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An Odd Argument:

Philosophy professor Thomas Nadelhoffer writes:

Last week U.S. Senator Rick Santorum suggested that the individuals who leaked information about our domestic and international surveillance programs were traitorous (see here). Moreover, he claimed that, "If leaking this information is traitorous, then publishing it is also complicit with that activity." Just to be clear, his first claim is that the act of leaking information about these surveillance programs amounted to treason--presumably because it involved divulging information that was supposed to be kept secret (i.e., outside the eyes and ears of the public and beyond the scope of the law). His second claim is that the news agencies that published the information that had been leaked were themselves complicit with treason--presumably because they made the public aware of the information that should have been kept secret in the first place.

For now I want to set aside the tricky issue of determining precisely what complicity involves (see here for an earlier discussion). Instead I simply want to suggest that if one takes Santorum's reasoning seriously, then it appears that he, too, is being complicit with treason. After all, if he had not brought the subject up yet again, the issue would be getting less public attention. Instead, Santorum's comments make the issue even more visible--which in turn means that the secrets that were improperly leaked and published are more visible. And, based on his own reasoning, bringing attention to the secrets is treasonous. Hence, Santorum is a traitor who by his own standards "must be pursued aggressively." Luckily, I just moved to Pennsylvania. So, I get to play a part in kicking him out of office in the fall.

Let's set aside the technical definition of "treason" for now (since Prof. Nadelhoffer isn't really focusing on it), and the difficult First Amendment question of whether publishing leaked secrets may be properly criminalized. Let's instead focus on Prof. Nadelhoffer's argument, "if one takes Santorum's reasoning seriously, then it appears that he, too, is being complicit with treason."

Isn't there a pretty clear and sensible distinction between (1) publishing for the first time material that may help terrorists evade surveillance, and (2) "mak[ing] the issue even more visible" by commenting on this publication?

The former takes a secret and publishes it to the world, to the point that many terrorists will see it for the first time (I realize many of them might have already suspected it, but there's suspecting and there's knowing, especially knowing that involves knowing some details). The latter takes an already published secret -- one that's been in lots of high-circulation newspapers, and has presumably been seen by most terrorists -- and at worst reminds people of it. Perhaps the program will thus be "more visible" to some people as a result of Santorum's reminder; but I suspect that it will be materially more visible to terrorists, who have strong personal reasons for paying attention to the program quite without Santorum's further comments. Or is there some philosophical argument supporting Prof. Nadelhoffer's position that I'm missing here?

Drive By Comments:
And members of the Academy wonder why the public doesn't look up to them.

It must be anti-intellectualism! That's the ticket!
8.15.2006 5:31pm
fishbane (mail):
I believe the argument is that the effects of the actions of a publisher in publishing are a matter of making a set of facts more well known than they previously were is the crime publishers (may) be complicit in. If that is the case, Santorum's continuing "publishing" has the effect of making the facts even more well known than they were after the acts of the publisher, even if there is a difference in degree. This, the argument goes, if publisher A managed to alert 50% of the evil terrorists in the world, and Senator B manages to inform another 5% of them by ranting about the evil publisher, where do you draw the line?

(I'm not agreeing with the reasoning, merely offering my reading of the quoted passage.)
8.15.2006 5:43pm
Luke:
If we are to take seriously the idea that Al Qaeda gets its intelligence information from the New York Times and the Washington Post, an idea promulgated loudly and frequently by Santorum and his ilk, then I see no problem with what the professor is suggesting. It is at least as sensible as all the blather emanating from Santorum and those who take him seriously.
8.15.2006 5:45pm
Luke:
In fact, a more careful reading suggests that Sen. Santorum and Professor Nadelhoffer are making the exact same argument. They are saying that spreading classified information to a wide number of people is treasonous. Since it stands to reason that the Senator is reaching some number of people who didn't know the information before, he is just as treasonous as the NYT.
8.15.2006 5:55pm
frankcross (mail):
Well, bear in mind that the NYT on the financial surveillance issue did much the same. Most of the details they published were already available at the site of the Department of Treasury and elsewhere.
8.15.2006 6:04pm
Houston Lawyer:
He said Jehovah! Stone him! Stone him!
8.15.2006 6:05pm
Greedy Clerk (mail):
I think it's tongue-in-cheek and not meant to be taken seriously at all. Senator Santorum's belief that what the news agencies did amounts to treason is based on absurd reasoning; thus, the professor uses his own absurd reasoning to go after Santorum. I don't think there's any more to it than that.
8.15.2006 6:05pm
T. Gracchus (mail):
If the treason lies in making information public, there is no basis for supposing a line between NYT and Santorum as both publish the information. The only route out is that passage of time might make the information insignificant, but then one has the problem of more or less successful publication. (I.e., it would be treason for the NYT but not the St. Geore Gazette because no one much reads the Gazette.)
8.15.2006 6:07pm
non_Lawyer:
I think we need to draw a disctinction between logic and reason.
Professor Nadelhoffer may be using a logical argument, but I think it is not very reasonable, since you have to talk about something in order to prosecute it.
By Professor Nadelhoffer's logic, it would be impossible to ever prosecute treasonous leak-publishing, because to do so would mean informing a judge, jury, prosecution and defense team about the facts of the case, therefore making all of those parties "complicit" in the crime. And, since such a court case would be public information...well you see where the "logical" conclusion leads us.
By such logic, leak-publishing is "the perfect crime."
8.15.2006 6:09pm
cathyf:
To add a historical note in a sea of hypotheticals, during WWII the Chicago Tribune published the fact that the US had broken Japanese codes. The judgement of history is that this was motivated by partisan political differences between the Col McCormick and the president, and that McCormick printed this because they wanted the US to lose the war. A pretty straightforward case of treason-by-publication.

