WSJ on Espionage Act Case:

The Wall Street Journal editorializes on the Espionage Act prosecutions of two former AIPAC employees.

The prosecution of government "leaks" that began with the Valerie Plame case has already sent one reporter to jail and limited the ability of all journalists to protect their sources. But now things are getting worse, as the Justice Department is prosecuting a pair of lobbyists for doing what journalists do every day.

While decrying the prosecution, the WSJ avoids beatifying the press for its actions.

We realize that few of our readers have much sympathy for the press these days, and with ample cause. As we recently wrote after the Swift terror financing disclosure by the New York Times, we think the press sometimes has an obligation not to publish everything it knows. By revealing security secrets for no apparent reason other than its own partisan and ideological agenda, the Times has invited a government backlash against the entire press corps.

But these Espionage Act prosecutions are dangerous to more than the media. The statute is notably vague, meaning it is ripe for selective prosecution and misuse against political or partisan enemies. On any given day in Washington, numerous classified details are whispered across lunch tables and many of them make it into print or on the air. Many of these "secrets" aren't truly vital to national security but have been classified for political reasons, or because information is power and many bureaucrats like to control the flow of information. Is Justice going to investigate and prosecute every one of those leaks? The potential for political abuse is obvious.

And in the end, the WSJ picks up on the Washington Post's Espionage Act as U.S. Official Secrets Act" meme.

More broadly, this use of the Espionage Act amounts to the imposition, by executive fiat, of a U.S. version of Britain's Official Secrets Act. That law criminalizes the publication--and even the re-publication--of certain kinds of information. This kind of "prior restraint" on the press is alien to the American legal tradition of First Amendment rights. If Attorney General Alberto Gonzales thinks we need an Official Secrets Act, then he ought to say so and ask Congress to debate and pass it, rather than let his prosecutors impose one by the back door.

Spoons (mail) (www):
Nice try, WSJ but there is a difference between a prior restraint and prosecutions after the fact. The entire doctrine of prior restraints hinges on this fact.
8.17.2006 9:55am
It's one thing to muzzle speech in wartime and another to do it in peacetime; but what we have now is peacetime-with-an-asterisk.

Without an unequivocal declaration of war, the danger is that necessary wartime actions will translate into peacetime precedents. The government is right to take action under the circumstances, but the media are right to be concerned because 'the circumstances' lack legal definition.
8.17.2006 10:38am
Justin (mail):
"But these Espionage Act prosecutions are dangerous to more than the media. The statute is notably vague, meaning it is ripe for selective prosecution and misuse against political or partisan enemies."

Gee, WSJ, ya think?
8.17.2006 10:58am
Bruce Hayden (mail) (www):
To give the WSJ credit, they didn't cite the Pentagon Papers case for the proposition that leaking, per se, is protected by the 1st Amdt., given that that case did revolve around prior restraint, and none of the cases where prosecution is realistic in the near future are so positioned. Rather, invariably, it is about prosecuting after the fact - which at least some of the majority Justices in that case seemed to approve of.

Nevertheless, I disagree with the article because it again brings up the argument that some information is classified for political, and not national security, reasons, and thus, the government apparently shouldn't prosecute for that reason. But that is, IMHO, exactly backwards. While it is theoretically possible that the government might prosecute such a case, if it gets the precedent that prosecution for publishing leaks is viable, it is unlikely to do so for political reasons.

In other words, the WSJ seems to be arguing that the government shouldn't be able to prosecute the publishing of leaked information that affects national security on the basis that this would embolden them to prosecute publication of leaked classified information that harms them.

But that is a green light to do exactly what the NYT, in particular, has been doing, publishing leaked classified information for political gain that does expose operational information about programs that the government has good reason to believe are essential for national security.
8.17.2006 11:02am
frankcross (mail):
Well, I don't see why government would be loathe to prosecute when info is protected for political reasons. If they want to deter future exposure, they would choose to do so.

