Rep. King Wants NYT Prosecuted:

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.

Bruce:
"[N]o one elected them to anything." Why does election matter? Presumably King would have the same problem with an elected official making the same disclosures.
6.25.2006 9:37pm
cac (mail):
Is this the same King who is something of an expert in supporting terrorism? Putting this bloke on the Security Committee has always seemed to me to be proof positive against the candard that Americans don't do irony.
6.25.2006 9:59pm
PersonFromPorlock:

The time has come for the American people to realize and The New York Times to realize we're at war...

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.
6.25.2006 10:18pm
Anderson (mail) (www):
Bizarre. Whatever happened to prosecuting, you know, the leakers? ... the people whose job descriptions included "keeping secrets"? As opposed to prosecuting the guys whose job description includes "publishing secrets"?

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.)
6.25.2006 10:28pm
c.f.w. (mail):
Since when does law enforcement (e.g. searches after the Bali bombing) get treated as classified?

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?
6.25.2006 10:51pm
RMCACE (mail):
I still fail to see how any of the NYT disclosures have assisted the terrorists. I am pretty sure terrorist organizations, if they had access to the U.S. Code, realized a long time ago that the government could get secret access to their phones, documents, and records. Access to all of this is available through the FISA Court process. How does this disclosure help the terrorists?
6.25.2006 10:54pm
Anderson (mail) (www):
I still fail to see how any of the NYT disclosures have assisted the terrorists.

Because now Osama may not put any more pizza orders on his Discover Card, of course.
6.25.2006 11:46pm
Terrorist Bob (mail):
I am a terrorist, and I read the New York Times daily. I must say that the TimesSelect firewall has made it very difficult to keep up with saucy quipmistress Maureen Dowd, but in any event, the front page is a veritable bounty of national security secrets and operational details. If it were not for the New York Times, my cell would hav already given up hope, disbanded, and snuck into the country via Mexico to drive taxi cabs in New York.
6.26.2006 12:48am
abb3w:
Aside from the symptomatic warning signs of obsessive secrecy, I'm not overly bothered by the FollowTheMoney revelation, unlike the Wiretapping or Prison stories previously reported; YMMV.

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.
6.26.2006 1:05am
Tocqueville:
Excerpt of Address by Alexander Solzhenitsyn at Harvard Class Day Afternoon Exercises, Thursday, June 8, 1978:

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.
6.26.2006 4:16am
raj (mail):
Either King has never read the 1st Amendment, or, if he has, he doesn't believe that it means what it says. What part of "Congress shall make no law abridging freedom...of the press" does he not understand?
6.26.2006 5:36am
Federal Dog:
"Looks a bit like Star Chamber time if we let Chaney et al say "we get to investigate in secret"


Too late. Pat Fitzgerald already set that precedent.
6.26.2006 8:01am
Kevin P. (mail):

Excerpt of Address by Alexander Solzhenitsyn at Harvard Class Day Afternoon Exercises, Thursday, June 8, 1978:
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.


Wow. This one paragraph succinctly describes the modern day press. And we the people are worse off for it.
6.26.2006 8:07am
Bruce Hayden (mail) (www):
Raj, no, the 1st Amdt. does not give the press the right to publish anything they want. You may read it that way, but there is no evidence whatsoever that the courts do, and, in the final analysis, that is what counts.

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.
6.26.2006 9:58am
Gary McGath (www):
Congress is simply continuing the dismantling of freedom of speech and the press which it's been pursuing for some time. The statement, "And to me, nobody elected The New York Times to do anything", is very significant. It's a direct statement that only the government can decide what we are permitted to know, even when the government is breaking the law.
6.26.2006 10:40am
johnt (mail):
Valerie Plame, the NSA surveillance, the financial tracking leak, renditions, What do these stories not have in common?
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.
6.26.2006 10:44am
SeaLawyer:
The NY Times is nothing more than an Intelligence Service for terrorists. So freedom of the press does not apply in their case.
6.26.2006 11:19am
eddie (mail):
Time for a little irony:

Wouldn't it actually help our cause to give the enemy our failed intelligence?
6.26.2006 1:30pm
MnZ (mail):
It seems to me that the NYT was unnecessarily specific in its story. Instead of identifying SWIFT, couldn't they have used broad descriptions to explain what was going on? The problem with being specific is that it provides useful information to the adversary. Now, terrorist know that they should avoid SWIFT related transactions.
6.26.2006 3:04pm
Christopher Cooke (mail):
Johnt:

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.
6.26.2006 4:12pm
Joe7 (mail):
The joke here is that anyone with two brain cells to rub together knew that the government was doing this. All this handwringing and pretended offense is absurd. Not only did Bush openly state many times that terrorists would be tracked through banks, there have been dozens of published stories of success about doing just that (wherein the FBI rightly crows about its success.)
6.26.2006 4:27pm
chrismn (mail):
The Comint act, section 798 reads
Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information . . . concerning the communication intelligence activities of the United States . . . shall be fined not more than $10,000 or imprisoned not more than ten years, or both [emphasis added].

(from Weekly Standard article)

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.
6.26.2006 5:32pm
SmokeandAshes (mail):
Yeah Joe but they didn't know how or where these program were run. Now, thanks to the NYT who seem to think that freedom of the press means that they can publish anything consequences be damned, the terrorist know exactly how we were tracking them. Please spare me the assertion that they already knew. There is no evidence that they knew the specifics.
6.26.2006 5:36pm
Bruce Hayden (mail) (www):
Christopher Cooke

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.
6.26.2006 6:15pm
Stan Peterson (mail):
I don't know if prosecuting the NYT is worthwhile but justice should always be proportional.

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.
6.26.2006 6:17pm
Joe7 (mail):
SmokeandAshes; Actually we did already know the methodologies used. They have been documented in numerous court cases and through various television documentaries including Nova and Frontline. While the specific program under discussion was not mentioned, anyone who has bothered to be even partly educated about the international banking system would know exactly how this tracking is done.

(One reason we know the methodologies used is that they are disclosed as a matter of course in criminal prosecutions.)
6.26.2006 6:49pm
Christopher Cooke (mail):
Bruce:

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.
6.26.2006 6:53pm
Bruce Hayden (mail) (www):
Christopher Cooke

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).
6.26.2006 10:06pm
kormal (mail) (www):
Why the fixation on the NYT? Didn't the Wall Street Journal and the L.A. Times publish the exact same thing?

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?
6.26.2006 10:14pm
johnt (mail):
Christopher Cooke, My turn to cry out. When you see a frog walk give me a post will you? A definition of a physical impossibility is interesting but it still won't make the frog walk instead of hop.
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.
6.27.2006 12:10am
SmokeandAshes (mail):
Joe - I belive that Treasury Secretary Snow answers your assertion that "everyone knew". In an open letter to Bill Keller from the Secretary of the Treasury, the Treasury Secretary said


You have defended your decision to compromise this program by asserting that "terror financiers know" our methods for tracking their funds and have already moved to other methods to send money. The fact that your editors believe themselves to be qualified to assess how terrorists are moving money betrays a breathtaking arrogance and a deep misunderstanding of this program and how it works. While terrorists are relying more heavily than before on cumbersome methods to move money, such as cash couriers, we have continued to see them using the formal financial system, which has made this particular program incredibly valuable.
6.27.2006 12:18am
SmokeandAshes (mail):
Kormal - The NYT is taking the heat because they broke the story. The Wall Street Journal was in negotiations with Treasury when the story ran. The LAT ran the same story as the NYT, I believe it had the same authors. This is a case of he who publishes first takes the most heat.
6.27.2006 12:22am
Billll:
Bringing Specter out makes the event bipartisan.
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.
6.27.2006 12:36am
alex r:
SmokeandAshes --

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.
6.27.2006 12:05pm
SmokeandAshes (mail):
Alex - You are correct I mispoke when I said that the WSJ was in negotiations with the government. The government was talking to them because the government had decided to make public a few details because they couldn’t deter the Timeses. So there doesn’t seem to be much point in banging the Journal for reporting what a government spokesman decided to tell them in response to the imminent publication of the programs’ details:


U.S. officials agreed to discuss the program after concluding that knowledge of its existence was emerging and public disclosure was inevitable. Aspects of it have recently been declassified. Mr. Snow called the disclosure “regrettable.” Mr. Levey said he fears that “sophisticated terrorists will now stop using the system in ways we have access to, or will take extensive precautions to hide their identities, and that is really a loss.”

6.27.2006 12:48pm