The interesting historical fact is that the Japanese believed their theories of racial superiority, and so they did not believe that the US was capable of breaking their codes, and didn't change codes. The government realized this, and that prosecuting the Trib would, in fact, have the huge effect of confirming the story to the skeptical Japanese. And so they did not prosecute.

So, does anybody really believe that the terrorists' reaction to reading to New York Times is to think that the US is too stupid to monitor financial transactions, and incapable of monitoring every single foreign phone call?

cathy :-)
8.15.2006 6:12pm
David Chesler (mail) (www):
Bright lines give philosophers problems. (Insert abortion issues.)

But there is a point where the horse has left the barn, where the ship has sailed, where the bell has been rung.

I'm pretty sure it's not when the CIA analyst tells his CIA boss what dots he's just connected (too early) and it's also not when my wife says to me at breakfast "Did you see what the Times just printed?!" (too late.)

I'd look to copyright law for notions of publication.
8.15.2006 6:17pm
Third Party Beneficiary (mail):
I think Santorum is an idiot, but if he's correct then Nadelhoffer would also appear to be correct. Since "treason" includes "giving aid . . . to the enemy," telling enemies where they can go to find formerly secret information would certainly seem to qualify as "aiding" them nearly as much as publishing the information in the first place.
8.15.2006 6:17pm
John Jenkins (mail):
Luke, are you suggesting that publishing classified information isn't harmful because Al Queda doesn't have access to the NYT or WaPo? That seems absurd, but then maybe you'd consider me one of Santorum's "ilk" and therefore non-sensible.

T. Gracchus, that's the *only* way out? What about the fact that after the first publication it's clearly no longer secret. Doesn't that allow you to draw a distinction?
8.15.2006 6:18pm
Anony-moose:
I can't find a transcript of Santorum's speech, so I can only speculate based on material that is actually quoted in any of the linked sources. Based on that limited source material, it appears that he himself has not actually published any intelligence information. From his comments, one could infer the existence and location of info from the NYT and then reference the Times to get the details, but it seems he mentions no programs or details himself.

The centredaily.com article linked through has mention of two programs, but I read that as an explanatory addition inserted by the journalist, not a report of specific commentary by Santorum.

Not that I'm agreeing with Santorum on this issue, but I stand with EV on thinking that Nadelhoffer is making an odd argument.
8.15.2006 6:27pm
Thorley Winston (mail) (www):
I think it's rather obvious that Senator Santorum was referring to the recent decision in
United States v. Rosen, in which the federal district court held that a recipient of classified information that was illegally leaked to them and knows it was illegally leaked to them and who retransmits it knowing that such retransmission could harm the United States can be prosecuted under the Espionage Act.

Nadelhoffer is simply being disingenuous in trying to pretend that there is no difference between publishing classified information under the decision in Rosen and publicly discussing the fact that this crime was committed without further retransmission of the classified information.

And this idiot is entrusted with teaching college students? Hopefully he'll be denied tenure before he does too much damage.
8.15.2006 6:30pm
Dan Hamilton:
The Leaker commits treason by telling Secret Information that will aid and help the enemies of the US. Especially in a time of War. The Reporter commits treason by getting the information and telling others. If he turns the Leaker or at the very least doesn't tell anybody the information then the Reporter has commited no treason. The chain continues on. Anyone who knowingly tells others Secret Information that will aid and help our enemies commits treason. This goes on until the information is FIRST published. Stopping the publication and limiting the number of people who know the information limits the Treason. Then talking about the information is no longer treason because it is no longer Secret Information.

Unless the Leaker takes out an add in the paper to publish the Secret Information all those in the chain from Leaker to first publication are guilty of treason.

The first does not protect the Media from charges of Treason. If CNN were to start reporting all troop movements in Iraq as the CNN reports saw them and all they were told about future movements that would be Treason. No ifs ands or buts. How is the publication of the NSA information any different? It is not as imediate a danger to our troops but it is still giving aid to our enemies.

The Leakers or the Media should have gone to Congressmen, the Justice department, etc. It should have NEVER been published.
8.15.2006 6:31pm
randal (mail):
Eugene: Nadelhoffer's point is that Santorum's reasoning lacks the concept of a distinction. You're inserting a distinction (between "first publishing" and other sorts of "commentary") in an attempt to save Santorum. Santorum didn't make a distinction; he implied that taking any action to further the dissemination of leaked secrets is complicit with treason. Nadelhoffer's point is that Santorum himself is doing just that. Nadelhoffer is obliquely pointing out the need for a line. Whether that line is "first leaked", "first published", or something else, it's clear that there needs to be some line, or else everything becomes treasonous.
8.15.2006 6:54pm
Brian Garst (www):
No, that's simply wrong. Santorum's point is quite clear, and there is an obvious line: taking information that one knows to be classified and sharing it with those who did not have access to it before and should not have access to it at all is treasonous. The person who gave the information to the Times clearly did this, as the Times neither had previous knowledge nor clearance. The Times, in giving the information to the general public, did the same thing, as members of the public neither had previous knowledge nor clearance.