Of course the WSJ griping about NYT disclosure of financial surveillance remains bizarre, since the Journal went public with the same report at almost exactly the same time. And this is a legitimate theoretical concern. But I have yet to see any evidence that the NYT or WSJ released anything that compromised our security. What particular fact was contained in the press reports that undermined the effort?
8.17.2006 11:15am
noahpraetorius (mail):
Frankcross, "But I have yet to see any evidence that the NYT or WSJ released anything that compromised our security."

1) Clearly the SWIFT program has been endangered.

2) Terrorists now KNOW that their calls into or from the US may be intercepted. Any interceptions prior to the NSA disclosures disproves the notion that terrorists were aware of this or proves that they are at times foolish. Heightening their awareness is probably not helpful.

3) Disclosure of CIA system for transporting prisoners may have put lives at risk.

4) Disclosure of CIA prisons if they exist or not puts foreign governments in an embarassing position and may jeopardize future cooperation.

Have I left anything out? You know all of this.
8.17.2006 11:49am
"The statute is notably vague..."

Two publications, the WSJ and WAPO have made this statement. My question, and it is a real question not snarking, is this really true? Why not give an example? I admit I am too lazy to read the statute myself, but I am sure some of the fine minds on this board already have.

"..prosecuting a pair of lobbyists for doing what journalists do every day."

For a long time "the press" have asked for, and often received, privileges that the average citizen does not have, like shield laws. And it can be argued that this is a good thing. But they are now learning, as any well brought up child knows, that when privileges are abused you risk them being taken away.
8.17.2006 12:08pm
Kate1999 (mail):
Shorter WSJ: "We support Bush on everything, except when he threatens to prosecute people like us."
8.17.2006 12:10pm
Dan Hamilton:
"Well, I don't see why government would be loathe to prosecute when info is protected for political reasons. If they want to deter future exposure, they would choose to do so."

Well, I don't know but can you imagine the field day the press would have with the prosecution of someone for leaking something "protected for political reasons". Remember these are not Secret Trials and the Secrets have already been leaked.

I would really, really worry about such prosecutions. If I was the one bring the charges. I would be OVERJOYED if I was being charged. Nothing could hurt a Administration who brought such charges more then the spotlight put on them by such a trail.
8.17.2006 12:14pm
Third Party Beneficiary (mail):
1) Clearly the SWIFT program has been endangered.

How? Stating an assertion does not make it true.

2) Terrorists now KNOW that their calls into or from the US may be intercepted. Any interceptions prior to the NSA disclosures disproves the notion that terrorists were aware of this or proves that they are at times foolish. Heightening their awareness is probably not helpful.

And criminals KNOW that police look for fingerprints, DNA evidence, fibers, gunpowder residue, etc. That doesn't stop these things from being useful. Should public discussion of criminal forensic techniques be banned since it heightens criminals' awareness of them?

3) Disclosure of CIA system for transporting prisoners may have put lives at risk.

How? There were no specific details given as to locations, times, individuals, etc.

4) Disclosure of CIA prisons if they exist or not puts foreign governments in an embarassing position and may jeopardize future cooperation.

This very statement proves the point that classification is often used for an improper purpose -- a fundamental premise of democracy is that people are entitled to learn information about the activities of their government (and especially activities that may be embarassing and unpopular) so they can decide whether to vote the offending politicians out of office.
8.17.2006 12:24pm
dick thompson (mail):
The thing is that if the trials do take place they will almost have to be secret because of the classification of the material that will have to be examined. That means that the whole scenario of the public trial would go out the window.

Just because certain facts about these situations have been made public does not mean that the whole of the situation has been disclosed. Additional information about the situation would almost certainly come up in the trials and since these are still secret then the trials would also have to be secret. There are courts and judges who are cleared to handle cases involving security breaches and lawyers also who are cleared for them. Those are the courts and judges and lawyers who would be called for in these trials. If the media would at that time make the further information public, then the case would almost rule itself and the media would be the loser.

