pageok
pageok
pageok
Jack Goldsmith on the Press and Executive Branch Secrecy:

Jack Goldsmith's excellent New Republic article on executive branch secrecy during the War on Terror raises a difficult conundrum: neither the press nor the executive branch can be trusted to make unilateral decisions about secrecy. As Goldsmith points out, the press cannot always be trusted to decide for itself which classified information it might get its hands on to report and which not to. The New York Times and other media outlets claim to "balance" national security interests against the public's right to know when they decide what to publish. But, as Goldsmith notes, they have strong incentives to err on the side of revealing too much:

[New York Times reporter Eric] Lichtblau assures us that it does, noting that the Times editors serve as a "built-in backstop, a check and balance" on reporters, and adding that for "the editors to even consider running a piece, we knew that there had to be a legitimate public interest that outweighed any potential harm to national security."

But . . . there are many reasons to be skeptical. Saying the editors are a check on what the Times publishes is like saying we can trust the president to curb the excesses of his subordinates. It affords little comfort, especially since the public has no access to the process of the editors' decision-making. One wants to know precisely how the editors weigh the public interest in knowing against national security harm. Even if the editors possess the expertise to identify and to assess these trade-offs (something that is doubtful), is their judgment distorted by the pursuit of fame and profit? The separation of powers, the institution of elections, and the free press help to ensure that government's self-directed motives do not get out of hand. But there are few checks on the press itself. The most powerful constraint on the press is the marketplace of ideas--but this marketplace is designed to sort out truth, and it is no corrective when journalists irresponsibly disclose sensitive national security information.

As Goldsmith notes, reporters and editors stand to gain "fame and profit" if they reveal a major "scoop." By contrast, they get little if any benefit from refusing to publish classified information that may benefit the enemy. Goldsmith suggests that the Times crossed this line in some of their reporting on the Administration's surveillance program, reporting which he claims ended up benefiting Al Qaeda by giving them valuable information.

Obviously, as Goldsmith recognizes, there is also a flipside to this. If the executive branch can decide unilaterally what information to reveal, they can use the pretext of national security to cover up human rights abuses, spying on their political opponents, and other misconduct. As Goldsmith explains, "press scrutiny of secret government activity is important to keeping government accountable. Fear of leaks causes national security officials to think twice about what they do, and deters them from doing things that they should not do."

Thus, the executive branch cannot be trusted to make unilateral decisions in this area; but neither can the press. The former is likely to keep too many secrets, the latter too few. There is no easy solution to this dilemma.

One possible approach is to recognize that we need an arbiter for these issues that is as neutral as possible in its incentives, free of both the press' incentive to overreveal and the executive's incentive to engage in excessive secrecy. Though it has flaws of its own, the judicial branch does have the advantage of lacking either of these perverse incentives. So we may want to allow judicial review of classification decisions, perhaps similar to the FISA system of judicial preclearance for warrantless surveillance. If the courts rule that a classification decision was unjustified, reporters could be shielded from prosecution; if they rule in favor of the government, reporters who go ahead and publish nonetheless should perhaps face more severe sanctions than under traditional classification laws.

Alternatively, we can try affect reporters' and officials' incentives through after the fact sanctions rather than by trying to fine-tune the classification system. As Goldsmith points out, it is often difficult or impossible to punish reporters who reveal classified information, even in cases where there has been real damage to national security. As standard law and economics of crime suggests, a difficulty in ensuring certainty of punishment might be partially obviated by increasing its severity.

By the same token, it is often also difficult to punish executive branch officials who use secrecy as a tool for covering up crimes and violations of civil liberties. Here too, we might want to consider increasing the severity of punishment for offenders, so as to at least partially offset the lack of certainty.

None of these proposals can fully "solve" the problem and it may well be that there are other, superior alternatives. The beginning of wisdom, however, is to at least recognize that we have a double-edged dilemma here.

Related Posts (on one page):

  1. Jack Goldsmith on the Press and Executive Branch Secrecy:
  2. Goldsmith on Lichtblau:
Perseus (mail):
Since the judicial branch has so little responsibility for national security and is biased towards civil liberties, judicial review of classification decisions seems extremely ill-advised.
8.5.2008 1:14am
DangerMouse:
Simple. The operation should be disclosed to Congress as part of closed committee hearings.