Santorum, on the other hand, quite obviously did not do the same thing. The public did, by this point, have prior knowledge. Once it's made public it's done, it can't be made public again as the public already knows. The distinction exists, the line exists and this professors argument is silly beyond reason.
8.15.2006 7:06pm
Bruce Wilder (www):
What does "secret" mean, legally?

Does it mean known only to those duly authorized to know?

Or, does it mean it mean, not published/broadcast to the public at large?

Is there a conceptual distinction? Is there a practical distinction?

Santorum makes no such distinction, conceptually, and, practically, appears to complain only of publication, per se. So, Santorum can be rightly be criticized for promoting further broadcast/publication.
8.15.2006 7:10pm
SassKwatch:
Beig not of the legal profession, I will defer to those who are to debate the particulars of who is treasonous and at what point.

However, I do find rather amsing the notion that Bin Laden is obtaining secret US intelligence info via publicly published NYT articles.....at least from the printed paper edition. Does anyone really believe he's getting daily copies of same pitched on his cavestep by the local Pakistani paper boy? He *might* pick up such info via the NYT web site. But even more likely, he never heard a thing about it until some goofball like Santorum is seen ranting about treason on CNN (or some foreign news source).

And as someone else has already pointed out.....isn't it likely terrorist organizations already had to at least suspect financial transactions were regularly monitored.(?)

And I can't help but divert the conversation a 'titch' and chuckle (yet again) at the lunatic hypocrite that is Rick Santorum. He will rant forever and a day about that oh so horrid bastion of liberal traitors known to inhabit the desks of the NYT, but I suspect he never uttered a word when Bush administration officials were busy outing a CIA operative. Talk about treasonous.
8.15.2006 7:23pm
PersonFromPorlock:
Why not just repeal Article 3 Section 3 of the Constitution and decriminalize treason? I don't believe anyone's actually been tried for it since just after WW2, and once the official definition was out of the way we could all happily call any act we disapproved of 'treason'.

Not that we don't, anyway.
8.15.2006 7:30pm
Taeyoung (mail):
However, I do find rather amsing the notion that Bin Laden is obtaining secret US intelligence info via publicly published NYT articles.....at least from the printed paper edition. Does anyone really believe he's getting daily copies of same pitched on his cavestep by the local Pakistani paper boy? He *might* pick up such info via the NYT web site. But even more likely, he never heard a thing about it until some goofball like Santorum is seen ranting about treason on CNN (or some foreign news source).


Bin Laden's not exactly a caveman, you know. He spent time in Oxford or Cambridge, if I recall aright, and is probably quite familiar with the US as well. Furthermore, his subordinates are not cavemen either; nor is their education confined to madrassas. Many of them have lived and studied and worked in the US, and probably even in New York itself. So they are certainly aware of the New York Times, and as terrorists interested in the effect their campaigns have on the enemy (American) population, probably read through the Western media (incl. the NYT) regularly, this being one of the few means they have to evaluate their progress.

They probably don't get paper copies (although who knows? They might! -- they're an international terrorist organisation, after all, and Bin Laden himself doesn't have to look at the paper with his own eyes, if a local affiliate is on hand). But to suppose they don't get info over the web? Maybe I'm overestimating the basic level of competence in their organisation, but it would seem like common sense to me to at least read the news in the country you are trying to destroy.

On the other hand, regarding:
He will rant forever and a day about that oh so horrid bastion of liberal traitors known to inhabit the desks of the NYT, but I suspect he never uttered a word when Bush administration officials were busy outing a CIA operative. Talk about treasonous.
I think the underlying situation is rather murkier than you present it, but the response of many conservative pundits has been very like Nadelhoffer's, and similarly dishonest. The Wilsons appeared for all kinds of publicity shoots, like the famous Vanity Fair spread, and commentators may seize on this as evidence that Plame was not in fact covert, but my recollection is that all this happened after the original Novak column in which she was mentioned as working for the CIA. Not a secret once everyone knows.
8.15.2006 7:35pm
randal (mail):
Santorum's point is quite clear, and there is an obvious line: taking information that one knows to be classified and sharing it with those who did not have access to it before and should not have access to it at all is treasonous.

That line may be obvious to you, but it isn't obvious to me, and (at least in what's quoted) Santorum didn't articulate it. Nadelhoffer's pointing out that the debate needs to be about the line, not about "treason" or whatever, and points out (humorously) that Santorum, in not articulating a line, is indicting himself.

To me the obvious line is whether or not you're charged with keeping something secret. If I learn something that I have no obligation to keep secret, I should be able to publish it, unless my intention in doing so is to harm the US, which includes obvious recklessness. The difference is clear: the act of labeling something "classified" isn't sufficient. Such a policy encourages too much government secrecy. The question is simply the intention of the publisher.

You could claim that all Americans are obligated to keep stuff secret just because the government says to, but that would be highly totalitarian of you.
8.15.2006 7:44pm
Steve P. (mail):
I had comments relating to this, but others seem to have covered the bases pretty well. The difference between #1 and #2 of Prof. Volokh's examples is simply a matter of degree. Either you draw a line in the sand, or you subscribe to Santorum's logic, that everyone is responsible (which, by proxy, he then is).