As to your not having seen yet that the publications endangered our security, that is ludicrous. Just because certain information was released does not mean that all of the information was released nor does it mean that there is not more information that was not released. That the additional information which would prove that the nation was endangered is still secret is a good thing. That also does not mean that what the media did was not endangering to the security of the nation. It just means that you in your infinite wisdom and without knowing all the facts determined that the security was not endangered just as Keller et al did the same thing. Does not make either of you right or wise.
8.17.2006 12:30pm
frankcross (mail):
Third Party Beneficiary handled it, but I still think the important question is: What precise information was disclosed that benefited terrorists?

The SWIFT program was already publicly disclosed. The existence of surveillance was already publicly disclosed. Perhaps some details were not. To show any negative effect of the NYT, you would at least have to identify those details and explain how they had an adverse effect. Out of all the fulminating over the disclosure, I have not seen anyone even identify the details.
8.17.2006 12:31pm
Just an Observer:
noahpraetorius: 2) Terrorists now KNOW that their calls into or from the US may be intercepted. Any interceptions prior to the NSA disclosures disproves the notion that terrorists were aware of this or proves that they are at times foolish. Heightening their awareness is probably not helpful.

In which case, this very discussion is also dangerous! And "not helpful" is hardly a standard warranting criminal prosecution.

What is missing from this analysis is that, while it was no secret that the NSA eavesdrops on terrorists, it was a secret that the NSA would violate the law to do so.
8.17.2006 12:38pm
Am I missing something when the WSJ states "By revealing security secrets for no apparent reason other than its own partisan and ideological agenda, the Times has invited a government backlash against the entire press corps" and then goes on to argue that the laws are dangerous once lobbyists are now threatened with prosecution? Umm... aren't lobbyists partisan and ideological in agenda by nature - more so than the NYT?
8.17.2006 12:43pm
dick thompson (mail):
The problem is that the identifying the detail that had an adverse affect would mean that you would point to details that are still secret and still functional and would have an even more adverse affect. That the information on the SWIFT program was already publicly disclosed is bad enough. That more information that would pinpoint even more exactly why the SWIFT program helped in the gathering of intelligence to fight the war means that further disclosure is not in the interests of the government, the nation or the war effort.

The media is as I mentioned above still trying to game the government into disclosing even more stuff so they can point fingers at it and slant stories about it and win Pulitzers for disclosing it. We as a nation cannot afford media like this. There are initiatives that the government is undertaking that will possibly stem the tide of Islamofascism. When the media does all it can to stymie the government in those initiatives, which is the effect of what the NYT and WaPo and the LAT are printing, then the losers in this mess will be the public as we put down our prayer rugs, point the compass to Mecca and bow down 5 times a day. Thank you, media.
8.17.2006 12:45pm
R. Frost:
Dick, just out of curiosity, since you just articulated a position that one often sees on the Internet:

Are you genuinely concerned that the U.S. is going to be swamped by the "tide of Islamofascism"? In other words, do you actually believe that there is any chance that our country — with all of its military strength, its overpowering nuclear arsenal, to say nothing of its people's devotion to democracy, etc. — will actually be conquered by Muslim fanatics? In your post, you suggest that this is something we should be worried about: that someday we may all be bowing down to Mecca. But do you really worry about this? Or is just a specter you conjure up to remind us to take this conflict seriously?

Second question: if you do really believe that we should be worried about all living in the Caliphate someday, can you explain how, in your view of the future, we would ever get from where we are to there, to a world in which the U.S. has been defeated by Islamofascists and Americans are ruled by Muslims? What would have to happen for this to occur? How would they get around our military, and avoid our thousands upon thousands of nuclear weapons? If you think victory for them will come via subversion from within, what plausible means do Islamists have of turning Americans? And again, if you don't have a convincing narrative of how we could lose, then why do you keep bringing the possibility up?
8.17.2006 12:57pm
The 1917 law predates the secrecy classification system by 30-some years, so it has its own statutory definition of what a "secret" is. Things that are merely politically embarassing don't qualify. So, for example, imagine the NYT published that the president had a mistress and she was blackmailing him and the payments were coming out of the classified CIA budget. Nominal classification status or not, this is clearly not within the Espionage Act's definition of "secret". And then there is the classification system, first formalized by Truman in 1953. It has always had language that explicitly ruled out as "secret" something which is merely embarassing. Here is what EXECUTIVE ORDER 13292 says about things which are not classifyable:
Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified in order to:

(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;

(3) restrain competition; or

(4) prevent or delay the release of information that does not require protection in the interest of the national security.
Y'all are the lawyers here, but when I read "In no case shall" it says to me that if I disclose something that falls into one or more of those 4 categories, and the government comes after me for disclosing "classified" information, then my defense should be that, according to the government's own rules, the information was not classified, and not secret, irregardless of what was stamped on the piece of paper.

C'mon guys, aren't you lawyers? Don't you know that what is and isn't secret is established by law and by these executive orders, and that if a defendent disputes whether something is really classified-according-to-the-law then that will be ruled on as a finding of fact by a judge or jury, right? And a government which lost that ruling would receive enormous political punishment.

cathy :-)
8.17.2006 1:03pm
frankcross (mail):
dick thompson, I don't understand your point. You seem to be saying that for the government to demonstrate that disclosures are harmful, they would have to reveal other, still secret information to prove that. I think you are right about that, which is why prosecuting the press may not be helpful.

But I am asking first what particular nonpublic information was disclosed by the NYT. If you can't answer that, it's hard to see much risk. Then, once that is revealed, is there a plausible argument that this information compromised national security? But you've got to answer the first issue before you can even begin to make a claim of harm.
8.17.2006 1:04pm
noahpraetorius (mail):
I read somewhere (it doesn't matter where...consider this post a hypothetical) that Bush had ordered the Pentagon to prepare a plan for an attack on Iran on short notice. Was that disclosure if true and if classified damaging to national security? Would it be damaging to national security to disclose the location and types of weapons stockpiled for use in the contemplated attack?

What criteria would the pro-disclosure crowd use to assess the disclosure of classified information? Sounds like to me you will rationalize just about anything.
8.17.2006 1:35pm
Andrew Hamilton (mail):
I write as a non-lawyer who has worked as a reporter, for Congress and as government official (in non-press-related jobs), including service on the National Security Council Staff at a particularly contentious time in government-press relations, 1970-71. I'd like to make a distinction between secrets that clearly have adverse operational effects, secrets that are pro-forma, and routinely classified secrets that protect an administration's political flank. It has been my impression that reporters and their sources have often been careless in exposing operations when a little reflection and caution should have deterred their publication. The classic case in my memory is Jack Anderson exposing the fact that the United States listened to the limousine phone calls of leading members of the Soviet politburo. That disclosure shut down a useful intelligence source that had, among other things, alerted the United States to the imminence of the Soviet invasion of Czechoslovakia in 1968. There was no prosecution. But the government will prosecute officials who have signed secrecy agreements when it can be shown that they have disclosed classified information to unauthorized sources, whether the information is truly sensitive or not. The Pentagon Papers, I believe, are the classic case of the disclosure of information that damaged administration policy but did not demonstrably harm national security. The government failed to prevent their publication (prior restraint) and gave up prosecuting Dan Ellsberg (perhaps with some relief) after some illegal intercepts of his conversations were disclosed.

The disclosure of the SWIFT program and of the NSA warrantless interception of some calls between the United States and foreign locations seem to me to fall into the first category. Both programs appear to have had operational utility that, quite plausibly, was damaged by publication. It is not a sufficient excuse for publishing these articles to say that terrorists already knew in principle that they might be overheard or that their banking transactions might be traceable, or that they were already seeking ways to avoid detection. Any new information that would help terrorists find ways to defeat attempts to monitor their activities is clearly harmful to anti-terror operations. If the Times felt that laws were being broken, one responsible recourse would have been to take the material to the relevant committees of Congress rather than publish it.

On a tangential point, there was a difference between the New York Times decision to publish its article on SWIFT and the subsequent decisions by the Wall Street Journal and the Los Angeles Times to publish what they knew once it was known that the Times had already done so. I see no real reason to quibble about the decision of Treasury to dicuss the program after it was published on the web by the NYT.

