right to have its elected executives carry out lawful steps designed to implement the policies they were elected, after national debate, to implement. It certainly could not have been the founders' intent to permit the press to arrogate unto itself, with the collaboration of cowardly anonymous leakers, the power to reverse the will of the electorate.
Frankly, I don't care if Risen or Keller do time for their dishonest reporting, but should they refuse to disclose their sources, they should do time for that.
I don't know about jury nullification, but inability to persuade all 12 would really be a problem. With the Harrisburg defendants, the Nixon administration shopped for a jurisdiction it thought was in its pocket. And lost.
I'd bet no federal prosecutor wants to try, whatever the interpretations of the statute.
As a practical matter, I don't think government has too much to worry about from big newspapers, still less from broadcasters who need licenses. Nobody is going to throw away a property worth billions by publishing a story that is clearly indefensible -- the kind that any jury would convict on.
Where the danger might arise would be if a penniless freelance (eg, Drudge) somehow got hold of some genuinely secret material.
Aside from actual military operations, it is not so easy to think of examples of revelations of secret material that had any profound consequences. The Bolsheviks published the 'secret treaties' in 1917, which exposed the leaders of the Allies for the sordid crooks they all were. But when it came time to share out the provinces, they got shared out pretty much as the secret treaties contemplated.
That's not to suggest that publication of secret information is never damaging, but we should probably give serious consideration that prosecution of the press probably is more damaging in the long run.
The prosecution should take place for the very reason that we want to be here for the long run. I for one would rather take that chance than not being here at all. Unnamed co-conspirator would perhaps not mind being (for eg):vaporized in a cloud of radioactive dust. Come back then and we'll talk about the "long run".
Even more than most administrations, this one is conducting extensive programs of extremely dubious legality and unquestioned immorality (oh, except if you like genuine torture porno). Leaks and the press are one of our few defenses against the Worst Administration Ever.
The BA thinks almost everything is National Security (except for the identity of some mullet-haired idiot's wife that Karl and Scooter's intentionally leaked) and the NYT thinks the only thing that should be free from disclosure in this country are its confidential sources and its own employees history of mental instability.
Bush and the Grey Lady deserve each other.
Evelyn Blaine:
Argumentum ad pyrobolum atomicum?
Is that anything like argumentum long run? In any event you brought up a civil liberty in the "long run", not me. If you or I or we are dead, our civil liberties mean squat. If you deny the possibility and the necessity of preventing such an eventuality than you are denying the reality of terror and the war on terror. Sorry but your argument doesn't wash with reality.
My problem with them is that you are saying that it is better to let the press print this stuff that will let the enemy that is shooting and doing all it can to destroy the democratically elected governments of Iraq and Afghanistan know what the US security forces are doing to find their plans and let the military know what the enemies are doing rather than prosecute the reporters. I would like you to tell the officers and enlisted men and their families that it is better to let this happen even if their family members are killed because you can't stop the press from reporting whatever it wants to that will destroy the administration. I am sure they will appreciate the minor differences you talk about.
I really would like the editors of the NY Times to really tell us under what conditions they would suppress a story about the electronic security mechanisms that the NSA and CIA and DIA and FBI are using. Apparently the security of our troops and our country are not enough to justify the suppression to them. When do the reporters actually become citizens of this country with the repsonsibilities that that entails rather than citizens of the world until they get in trouble and scream that the military have to rescue them.
I also would like the leakers to justify going to the press rather than following the mechanisms in place to register their opinions on policy which involve going up the chain of command including access to the Senate and the Congress. Instead of following the mechanisms, they just decide that they will shortcut the whole thing and maybe get some money by feeding this information to reporters and news media that are known to be anti-administration. That point doesn;t seem to be of much importance in this whole mess.
Would you elaborate? How?
Reeling in those excesses of expression which forseeably threaten our collective lives in a material way is certainly indicated, "public interest" devotees and PT Barnum applause meters notwithstanding.
When we pay more homage to guarding trade secrets than we do to national survival in wartime, we make our society a disposable product.
Based on this history, I think it correct that, in general, journalists SHOULD be at risk of prosecution for the release of signals information. (Signals information includes traffice analysis, which appears to be NSA program -- who is talking to whom).
In the currect particular case, I think the Bush administration would be justified in prosecuting the leakers and the newspapers. (Especially since the enemy has changed their mode of operations.)