And to prevent leaks, the Administration should stage several operation "canary traps" and prosecute staffers, Congressmen, and Senators who leak such details.
8.5.2008 1:22am
gipper:
It is true, as Mr. Goldsmith claims, that those who wish to do Americans harm read the New York Times and likely learn information from it that they can use. But the cure -- prosecuting journalists and pre-publication injunctions -- is worse than the disease.

Giving Mr. Goldsmith the benefit of the doubt in his analysis (which is hard to do considering his role as an administration appointee regardless of his doubts at OLC), we can conclude that there was appreciable harm to intelligence gathering.

However, the revelations resulting from the investigative journalism into the Bush administration's activities -- from torture and extraordinary rendition to spying on Americans and defying the legislative branch -- serve the greater importance of strengthening our country by exposing those whose behaviors undermine it.

It is not a far step from spying on those who oppose this government's activities to actively undermining the democratic system. Many of those in the Bush administration were involved in this the last time that happened, under President Nixon. We do not need to go there again.

During the Cold War, the legislative branch exposed what the CIA called "the family jewels": America's history of surveillance, assassination, and political interference in our own democratic process. At that time there were 10,000 nuclear weapons pointed at us by an enemy vying for world domination. Now, we've got a couple thousand crazies who, although very dangerous, do not pose a comparable threat.

Not only is America strong enough to take the truth, it is ultimately strengthened by it.

The New York Times is not perfect, but its work is exposed to the light of day for all to see. As the Bush administration's handiwork is similarly exposed, it suffers by comparison.

We need to keep our eyes on the ball.
8.5.2008 1:35am
unhyphenatedconservative (mail):
Gipper,
Given our woeful underperformance in human intelligence, how do you defend our exposure of the family jewels as a success?
8.5.2008 1:44am
Ilya Somin:
Since the judicial branch has so little responsibility for national security and is biased towards civil liberties, judicial review of classification decisions seems extremely ill-advised.

Given the many times that the courts have upheld broad exercises of executive power in wartime (e.g. - Korematsu) I don't see much proof that they are systematically biased in favor of civil liberties.
8.5.2008 2:07am
XON:
I remember in law school when my Con Law professor got to political question doctrine, and he said, "The Supreme Court will never review the grant or denial of a security clearance." That was all.

I had held a security clearance for almost 10 years by that time. While I understood the practical assessment, I could never shake the unabashed dogmatism of the whole thing. "Security clearance -- don't go there!" was the whole of the practical law, and seems to still be. It's indefensible.

While Clinton was president, there were a few minutes of serious reflection as to the possibility of the DCI denying him access to sensitive information. Much like lawyers go over 12(b)6 analysis just once more before we admit to ourselves that we don't have any grounds for one. The answer to the Clinton qua President question was that his election equaled his background investigation. Since the day I came to D.C., I've always thought it positively scandalous that members of Congress did not exercise an equal right.

Before the hyperventilating begins about 'leaks' and 'nothing would ever be secure', I'll forestall that. Nothing has ever been secure. The National Treasure movies are just that; There's no book. There are no secrets, just knowledge that some men agree to conceal, and others agree to ignore. We still can't find out who Cheney met with for his Energy Policy Task Force. Don't tell me that Congress can't keep a secret. . .

A secret is, by nature, a deliberate concealing of information to avoid its consequences. There are very, very few secrets worth keeping in a system like America.

As to the press and their professional ethos: My opinion has been that if the executive branch can't keep it secret from reporters who have no unusual tools or 'statuses', then the whinging about 'disclosure damaging national security' has far more to do with covering incompetent government asses than protecting assets.
8.5.2008 2:22am
Perseus (mail):
Given the many times that the courts have upheld broad exercises of executive power in wartime (e.g. - Korematsu) I don't see much proof that they are systematically biased in favor of civil liberties.

That was then. What about now (e.g., Boumediene and the other habeas corpus cases)?
8.5.2008 2:28am
subpatre (mail):
In the ideal world (!) the Executive could use it's unlimited access to involved personnel to make an informed opinion about risks of revelation versus secrecy.

Media simply doesn't have the resources or ability to make informed decisions like that.
8.5.2008 3:08am
ARCraig (mail):
When in doubt, err on the side of freedom. Always.
8.5.2008 3:20am
Mike& (mail):
When in doubt, err on the side of freedom. Always.