This point, it seems to me, is the place to begin thinking about the "odd argument" of Philosophy professor Thomas Nadelhoffer cited August 15 by EV. Once information is in the public domain, how can it possibly be treasonous or even illegal to discuss its existence so long as the discussion does not reveal new national security secrets? The horse has left the barn. That does not mean that the government must not or should not or cannot go after the persons who let it out in the first place.
8.17.2006 1:55pm
Just an Observer:
Slightly off-topic, but big news:

U.S. District Judge Anna Diggs Taylor today issued a sweeping opinion and injunction against the administration's warrantless NSA wiretapping program.

The opinion is here. The injunction order is here. From the order:

IT IS HEREBY ORDERED that Defendants, its agents, employees, representatives, and any other persons or entities in active concert or participation with Defendants, are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (hereinafter "TSP") in any way, including, but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of the Foreign Intelligence Surveillance Act
(hereinafter "FISA") and Title III;

IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA and Title III;
8.17.2006 2:09pm

And criminals KNOW that police look for fingerprints, DNA evidence, fibers, gunpowder residue, etc. That doesn't stop these things from being useful.

Criminals do know that police look for these things. They also go to great lengths to ensure that the police do not find this type of evidence.
So you really made the case that the NY Times disclosures about the swift program and NSA wiretaps hurt our ability to defend against terrorist attacks.
8.17.2006 3:00pm
Third Party Beneficiary (mail):
"So you really made the case that the NY Times disclosures about the swift program and NSA wiretaps hurt our ability to defend against terrorist attacks."

Setting aside the fact that the new knowledge that the government covertly installs warrantless wiretaps is no more helpful to terrorists than the old knowledge (publicly available to anyone reading the U.S. Code) that the government covertly installs wiretaps with secret warrants, and thus makes no difference (because the terrorists already knew it's possible for the government to tap their phone without generating a public record), yes, it is possible that some terrorists will now avoid certain activities that would lead to their detection just as criminals do. However, unless you're also planning on prosecuting reporters as accessories or for aiding &abetting for disclosing the general fact that police use various forensic techniques to catch criminals, that point is irrelevant. If you don't like the fact that for a democracy to function its electorate must have access to general information about law enforcement activities so as to decide whether they want those activities to continue, I'd suggest moving to one of the many countries of the world in which governments already have the power to make sure reporters and editors never talk about anything the government doesn't want them to.
8.17.2006 3:17pm
dick thompson (mail):

No, you miss the whole point. Let me make it simple for you.

I have a program that has 5 components that ae interrelated. This program is used to follow the money so that we can track terrorists. The reporters find out about 3 of the components of the program and write them up on the front page of thepaper. These components presuppose the 4th and 5th or predict that as a result of findings based on these 3 components the 4th and 5th exist. In the course of the trial the whole program is discussed as the reporters wil probably claim that the program should not have been classified as the terrorists would assume that the money would be followed. In order to prove that the program is still justified, the government would have to show that what the reporters wrote up would naturally lead to the rest of the program and that therefore the reporters really did endanger the program. The only way they can do this is to release the rest of the program in order to show that the reporters did endanger the nation. Now you have just blown the whole program instead of just a major par of it and also told the terrorists exactly what mechanisms the government was using to follow the money and try to disrupt the flow so that the terrorists would not be able to buy more weapons. Therefore you have hurt our ability to defend against terrorist attacks because the terrorists can hide the money easier, have more money to buy weapons and therefore have more weapons to use against our troops.

As an example, take the Cuban missile crisis. Intelligence reports come in that unusual transit activity is going on on a certain road with info coming from one source. The next source says that the transit activity is moving strange boxes. The following source says that the strange boxes have certain symbols on them and show the symbols. The next source says those symbols are used on nuclear missiles. Put it all together and you have nuclear missiles in Cuba.