Incidentally, if these reporters did commit treason (which I'd presume would be easy to prove -- they published just about all of the evidence against them), why isn't anyone indicted?
8.15.2006 8:10pm
randal (mail):
I would go further and observe that Santorum is intentionally avoiding debate about where to draw the line in order to strengthen his rhetoric. Once you admit that there is a line, i.e. that at some point it becomes ok to disseminate the secret, then the "treason" argument loses a lot of power. Reasonable people can disagree about where the line should be. When reasonable people disagree about something, it pretty clearly isn't treason. So Santorum needs to pretend that there's no line in order to stifle a debate which could undermine his emotionally-charged charge of treason. Nadelhoffer is calling him on it.

The upshot, Eugene, is that this is more about sparring rhetoricalists than about any serious political or philosophical ideas, so it's not something to worry about too much.
8.15.2006 8:28pm
Broncos:

Santorum's point is quite clear, and there is an obvious line: taking information that one knows to be classified and sharing it with those who did not have access to it before and should not have access to it at all is treasonous.

Why is this line obvious? This is a question of necessary and sufficient conditions; and while the above-listed conditions do seem necessary, I'm not sure that they are sufficient. Or, at least, not "obviously" so.

If you have classified information that Persons C should have access to, and that Persons T should not have access to; it is far from obvious that any revelation to Persons C is per se treasonous, even assuming that Persons T will also learn the information through the revelation. The sufficiency of yelling "Treason!" should also include, e.g. the precise information at issue and the probable damage that Persons T will cause having learned it; the timing of the information's release and probable effects of its release at that moment; etc.

Nor is it obvious that treasonous speech is a question that the people should trustingly cede to the government, grantingly it practically exclusive control over its judgment and acquiescing in the full power of its penal enforcement.
8.15.2006 8:29pm
Broncos:
I apologize for the long post, but here are excerpts from a troubling story this past February on the classification of information:


U.S. Reclassifies Many Documents in Secret Review
By SCOTT SHANE
WASHINGTON, Feb. 20 — In a seven-year-old secret program at the National Archives, intelligence agencies have been removing from public access thousands of historical documents that were available for years, including some already published by the State Department and others photocopied years ago by private historians.

The restoration of classified status to more than 55,000 previously declassified pages began in 1999, when the Central Intelligence Agency and five other agencies objected to what they saw as a hasty release of sensitive information after a 1995 declassification order signed by President Bill Clinton. It accelerated after the Bush administration took office and especially after the 2001 terrorist attacks, according to archives records.

But because the reclassification program is itself shrouded in secrecy — governed by a still-classified memorandum that prohibits the National Archives even from saying which agencies are involved — it continued virtually without outside notice until December. That was when an intelligence historian, Matthew M. Aid, noticed that dozens of documents he had copied years ago had been withdrawn from the archives' open shelves.

Mr. Aid was struck by what seemed to him the innocuous contents of the documents — mostly decades-old State Department reports from the Korean War and the early cold war. He found that eight reclassified documents had been previously published in the State Department's history series, "Foreign Relations of the United States."

"The stuff they pulled should never have been removed," he said. "Some of it is mundane, and some of it is outright ridiculous."

After Mr. Aid and other historians complained, the archives' Information Security Oversight Office, which oversees government classification, began an audit of the reclassification program, said J. William Leonard, director of the office.

Mr. Leonard said he ordered the audit after reviewing 16 withdrawn documents and concluding that none should be secret.

"If those sample records were removed because somebody thought they were classified, I'm shocked and disappointed," Mr. Leonard said in an interview. "It just boggles the mind."

...


Among the 50 withdrawn documents that Mr. Aid found in his own files is a 1948 memorandum on a C.I.A. scheme to float balloons over countries behind the Iron Curtain and drop propaganda leaflets. It was reclassified in 2001 even though it had been published by the State Department in 1996.

Another historian, William Burr, found a dozen documents he had copied years ago whose reclassification he considers "silly," including a 1962 telegram from George F. Kennan, then ambassador to Yugoslavia, containing an English translation of a Belgrade newspaper article on China's nuclear weapons program.

Under existing guidelines, government documents are supposed to be declassified after 25 years unless there is particular reason to keep them secret. While some of the choices made by the security reviewers at the archives are baffling, others seem guided by an old bureaucratic reflex: to cover up embarrassments, even if they occurred a half-century ago.

One reclassified document in Mr. Aid's files, for instance, gives the C.I.A.'s assessment on Oct. 12, 1950, that Chinese intervention in the Korean War was "not probable in 1950." Just two weeks later, on Oct. 27, some 300,000 Chinese troops crossed into Korea.

Mr. Aid said he believed that because of the reclassification program, some of the contents of his 22 file cabinets might technically place him in violation of the Espionage Act, a circumstance that could be shared by scores of other historians. But no effort has been made to retrieve copies of reclassified documents, and it is not clear how they all could even be located.

"It doesn't make sense to create a category of documents that are classified but that everyone already has," said Meredith Fuchs, general counsel of the National Security Archive, a research group at George Washington University. "These documents were on open shelves for years."

The group plans to post Mr. Aid's reclassified documents and his account of the secret program on its Web site, www.nsarchive.org, on Tuesday.

The program's critics do not question the notion that wrongly declassified material should be withdrawn. Mr. Aid said he had been dismayed to see "scary" documents in open files at the National Archives, including detailed instructions on the use of high explosives.

But the historians say the program is removing material that can do no conceivable harm to national security. They say it is part of a marked trend toward greater secrecy under the Bush administration, which has increased the pace of classifying documents, slowed declassification and discouraged the release of some material under the Freedom of Information Act.

