Representative Peter King (R-NY), Chairman of the House Homeland Security Committee, believes that the Justice Department should look into prosecuting the New York Times for its stories on classified government anti-terror programs, such as this article on federal monitoring of international financial records. Appearing on FoxNews Sunday this morning, Rep. King said:
To me, the real question here is the conduct of The New York Times. By disclosing this in time of war, they have compromised America's antiterrorist policies. This is a very effective policy. They have compromised it. This is the second time The New York Times has done this.
And to me, nobody elected The New York Times to do anything. And The New York Times is putting its own arrogant, elitist, left-wing agenda before the interests of the American people.
And I'm calling on the attorney general to begin a criminal investigation and prosecution of The New York Times, its reporters, the editors that worked on this, and the publisher. We're in time of war, Chris, and what they've done here is absolutely disgraceful. I believe they violated the Espionage Act, the Comint Act.
This is absolutely disgraceful. The time has come for the American people to realize and The New York Times to realize we're at war and they can't be just on their own deciding what to declassify, what to release.
If Congress wants to work on this privately, that's one thing. But for them to, on their own — for them to decide — for the editor of The New York Times to say that he decides it's in the national interest — no one elected them to anything.
Appearing with Rep. King, Senate Judiciary Committee Chairman Arlen Specter (R-PA) was unwilling to jump on the press prosecution bandwagon.
I don't think that the newspapers can have a totally free hand. But I think in the first instance, it is their judgment. The editor of The New York Times was quoted as saying that they had considered the government's request not to publish and had made their decision that it was in the public interest.
I'd be prepared to criticize The New York Times if I felt it warranted after knowing a lot more about the facts, but on the basis of the newspaper article, I think it's premature to call for a prosecution of The New York Times, just like I think it's premature to say that the administration is entirely correct.
The full transcript is here. Additional coverage is here.
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There's the rub: if we were really at war, Congress might find the courage to say so unequivocally. As it is, we have a 'declaration of war -- or something' that in the case of Iraq is so full of options and clauses and subparagraphs that it looks like a software licensing agreement. It's hardly to be wondered at if people don't take it seriously.
So here's a proposal for Congressman King: let's have a real declaration of war that says, in so many words, that there's somebody who we're at war with. Once we've taken care of Congress's lack of seriousness, we can do something about the NYT's lack of patriotism.
I find it very hard to believe that any program that was truly *secret* would have its existence confirmed by the Treasury Secretary and the Vice-President within hours of a newspaper's publishing an account of it.
Had the White House merely sniffed and said, "who believes what the Times prints?", then half the blogosphere would be vigourously attacking the Times for making stuff up.
(If Ron Suskind's new book is to be believed, Qaeda and its franchises had pretty much figured out by 2003 how &why to stay out of the world financial net; intel from those sources began drying up about then. So I suspect one motive for the leakers was their sense that little value remained in the system. But that's just my speculation at this point.)
Looks a bit like Star Chamber time if we let Chaney et al say "we get to investigate in secret" without any particular case-by-case justification.
Someone needs to come up with the specific classified facts supposedly improperly disclosed before "hang the NYT" makes any sense to me.
As to war status - when do we get to return to the status quo ante bellum? Three years? Ten years? Never?
Because now Osama may not put any more pizza orders on his Discover Card, of course.
I can see that a case can be made that the NYT disclosures have assisted terrorists, in that the disclosure of these programs may well make it more difficult for the US and allied governments to catch them. On the other hand, I'm not bothered by the NYT disclosures thus far. The war against terrorism is only one short term stage in a larger war, similar to the Cold War against Communism. America stands for a "Free Society" — an idea complex enough to deserve an essay in explanation, that I omit in futile hope of brevity. Islamist Terrorism has more than one potential way to destroy the American Free Society: either by direct destruction of important parts of the physical infrastructure and death of key people; or indirectly, by causing the society to cease being meaningfully "free". Even the Iranian President has noted that the distance between Islamofacism and Christian Theocracy is not that far.
The United States Constitution is a highly adaptable document; if it proves necessary that the idea of a Free Society fail and must be changed, it can be amended, even to a military dicatorship if need be. The American people can potentially make that choice... but if such choices are to be made, they should be made as a deliberate and informed choice. And the best tool to allow such choice is for information to be provided for a Free Press, to facilitate Open Debate.