The same with the SWIFT program. You get one bit of information from the first part. The second part gives you the next bit. The third part gives you the next bit. Finally you have the part that links the money to the terrorists. The bit after that shows the expenditure of the money on arms. The NYT and the LAT released the first couple of parts of the puzzle. That breaks the link to the rest of it because now the terrorists know to ship the money other ways. Does this hurt our ability to defend against terrorist attacks? Sure does because now we have lost our ability to track the money and the weapons at one fell swoop because some reporters wanted a Pulitzer Prize and screw the country. That is why these media types with their unmitigated gall to think they are above the law are hurting our ability to defend the country - and they think they can, based on what they know, determine that they are not hurting the defense. The part they don't know is what they are screwing up for the country. That is also the part that the government cannot talk about in open court without messing up the whole defense against terror. The NYT does not have all the links involved and is deciding things they are not tasked to decide based on partial information and thereby screwing us all.
8.17.2006 3:28pm
dick thompson (mail):
As for the idea that because we are this huge and mighty military power the Islamofascists cannot prevail against us, just remember your ancient history and the Roman Empire. How about our own history and the Revolutionary War? Britain was the major power of the world at the time and a bunch of backwoodsmen and other rabble did a pretty good job on that. We had the French and Poles and Germans to help us while the Islamofascists have the Euros and the media and our LLL dems to help them.
8.17.2006 3:32pm
frankcross (mail):
dick thompson, you miss my point. My point is that all that information about the 3 components was already disclosed by the DoT itself. Before the NYT report. Which is why I am asking you to identify what new was in the paper. I've asked this several times. For someone to criticize this program, it would first be necessary to identify a particular fact that was newly disclosed. Only then can one address whether it might have harmed national security.

And you're wrong about the WSJ, Alexander Hamilton. The guy in charge of the story said they were about to run it at the very moment that the NYT posted.
8.17.2006 3:51pm

However, unless you're also planning on prosecuting reporters as accessories or for aiding &abetting for disclosing the general fact that police use various forensic techniques to catch criminals, that point is irrelevant.

You are confusing National Defense with Law Enforcement and the fact that police evidence gathering techniques are not classified.

Also the Times disclosed a lot more information about the NSA wiretaps, such as the data mining, then what was publicly available before.

Can you honestly say that our ability to prevent terrorist attacks where not hindered by this?
8.17.2006 3:54pm
Thorley Winston (mail) (www):
As for the idea that because we are this huge and mighty military power the Islamofascists cannot prevail against us, just remember your ancient history and the Roman Empire.

I don't think you have go back that far. Just go back to 09/11/2001 when nineteen Islamofascists armed with box cutters killed nearly three thousand of our fellow citizens and caused untold billions in damage. The point of curtailing them is not that we're afraid that they're going to succeed in taking over the nation and impose Sharia law on us but that such people are capable and willing to commit massive amounts of death and destruction in the process particularly if they get their hands on any sort of WMD.
8.17.2006 4:11pm
dick thompson (mail):
There is a big difference between disclosure from a government agency about a program and the NYT blaring it on the front page.

If you don't think so, just look at Abu Ghraib. The DoD wrote up the Abu Ghraib case in Feb and also wrote that they were in the process of developing courts martial of the offenders and that all those involved had been removed from duty there. Did you read about it in the NYT? No. In April, Sy Hersh and others wrote up this big stink about Abu Ghraib and then beat the drum over and over and over even though the government was preparing the courts martial at the time. If I follow your logic then the second story by Sy Hersh should have had no affect on our standing because the DoD had already released all the information. News flash for you!! It had a major affect on our standing and in fact is still trotted out by the media when they want to make any points about terrorists in prison and how we are mistreating the poor dears by actually, you know, keeping the lights on all night.