With that attitude, the terrorist will win, and we will not have any freedom.

Sometimes, to be truly free, you must surrender some liberties.
8.5.2008 3:45am
Richard Aubrey (mail):
The role of the press here is reasonably laid out. It does miss the point, however, that the press might have an agenda to promote a change in society or government. This is not addressed in the question of fame and profit. If the goal is to, say, get the US out of Iraq--see the NYT among others--then leaking information absolutely damaging to the war effort is a positive good without regard to fame and profit.
The meme of "spying on Americans" is thrown around pretty loosely, to include spying on Pakistanis in Pakistan calling other Pakistanis in Pakistan. Yes, we know the difference if pushed, but those journos who dislike the administration's efforts aren't going to extend themselves to tell the truth any more than any other partisans are when trying to gin up public outrage.

And, of course, this does not address what happens when an institution simply hates the administration for no other reason than that they hate the administration. I am aware--pre-emption here--that foes of the administration can list a bunch of sins they dislike intensely. Some of them actually happened, too. But the reality is, the foes hated the administration since Bush was first nominated and before he'd committed any of the sins and crimes for which they pretend to hate him. And before 9-11.

The idea that fame and profit are the sole motivators of journo's efforts to damage the US is too limited.
8.5.2008 8:16am
Benjamin Davis (mail):
The problems with the arbiter are 1) prior restraint and 2) who picks the arbiter. The arbiter will always be subject to the Scalian "Americans will be killed if you reveal this." kind of argument. Once again Jack puts up a strawman. The Press do not unilaterally act. They are in touch with the administration and make a decision based on what the government tells them why a story should not be allowed out. They have delayed the release of some stories (to my great regret) in the War on Terror for absurdly long times and that has prevented Americans from understanding the level of abuses. I think the press is too cozy with any given administration for us to seriously worry about further curtailment of press freedom. This is one more case of a solution searching for a problem.

Best,
Ben
8.5.2008 8:30am
bosspup:


When in doubt, err on the side of freedom. Always.



With that attitude, the terrorist will win, and we will not have any freedom.

Sometimes, to be truly free, you must surrender some liberties.


Freedom is slavery.
8.5.2008 9:35am
Paul Milligan (mail) (www):
When exactly was the NYT put in charge of 'balancing national security interests' for this country ? Remind me - how many votes did they get in the last election ? The one before that ?
8.5.2008 9:44am
Eric Muller (www):
Further to Ilya's point above (in the comments), it is worth noting that the Korematsu Court upheld the government's mass exclusion program on the basis, at least in part, of false information whose submission was made possible by the insistence on the necessity for complete secrecy of supposed military facts.
8.5.2008 10:21am
Benjamin Davis (mail):
Freedom is slavery - 1984 is here. Amazing! Or is this one more troll?
Best,
Ben
8.5.2008 10:38am
Sarcastro (www):
Mike& Is right. Terrorism is an existential threat to America. With no America there can be no freedom at all.

Ego, for complete "true freedom," we need to lock up everyone but Dick Cheney. Better than letting the terrorists infiltrate and kill everyone one 9-11 at a time!
8.5.2008 10:38am
cboldt (mail):
The solution is already present. See Pentagon Papers case - 18 USC 793, 18 USC 798 and other laws have criminal penalties for disclosing and/or publishing classified information.
.
The NYT, being a party to the Pentagon Papers case, is experienced in evaluating how close to the "criminal" line it was walking, and chose to publish.
.
Adjust the criminal statutes, if disclosure of secret government policy (e.g., to conduct surveillance outside of statutory boundaries) is to be a criminal activity.
8.5.2008 10:39am
Visitor Again:
Sometimes, to be truly free, you must surrender some liberties.

Quite so. As the commander said during the Viet Nam War: "We had to destroy the village in order to save it."
8.5.2008 10:41am
Anderson (mail):
I brought up the conclusion of Goldsmith's review in the last thread, but it didn't get much notice, so here's the text itself:

Yet the absence of sanctions is not the real problem. The real problem, and the source of many of the most harmful leaks in the past few years, is the perception within the government of illegitimate activity. Secret surveillance activities that began in 2001 did not leak until after a legitimacy crisis had already developed, beginning in June 2004, around the Abu Ghraib scandal and the leaked interrogation memos. Lichtblau explains that it was the Terrorist Surveillance Program's circumvention of checks and balances, and the attendant anxiety about the program's legality, that led people inside the government to tell him about it. By contrast, the secret surveillance court that the administration bypassed issues thousands of warrants each year, many of them newsworthy--and yet the court's work never leaks, because the process is widely viewed as legitimate: expressly sanctioned by Congress, supervised by Article III judges pursuant to known rules, and reported publicly and regularly by the executive.