Experts on government secrecy believe the C.I.A. and other spy agencies, not the White House, are the driving force behind the reclassification program.

"I think it's driven by the individual agencies, which have bureaucratic sensitivities to protect," said Steven Aftergood of the Federation of American Scientists, editor of the online weekly Secrecy News. "But it was clearly encouraged by the administration's overall embrace of secrecy."

National Archives officials said the program had revoked access to 9,500 documents, more than 8,000 of them since President Bush took office. About 30 reviewers — employees and contractors of the intelligence and defense agencies — are at work each weekday at the archives complex in College Park, Md., the officials said.

...
8.15.2006 8:41pm
John Burgess (mail) (www):
Taeyoung: I think you're confusing Bin Laden with either other members of his family or other members of his group. Bin Laden has not visited the US and his experience in Europe seems to be limited to a skiing vaction or two in Switzerland or Austria. He never completed university in Saudi Arabia--nor particularly studied Islamic studies, for that matter.

Others in Al-Qaeda, starting with Al-Zawahiri, Azzam, and others among the "Afghan Arab" leadership do/did hold foreign advanced degrees. Mullah Omar, the theorist of the Taleban and Al-Qaeda, was a graduate of a Pakistani Islamic university.

The question of the importance of a major Western publication publishing what Al-Qaeda may have suspected was going on all along is a good one. The issue is confirmation of those suspicions.

You can think the other guy is probably doing something, but until you know--for certain--that he is, your countermeasures are going to be more lax. Nothing focuses attention like the fact that you're a target, even if you think you should be a target. If the publication gives details that you may not have suspected, then fresh information is truly useful.
8.15.2006 9:26pm
ray_g:
Bruce Wilder asks, "What does "secret" mean, legally?"

There are levels of classification, the most common, in ascending order, Confidential, Secret and Top Secret. In order to properly have access, one must be cleared to the level of the information AND have a "need to know". In practice, the "need to know" provision isn't adhered to as well as it perhaps should be.

It may help to remember that the common, dictionary meaning of the word "secret" really isn't used in the DOD, to avoid confusion with the classification level "Secret". Protected information is referred to as "classified".

This may seem kind of arcane, but I hope it helps.
8.15.2006 9:31pm
David Walser:
This debate illustrates what many in the public find distasteful about academics (and lawyers): the inability to make simple (moral) distinctions without the need to count the number of heavenly creatures fox-trotting on the head of pin. As many have said, Santorum's point was clear. Could he have been more explicit? Of course, but the man wasn't writing an article for the law review nor was he writing an article for publication. He was speaking to a large audience. Speeches are properly judged by different standards than are published articles. I doubt anyone in Santourm's hearing needed to use an electron microscope to exam the intricate details of his argument. Faulting him, in that forum, for not detailing exactly where the "line should be drawn" or for a failure to list all the appropriate exceptions to what he otherwise considers a crime, is just plain silly. If Prof. Nadelhoffer was simply trying to call attention to the need for some clarity in where the line ought to have been drawn, he choose a silly way of making this argument. Instead of trying to ridicule Santorum for not doing what would have been inappropriate in a speech, Prof. Nadelhoffer could have simply pointed out that not all publishing of classified material is necessarily criminal. That would have been a worthy discussion. Instead, by trying to ridicule Santorum, even fair minded people like EV a led to wonder what could have gone wrong with his mental apparatus.
8.15.2006 10:18pm
ray_g:
This statement is just plain wrong, and gets close to conspiracy theory territory

"supposed to be kept secret ... and beyond the scope of the law"

There is a large body of laws, regulations, and rules about how information should be classified (and declassified). Now, I'm not saying these are written well or always followed. I'll be the first to admit that there is a lot of unnecessary (and perhaps even malicious) classification going on, but making something classified does not put it "beyond the scope of the law".
8.15.2006 10:38pm
ray_g:
Let me be clear: I'm not saying that there is a huge amount of classification to hide things from the public. Most of the over classification is because that is how the incentives work. If you don't classify something that should have been classified, there is possibly big trouble from your bosses, and in the worst case, death of our soldiers. If you classify something that shouldn't be, not much happens. So, it is the natural impulse that when it isn't clear, to err on the side of classification. Believe it or not, most people who work with this stuff would rather not have it classified, because of the added hassle of how it is to be handled, stored, etc.
8.15.2006 10:54pm
randal (mail):
Well, there you have it, David. Righties get all bent up when lefties use humor to make a point. (Witness Eugene's tirade against Bushisms.) It's ridicule! Lefties hate it when righties use fear and hyperbole. It's manipulation!

In this case, neither of two men are engaged in serious dabate, they're just scoring rhetorical points in their preferred style.
8.15.2006 10:57pm
Lev:
Re the Chicago Tribune during WW2. Apparently no one picked up the story and ran it on a wire service, and the Japanese intelligence organizations used the NYTimes alone among newspapers. Prosecuting the Tribune would have indeed alerted the Japs. See: Combined Fleet Decoded.
8.16.2006 12:55am
Lev:
Maybe it's just me, but it seems to me that:

]For now I want to set aside the tricky issue of determining precisely what complicity involves

turns Nadehoffer's supposed analysis into stupidity. After all, "what complicity involves" is the crux of the matter.