The War on Terrorism has been portrayed by some as a conflict between Western and Islamic civilizations. It seems certain from where I sit to be exerting an marked evolutionary pressure on our "Free" society. As an SF fan, I feel compelled to note that in Larry Niven's "Known Space" series, the militaristic felinoid alien Kzinti race call Evolution "The Longest War". From that standpoint, the conflict from terrorism is only a smaller battle in the Longest War that the "Free Society" will fight: for survival. The NYT is a staunch fighter in that Longest War, and I believe more committed to insuring the long term triumph of the Free Society in that War than President Bush.
And I would remind people: The main sign of a Police State is that it is run for the convenience of the Police.
The Direction of the Press
The press too, of course, enjoys the widest freedom. (I shall be using the word press to include all media). But what sort of use does it make of this freedom?
Here again, the main concern is not to infringe the letter of the law. There is no moral responsibility for deformation or disproportion. What sort of responsibility does a journalist have to his readers, or to history? If they have misled public opinion or the government by inaccurate information or wrong conclusions, do we know of any cases of public recognition and rectification of such mistakes by the same journalist or the same newspaper? No, it does not happen, because it would damage sales. A nation may be the victim of such a mistake, but the journalist always gets away with it. One may safely assume that he will start writing the opposite with renewed self-assurance.
Because instant and credible information has to be given, it becomes necessary to resort to guesswork, rumors and suppositions to fill in the voids, and none of them will ever be rectified, they will stay on in the readers' memory. How many hasty, immature, superficial and misleading judgments are expressed every day, confusing readers, without any verification. The press can both simulate public opinion and miseducate it. Thus we may see terrorists heroized, or secret matters, pertaining to one's nation's defense, publicly revealed, or we may witness shameless intrusion on the privacy of well-known people under the slogan: "everyone is entitled to know everything." But this is a false slogan, characteristic of a false era: people also have the right not to know, and it is a much more valuable one. The right not to have their divine souls stuffed with gossip, nonsense, vain talk. A person who works and leads a meaningful life does not need this excessive burdening flow of information.
Hastiness and superficiality are the psychic disease of the 20th century and more than anywhere else this disease is reflected in the press. In-depth analysis of a problem is anathema to the press. It stops at sensational formulas.
Such as it is, however, the press has become the greatest power within the Western countries, more powerful than the legislature, the executive and the judiciary. One would then like to ask: by what law has it been elected and to whom is it responsible? In the communist East a journalist is frankly appointed as a state official. But who has granted Western journalists their power, for how long a time and with what prerogatives?
There is yet another surprise for someone coming from the East where the press is rigorously unified: one gradually discovers a common trend of preferences within the Western press as a whole. It is a fashion; there are generally accepted patterns of judgment and there may be common corporate interests, the sum effect being not competition but unification. Enormous freedom exists for the press, but not for the readership because newspapers mostly give enough stress and emphasis to those opinions which do not too openly contradict their own and the general trend.
Too late. Pat Fitzgerald already set that precedent.
Wow. This one paragraph succinctly describes the modern day press. And we the people are worse off for it.
It has been pointed out to me here that what was said by essentially five justices in the Pentagon Papers case, that prosecution by a paper (here, again, the NYT) of classified information could potentially be prosecuted, was dicta (and, therefore, not binding precedent - if there is such a thing for the Supreme Court). Nevertheless, it is highly suggestive of where at least that court would have come down if the case had been about prosecution instead of prior restraint. Esp. given which Justices seemed to agree with potential prosecution of the NYT, it is likely, at least in my view, that even more of the current Court would approve of such today.
That is apart from the fact that Plame was not an undercover agent.
Investigate and where possible, prosecute. I'd love to see that little moron Pinch Sulzberger frog marched out the Times Palace. Even though frogs don't march or walk, they hop. "Greasy" Joe Wilson got even that wrong, he meant duck walked. Ducks go quack, frogs go ribbit, easy to tell the difference.
Wouldn't it actually help our cause to give the enemy our failed intelligence?
Your post's misstatements of a few items of trivia just cries out for correction:
First, "frog-marched" is an old expression that Wilson used correctly. See the following link:
http://www.m-w.com/cgi-bin/dictionary?va=frog-marched
William Safire wrote a column on Wilson's use of this phrase.
Second, Plame was a covert agent, but had stopped running agents at the time of the leak (she was working on nuclear proliferation issues) and it was still illegal knowingly to identify her as such. My understanding is that Fitzgerald didn't prosecute anyone for knowingly disclosing her covert status because of the difficulty in proving that the leakers (Libby, Rove, and possibly Cheney) knew she had been a covert agent when they talked to the press.