It all boils down to an old saying, "if a tree falls in forest and nobody is around does it make a sound." The DoT released whatever their story was and afterwards we still caught terrorists by following the money. Bet we don't catch them anymore. Thank you, Keller and NYT and LAT et al.
8.17.2006 4:28pm
R. Frost:
No, Thorley, you're making a different argument. I'm not contesting the idea that Islamists can hurt us. I'm contesting the idea -- which Dick and many others keep invoking -- that the threat we are confronting is an "existential" one, in the sense that our very existence as a society is at risk, and that we have to worry precisely about Islamists "taking over the nation and imposing Sharia law on us." That's what Dick is saying we should be worried about. And I'm still waiting to hear why it's something I should be concerned about.

As for Dick's response, could this be any more confused? The American colonists did not topple the British Empire. They did not conquer Britain, or make the British live the American way. They won their own independence. Even if we accept Dick's peculiar assertion that Islamists today are like the Americans were in 1787, I still don't see why that historical example makes me worried about having to pray to Mecca any time soon. Life for the vast majority of Englishmen continued pretty much the same way after the Revolutionary War as it did before. And we'd be a lot better off if people like Dick stopped invoking fantasies of Islamic global conquest and we focused instead on stopping the real threat posed by Islamic terrorists.

Stop invoking imaginary specters of world conquest
8.17.2006 4:42pm
Edward A. Hoffman (mail):
I think Bruce Hayden's comment above misses an important point. Even if the government is unlikely to prosecute a leak of information which it classified solely for political purposes, the act of classifying it will have a chilling effect on the press. Even if the dividing line between leaks which should and shouldn't warrant prosecution seems clear, there is no guarantee the government will agree. Our current administration has often taken rather far-fetched positions -- on issues both legal and factual -- so the prospect of such things happening in the future is quite real. Mr. Hayden seems to think the press will decide which secrets to expose the same way under the Espionage Act as it did before, but this seems unlikely.
8.17.2006 5:03pm
frankcross (mail):
So dick thompson, your point is that newspapers should not publish information in the public domain? And you think Abu Ghraib should have remained unknown to the public?

I would think those are pretty extreme positions.
8.17.2006 5:10pm
R. Frost:

Islamic terrorism is clearly an existential threat although perhaps not in the way you're thinking. Look around, current debates include does the executive has the authority to perform warrantless wiretaps, under what circumstances is torture permissable, and if we will apply the Geneva Convention to enemy combatant. We take off our shoes and dump all our liquids just to get on a plane. We've got troops in theater in two countries.

The country has palpably changed since 9/11. Care to venture what the country and the world would look like after a low-yield nuke goes off in Manhattan? I dare say we wouldn't recognize we'd become. I believe we would become something radically different; a police state domestically and the four horsemen of the apocalypse internationally. International trade would grind to a halt and the economy might make people long for the days of the Great Depression.

We could very easily lose what we have without having to pray to Mecca or enact Sharia. It doesn't strike me as far-fetched in the slightest. How does it strike you?
8.17.2006 7:09pm
dick thompson (mail):
I think that Abu Ghraib should have been published and it was - in February. I think the perpetrators should have been punished - and they were by the military without all the publicity. I think that the photos should have been published once - just as the photos of the terrorists chopping off heads gets published once - sometimes - most times the media claims it would upset people so they don't bother publishing those photos of our enemy, only the ones that hurt the US. I think that the photos that are published should be checked to insure that they are valid photos and not photoshopped photos. I think that when photos are published, someone military should check them out so that the tag lines describing the photo are correct and not totally off the wall - remember the photo of the air to ground missile that supposedly crashed into homes and killed all kinds of people and turned out to be a tank cannon round that had not even been fired? I think that the stories that are printed should be checked out for accuracy and not just accepted from stringers who are out there with the terrorists when IED's are planted. I think that there should be more stories about the rest of Iraq and what is going on there. Remember that the problems in Iraq are in 4 provinces out of 19 and involve no more than 50K of US troops. That means that there are an additional 80K of troops out there who are doing something in Iraq and we hear nothing about them. What are their functions? What are they accomplishing? How are they interacting with the Iraqis? If you read the CENTCOM daily stuff you can find out exactly what they are doing but for some reason our media is more interested in telling our secrets or our deaths than what the rest of the troops over there are doing. Wonder why. Must not fit the scenario.