If some unconvicted criminal leaks truly secret national defense information to a reporter, and the reporter then publishes that information that was leaked, then by any reasonable definition of "complicity" the reporter is complicit in the treasonous publication.

But for Santorum to be complicit must require, not that he refers generally to reporters disclosing truly secret national defense information, but rather that in his discussion he refers to the truly secret national defense information that was actually, treasonouly transmitted to the reporter and then published.

]For now I want to set aside the tricky issue of determining precisely what complicity involves

Without addressing that tricky issue, we merely have a kook left Santorum hating perfessor trying to look cute.
8.16.2006 1:03am
Anono (mail):
Nadelhoffer is just being a typical too-clever-by-half smart***. (Which, not incidentally, is what must have attracted Brian Leiter to allow Nadelhoffer to be a guest blogger). As various folks have pointed out above, it's quite obvious that there's a vast difference between 1) the most famous newspaper in the world publishing previously-unknown details of an intelligence program, and 2) someone complaining about 1. If we treat both incidents the same, then no one could ever complain about intelligence leaks (because in doing so, they would supposedly draw attention to the leak).

One would expect a philosophy professor to be smart enough to tell the difference here. It's only because Nadelhoffer is such a knee-jerk liberal that his critical thinking skills fly out the window.
8.16.2006 1:38am
Teddy (mail):
Consider an analogy. NYT publishes a libellous article that seriously harms X's reputation. Y publicly criticizes NYT for this, but then X sues Y on the grounds that Y's mere discussion made the libellous article known to more people and that this additionally damaged X's reputation. Wouldn't Nadelhoffer consider X's complaint ridiculous? If yes, doesn't it look similar to his own complaint against Santorum?
8.16.2006 2:55am
Mike G in Corvallis (mail):
I wonder whether Professor Nadelhoffer would be able to draw any distinction between the crimes of murder and mutilating a corpse.
8.16.2006 3:46am
Duncan Frissell (mail):
Santorum didn't publish any "facts" save vague statements that the Times divulged secrets about tracing terrorist money transfers and government pen registers. Not much info.

If I say, "The NYT published the sailing times of troopships" I am not disclosing any secrets. Generally, at law, secrets once released no longer count as secrets.
8.16.2006 7:39am
Random3 (mail):
I think David Walser has the right of it. Many of you seem incapable of making obvious distinctions. This one isn't hard. The horse has left the barn. You should have no difficulty seeing the difference between disclosing national security secrets and talking about that disclosure after it has occurred.

And there is a failure of imagination being exhibited in some of these posts. People can't imagine how Osama, sitting in his cave, could possibly get important intelligence information from the NYT. Really...how hard is it to imagine that someone in his network just picks up the phone and calls him, or calls whomever in his network is responsible for the movement of money. "Hey Mohammed, perhaps we should stop using this account - it looks like the Americans might be tracking it."

During the Cold War, the Soviets just loved how much great information was published in our media. But we had no similar source of information on their capabilities and intentions - their media was too tightly controlled by the state. I suppose, for some of you, it would hard to imagine what would have been the consequences for the Pravda editor who even attempted to publish this sort of information. As it happens, we were able to get that information via other means, sometimes at great risk. And back then anyway there was no doubt whatsoever, in my mind at least, that to leak such information to the press meant you were breaking the law. It occasionally happened anyway then, as now. But these people are breaking the law.

I don't mean to ridicule. It is hard for most people to imagine the weirdness associated with criminal networks, covert ops, intelligence gathering, warfare, etc. It's hard to imagine all kinds of nasty things, because they don't usually occur here in our comfortable life in the U.S. It's hard to imagine committing genocide, or mass murder, or even not having enough food to eat or clean water to drink. It's hard to imagine living in a culture that celebrates suicide. All these things are hard for people here to imagine. But they happen. Before 9/11 it was hard to imagine crashing airplanes into tall buildings - have we forgotten? Do we understand what is at stake here?
8.16.2006 10:06am
abb3w:
What about the hypothetical case of a Secret ("NSA has deployed Thiotimoline-based surveilance against the entire staff of the NY Times") leaked via a small obscure blog; if the government shuts it down before anyone reads the blog, is it still a leak? What if one person gets a copy of it, and then mirror the original "leak" onto a major blog; is the major blog also "leaking", or spreading something already known? What if the mirror is only by posting in the comments of a major blog, such as the Volokh conspiracy?

Where do you draw the line as to whether a leak is widely spread enough to be "leaked", and when do you say that further disclosure is unlikely to do further harm?

(Excuse me while I go avoid talking to the nice people from the NSA and FBI at my door....)
8.16.2006 11:16am
Third Party Beneficiary (mail):
I find it cute that so many of the same people who shriek hysterically about the press wanting to occupy a privileged place now seek to put the press in a privileged place by making intial publication by a recipient of leaked information treason but insist that it's A-OK to guide people to that publication for purposes of finding the leaked information. For those of you who fantasize about executing NYT editors consider these hypotheticals: (A) A CIA agent forgets a folder full of classified documents on park bench, a homeless man finds them and takes them to a newspaper that publishes an article about them - has the newspaper committed treason? (B) A CIA agent forgets a folder full of classified documents on park bench, a conspiracy theorist finds them, scans them and posts them on his website, where they are downloaded by thousands of people, including a newspaper reporter who subsequently writes an article about them - has the newspaper committed treason? (And what about the thousands of people who have downloaded the documents and retransmitted them?) (C) An assistant Defense Secretary goes to a Beltway party, gets drunk, and blabbers about a classified program to a dozen different people, one of whom happens to be a syndicated columnist, and who subsequently writes about the classified program in his column which is run by 300 different newspapers - have all the newspapers committed treason?
8.16.2006 11:35am
Thorley Winston (mail) (www):
However, I do find rather amsing the notion that Bin Laden is obtaining secret US intelligence info via publicly published NYT articles.....at least from the printed paper edition. Does anyone really believe he's getting daily copies of same pitched on his cavestep by the local Pakistani paper boy? He *might* pick up such info via the NYT web site. But even more likely, he never heard a thing about it until some goofball like Santorum is seen ranting about treason on CNN (or some foreign news source).