Of course, I assume Bush will fire Rove, as he publicly vowed to do with regard to anyone who leaked Ms. Plame's name to the press.
That is, the Comint act makes what the Times did illegal. So for those who argue that frog marching the Times editor overturns
the First Amendment, well, he could argue in court that the law he broke is unconstitutional, but it seems to me that that is his only defense.
I haven't seen anything definitive that Plame was still covert at the time her identity was disclosed. If you have something to the contrary that is definitive, please give us the URL, etc.
I am also not sure of which statute you think someone should have been prosecuted under, or what statute you believe was violated. Please be specific, and, in particular, please point out why the special prosecutor did not indict anyone for what you consider to have been a crime.
I recommend that the US simply declare it cannot defend everyplace, and must prioritize, which we all know, and that any defense of 229 West 43rd St NYC is likely to be aborted by leaks.
So we will no longer attempt to do so.
Besides those who work there do not believe they are in any danger since there is no GWOT.
We are merely publicly acknowledging that we a "redeploying assets" to where they might more usefully be utilized.
We announce this because "...its the public right to know". It only incidental that Al Quedists now know they can plan operations against the facility at 229 West 43rd St New York without fear of interference. If some are in danger its the same as the NSA and SWIFT exposures.
(One reason we know the methodologies used is that they are disclosed as a matter of course in criminal prosecutions.)
The statute the potential violation of which Fitzgerald was assigned to investigate is called the Intelligence Identities Protection Act, 50 U.S.C. sections 421-426.
You can find the act discussed on Wikipedia and the full text on Cornell University's law website (which has the full text of all federal statutes).
Note, I didn't say anyone violated that statute. My understanding is the Fitzgeral concluded he couldn't prove that Libby knew that Plame had recently been a covert agent, or perhaps had learned of that fact from classified material, so that is why he declined to bring these charges; the same evidentiary problems held true for Rove, I presume (probably more so; Libby was at a CIA meeting, allegedly, where Plame was present, in the Directorate of Operations, and thus should have known she worked there).
If you read the statute, it makes it a crime for someone who learns of the identity of a covert agent through classified material to then reveal the identity of that agent. The statute defines "covert agent" to include someone who has recently been a covert agent (within last 5 years, served as such outside of the US). Ms. Plame clearly fell within the definition of a "covert agent" under the statute; indeed, that is why the CIA referred this to the DOJ for criminal prosecution (there would not have been any referral, otherwise, or the DOJ would have told the CIA she wasn't a protected person under the statute).
The statute was passed in the wake of Philip Agee's naming of CIA agents during the late 1970s, I believe, which supposedly caused the deaths of many CIA operatives and/or agents.
I've read that statute, and was curious whether that was the one that you were referencing. I think that we are in somewhat agreement of why there were no indictments under the law - both the fact that there is question as to whether Plame was actually covered by it then (given the ages of her kids, etc. - the fact that it was referred to the DoJ could have been political or could have been merely routine), and, probably more importantly, the problem of proving the requisite intent. Fitz would have had to prove that Libby/Rove, et al. both knew that she was covert (w/i the previous 5 years) and that the CIA was taking affirmative actions to conceal her intelligence relationship with the U.S. (and representing the CIA DO in meetings might seem to cut against that).
Could it be because political granstanding against an easy and favorite conservative target is more important than actually arguing why we should jail reporters for reporting the devastatingly obvious?
Thanks for bringing up the five year period on covert agents, overseas yet. As Plame wasn't covered by that provision she wasn't a covert agent, Which Victoria Toensing pointed out. And as long as we are dealing with understandings,it is my understanding that Toensing helped to author some of the requsite law.
No covert agent, no underlying crime. Maybe, despite your earlier posts, that's why he didn't press charges on the very issue he was named to investigate, after close to three years.
It is interesting that you would have Bush fire Rove after he was cleared, a peculiar sense of justice.
He won't criticize the Times too much, because he likes the good coverage it gives him.
I always understood freedom of the press to be similar to freedom of speech: You can say whatever you want, if you are prepared for the consequences in cases of slander, libel, bunco, etc.
I don't know what "negotiations" the WSJ was having w2ith Treasury, but I saw the story first there... I'd have to agree that the fixation with the NY Times shows the primarily political nature of the response to the story.