The upshot is that the media should be giving us the whole story accurately and should be printing photos from both sides that are true photos and not photoshopped. If we can take it that our young men and women are being killed and wounded then it will be upset us too much if we see what our young men and women are facing if they are captured but we are judged too weak to accept that. In fact they tell us it is too upsetting to see people jump from the 100th floor of the WTC so we should not be shown that either. Again, just does not seem to fit the scenario.

Now back to the subject here. I think that the media should be the last people to make judgments on the classification of information and whether the publication would endanger our security. I think that by doing so based on half cocked information that they think is the whole story they are truly endangering our troops in battle and our freedom as a nation. I think that questions on the classification of information should pass up the chain of command of people who are cleared to see it and they will make decisions based on the whole case study. If that is still in question there are other mechanisms available to decide the question within the executive departments. If there is still a question then the oversight committees of congress have the power to step in on the issue and following even that there are courts that are cleared to handle this stuff. That the media determines that their getting this entitles them to spread it all over the place on their own judgment without exhausting all the other failsafe options is a real danger to the freedom of this country, far more so than having stuff overclassified. I would rather see something classified top secret rather than secret than see secret information get out in the media that could endanger the young men and women who are protecting this nation. It is for damned sure safer than having a Bill Keller decide that his judgment is higher than the president and secretary of defense and secretary of state.
8.17.2006 9:43pm
Andrew Hamilton (mail):
Frankcross said,
"And you're wrong about the WSJ, Alexander Hamilton [sic]. The guy in charge of the story said they were about to run it at the very moment that the NYT posted."

I think this is wrong or misleading. Here is what the WSJ published:

"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.'" WSJ June 23

"Some argue that the Journal should have still declined to run the antiterror story. However, at no point did Treasury officials tell us not to publish the information. And while Journal editors knew the Times was about to publish the story, Treasury officials did not tell our editors they had urged the Times not to publish. What Journal editors did know is that they had senior government officials providing news they didn't mind seeing in print. If this was a 'leak,' it was entirely authorized." WSJ editorial

I heard an editor from the LATimes say on NPR he was in a meeting with Treasury officials trying to dissuade him from publishing the piece when the news came that the NYT had already done so. I infer that the WSJ jumped in when they learned the Times was going public, and went to Treasury for comment. By then Treasury had decided they couldn't stop publication. Admittedly this is only an inference on the timing of the WSJ decision, but it fits the facts about Treasury's dealing with the NYT and LAT, whom they asked not to publish. The point remains. Once the Times decided to go, the other papers were free to publish, and did so for competitive reasons. So the stories by the LAT and WSJ do not let the Times off the hook for its responsibility in deciding to dismiss government arguments and be the first to publish.
8.17.2006 10:53pm
Richard Aubrey (mail):
Whether it's coordinated or not, the assault on the west has several avenues.

One is to use the liberal knee-jerk sympathy for any self-appointed victim to get special privileges. See how much room Muslim groups have on campus. Add to that the reluctance of 'crats to deal with organized groups who will not only sue but may haul out the mobs to break stuff.

Picture this: A mid-sized city. In a shopping mall, half a dozen yutes harass a girl because she is dressed immodestly. The harassment rises to some kind of assault. The jury includes a couple of Muslims who let the yutes off because oMuslim solidarity (don't EVEN start wasting cyberwhatsit telling me either that it would never happen or I'm a racist for saying it might).
It happens five times in eighteen months. The sixth time, the prosecutor doesn't bother to file charges. The ACLU has already succeeded in making it impossible to exclude Muslims from the jury.
Now what? Vigilante activity? The mall abandoned by non-Muslims? The city abandoned....?
Women make a serious change in their wardrobe when going out and liberals have nothing to say?
Do you see any seam in this where it could be stopped? Don't start with the wishful thinking.

Is this an existential threat to the US? No. Of course not. Since it will happen, if it happens, only once. And if something similar happens, it isn't twice, because it's not the same. So it didn't happen twice, you see.
(Rehearsing excuses here)
8.19.2006 7:23pm