Really? Thank God, and to think all this time after hearing about the recently thwarted attacks in London, I was worried that there might be other terrorists in the world other than UBL out to attack us. I'm glad to have your assurances that it's just one guy living in a cave somewhere.
8.16.2006 11:49am
Thorley Winston (mail) (www):

I find it cute that so many of the same people who shriek hysterically about the press wanting to occupy a privileged place now seek to put the press in a privileged place by making intial publication by a recipient of leaked information treason but insist that it's A-OK to guide people to that publication for purposes of finding the leaked information.


Yes, it's almost as if some people realize that there's an obvious distinction between someone who knowingly publishes illegally leaked classified information knowing that it could harm the United States and a duly elected member of our government calling for the prosecution of someone who does it without further retransmitting the illegally leaked information.
8.16.2006 11:52am
tnadelhoffer:
Several people in this comment thread have claimed that I suggested that what Santorum is doing by talking about the published 'leaks' is the same thing the people who published the leaks have done. Nowhere have I suggested this. Here is an example of the sort of thing I have said over and over again in the comment thread concerning the post:

As such, I was NOT saying Santorum is guilty of treason (something I have already clarified earlier in this comment thread). I am suggesting that given Santorum's use of complicity, he, too, ends up being complicit with treason--albeit to a less degress than the people and agencies he criticizes. It turns out that once we let the notion of complicity out of the bag, it often extends further than we had anticipated. What I have asked for all along is for someone to provide an account of complicity that would allow Santorum to blame the NYT (as well as other news organizations) for being complicit with treason that does not at the same time end up extending to cover his own complaint as well. To date, no one has bothered to do so.

So rather than pointing out my political affiliation or my profession or other irrelevant personal attributes, perhaps someone could (a) get to work on coming up with an accont of complicity that will do the job, and (b) remember that the post was supposed to be tounge-in-cheek (just look at the title for crying out loud). I don't mind being called names (indeed, it goes along with the territory), but it would be nice if people would attend to what I have actually said (and why I said it) before engaging in personal attacks (kook, knee-jerk liberal, idiot, etc.). Either way, I have enjoyed many of your comments--especially from those of you who bothered to read what I said and appreciated the satirical nature of the original post.
8.16.2006 12:17pm
Thorley Winston (mail) (www):
Several people in this comment thread have claimed that I suggested that what Santorum is doing by talking about the published 'leaks' is the same thing the people who published the leaks have done.


Not really. Most of us realize that you weren't trying to make a serious argument and instead were disingenuously trying to blur a rather clear distinction between someone who knowingly publishes illegally leaked classified information (what Santorum said was complicit in the activity regarded as treasonous) and someone who calls for prosecuting the leaker and possibly the people who retransmitted the classified information that they know was illegally leaked without retransmitting the classified information.

As far as your post being satirical, satire is usually clever or funny. Yours was neither.
8.16.2006 12:28pm
Taeyoung (mail):
John Burgess:
Taeyoung: I think you're confusing Bin Laden with either other members of his family or other members of his group. Bin Laden has not visited the US and his experience in Europe seems to be limited to a skiing vaction or two in Switzerland or Austria. He never completed university in Saudi Arabia--nor particularly studied Islamic studies, for that matter.

You may be right. I was remembering the photo showing Bin Laden at Oxford in the 70's -- it's up on his wikipedia entry, but qualified with "purportedly."
8.16.2006 12:33pm
Third Party Beneficiary (mail):
"Yes, it's almost as if some people realize that there's an obvious distinction between someone who knowingly publishes illegally leaked classified information knowing that it could harm the United States and a duly elected member of our government calling for the prosecution of someone who does it without further retransmitting the illegally leaked information."

Yes, except that Santorum clearly doesn't, since the NYT publication at issue here provided no more "classified information" that could "harm the United States" than a Discovery Channel special on fingerprinting aids and abets murderers by letting them know that they should wear gloves to avoid detection.
8.16.2006 1:01pm
MnZ (mail):
This issue causes many people to make the most deranged statements. On the one hand, some people are implying that a good portion of the press corp should be hauled in on espionage charges. On the other hand, other people are implying that the press should be immune from espionage charges.

Does anyone actually believe either position?
8.16.2006 1:49pm
eddie (mail):
I agree with the commenters who state that using complicity to mean conspiracy is a very slippery slope.

But when dealing with treason, one must be very careful.

Should Mr. Santorum's draconian view of treason be applied to the release of the Abu Ghraib pictures?

Did the release of the fact that the NSA was doing whatever it was doing atcually rise to the level of providing any significantly useful information to our enemies? Would there have been a release if this surveillance had been blessed by the FISA court? Would a movie like "Enemy of the State" be treasonous for simply implying that such methods are not only available but being used?

Saying this is a post 9-11 world is simply a cop-out. (To one of the previous comments--someone did imagine using planes as weapons prior to 9-11; such a suggestion was ignored.) Putting on monochromatic glasses to make figuring out the complexity of the modern world simpler does not that world any simpler: it merely makes it easier to blame others for one's inability to figure it out.
8.16.2006 3:56pm
Dan Hamilton:
Should Mr. Santorum's draconian view of treason be applied to the release of the Abu Ghraib pictures?

No but Anti-American bias should be applied to the release of the Abu Ghraib pictures. The Army was ALREADY looking into this and had been for awhile. THE ONLY reason for publishing the pictures was to hurt the US and the Army. The continued publishing of the pictures almost every day for months was designed to hurt the administration, the Army, and the US.

Remember these were the same people that STOPPED showing all the 9/11 pictures because they didn't want to inflame Americans but had NO PROBLEMS continually showing the Abu Ghraib pictures to continually inflame our enemies and attack the Administration.

No printing the Abu Ghraib pictures was not treason but it was ANTI-USA and the people that did it should be shunded.
8.16.2006 4:27pm
randal (mail):
And back then anyway there was no doubt whatsoever, in my mind at least, that to leak such information to the press meant you were breaking the law.

We all agree that the leaker is breaking the law. The question is whether the press is breaking the law, and if so, what the standard is for deciding that the press stepped over the line.

The Santorum defenders are saying that the line is "obvious", but haven't been able to articulate it.
8.16.2006 6:26pm
MnZ (mail):
The Santorum defenders are saying that the line is "obvious", but haven't been able to articulate it.

I don't consider myself a Santorum defender, and I don't know what the line should be. However, I would point out that the question are also:

-Should people always be allowed to disseminate information that was leaked to them...just because it was leaked to them?

-If not, should the press get special previleges regarding disseminating leaked information?

-If so, what constitutes the "press"?
8.16.2006 7:30pm
David Walser:
[T]he NYT publication at issue here provided no more "classified information" that could "harm the United States" than a Discovery Channel special on fingerprinting aids and abets murderers by letting them know that they should wear gloves to avoid detection.

So, Third Party Beneficiary, can you share some insight into you background so we can better access your ability to make this judgment? Members of my family, who used to work in signal intelligence, think that the NYT's articles may have done a lot to help the terrorists. Based on their testimony to Congress, so do the government experts who are currently working in the area. Can you give us any idea why we should give your view more weight than those whose expertise is more readily apparent?
8.16.2006 7:35pm
randal (mail):
IMHO:

-Should people always be allowed to disseminate information that was leaked to them...just because it was leaked to them?
Clearly not. But the question of criminality doesn't hinge on whether the government puts a "secret" sticker at the top of the document. It hinges on the nature of the information and the intent of the publisher.
8.16.2006 8:23pm
dick thompson (mail):
Randal,

Your posting makes absolutely no sense. If I follow your line of reasoning, the recipient of the information has no legal requirement to attempt to keep anything secret and can just put the information about anywhere and suffer no repercussions. That means that all anyone spying for an enemy of the country has to do is pass the information on to anyone else who can then hand the information over to the enemy and the only one who could suffer would be the initial spy and he is keeping his head down. That is total nonsense. You would allow anyone to pass on troop movements, battle plans, weapons secrets, product secrets and have no repercussions. Total nonsense!! We might just as well hand over the running of the country to our enemies as we would not be able to keep secret anything that would protect the country from them.
8.16.2006 9:26pm
dick thompson (mail):
As for the point by the professor that if the case were brought into court, then the information would be public anyway, that is total nonsense also. There are courts and judges and lawyers who are cleared to handle security items just as there are psychiatrists and medical practitioners and others who are cleared to deal with people who have security clearances. In fact there is a whole sub-culture which deals with people who have security clearances so that the information they hold can be protected from the enemies of the country. The government would be idiots not to have them out there. In fact, there are congress critters who are cleared for all this stuff. I think that there are even congress critters who are known to be such leakers that they are not told the security stuff for that reason. That is why I hope the government goes through with this case. They should have done so with Sandy Burger when he stole those documents from the National Archives.
8.16.2006 9:31pm
randal (mail):
dick - not at all. As I said, the nature of the information and the intent of the publisher are what should determine criminality.

If the nature of the information is that it's troop movements, that's obvious recklessness. You can sometimes infer the intent of the publisher just from the nature of the information: no publisher could deny subversive intent in publishing something obviously imminently dangerous to Americans.

You could show subversive intent in other ways, such as "providing the information directly to the enemy" as in your example.

I object to the idea that the government can make it illegal to publish anything just by putting a sticker on it. That's all. You have to look beyond the sticker if you're charging publishers with treason.
8.16.2006 10:56pm
Dave Hardy (mail) (www):
We may all be guilty of misprison of treason, 18 USC 2382:

"Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both."

Interesting that it refers to the US as plural (as does one of the civil war amendments, I forget which... the usage was frequent before the civil war), and apparently was drafted in an age in which the average person disclosing something to the president was actually seen as feasible. I rather suspect that if one showed up at the White House, explaining that you had a legal obligation to inform the President of an act of treason, you'd be in a padded cell for 72 hours of observation, and merit a few megabytes in a watch list.
8.17.2006 1:56am