A root cause of the perception of illegitimacy inside the government that led to leaking (and then to occasional irresponsible reporting) is, ironically, excessive government secrecy. "When everything is classified, then nothing is classified," Justice Stewart famously said in his Pentagon Papers opinion, "and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on selfprotection or self-promotion." And he added that "the hallmark of a truly effective internal security system would be the maximum possible disclosure," noting that "secrecy can best be preserved only when credibility is truly maintained."

The Bush administration defied these precepts and suffered as a result. Instead of employing the secrecy stamp sparingly, it did so extravagantly. Instead of engaging the press and public about the disclosable aspects of what it was up to, the Bush administration shut off the press, heightening its suspicion and mistrust. Instead of working with Congress or the secret surveillance court to update its surveillance powers after September 11, it took a go-it-alone approach. [Examples deleted for brevity -- A.]

The secrecy of the Bush administration was genuinely excessive, and so it was self-defeating. One lesson of the last seven years is that the way for government to keep important secrets is not to draw the normal circle of secrecy tighter. Instead the government should be as open as possible, and when secrecy is truly necessary it must organize and conduct itself in a way that is beyond reproach, even in a time of danger. In the end, not Congress, nor the courts, nor the press can force the government to follow these precepts. Only the president can do that.


Since this is as close as Goldsmith gets to a "solution" of what's really an insoluble problem -- the dialectic between secrecy and legality -- I think Prof. Somin's post might have done better to acknowledge Goldsmith here.
8.5.2008 10:50am
SeaDrive:
It's not just the NY Times, of course. The publish/no publish decision could be delegated to Rupert Murdock, or any of 1000 other publisher and editors.
8.5.2008 10:55am
ejo:
in an earlier time, we may have actually had journalists and newspapers that still loved this country and cared about its survival-could one still say that today? I don't think so. what information wouldn't the Times leak today if they thought they could get a scoop?
8.5.2008 10:56am
cboldt (mail):
if they rule in favor of the government, reporters who go ahead and publish nonetheless should perhaps face more severe sanctions than under traditional classification laws.
.
Publication involves not just the reporter, but also the publisher.
.
Check the penalty in 18 USC 798 - Disclosure of classified information.
.
18 USC 798(d)
(1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law—
(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and
(B) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.

.
The printing presses are at risk, when a publisher decides to publish classified information.
8.5.2008 10:57am
Anderson (mail):
The solution is already present. See Pentagon Papers case - 18 USC 793, 18 USC 798 and other laws have criminal penalties for disclosing and/or publishing classified information.

The problem with that "solution" is described by Prof. Somin. The feds classify what's embarrassing or incriminating to them, and then anyone who blows the whistle gets put in the slammer.

The lesson of the past 7 years is not that more *journalists* need to be in jail.
8.5.2008 11:08am
Sarcastro (www):
Whatever, Anderson. As ejo pointed out, journalists today don't love America anymore. That's what I've learned in the past seven years!
8.5.2008 11:15am
byomtov (mail):
It's important forthose critical of the NYT to read this, quoted by Anderson:

Lichtblau explains that it was the Terrorist Surveillance Program's circumvention of checks and balances, and the attendant anxiety about the program's legality, that led people inside the government to tell him about it.


In other words, it wasn't just the NYT's judgment that this material should be published, it was also that of some Administration official. Whatever motives you may imagine for the leaker, the nedd for a sucha person to exist, and decide to leak the material, is an important check on the press' ability to publish.
8.5.2008 11:17am
Mike W:
I think that this pieces misses the real problem: if there wasn't rampant over-classification the the decision would be much easier. The fact that the executive--especially in the last decade or so--has classified the obviously not classified materials as classified makes this discussion difficult.

That said, I favor over-producing where there is illegal, unlawful, or immoral conduct involved. In fact, I think that such publication and disclosure ought to be heavily rewarded and the classifiers severely punished.

On those issues that are lawful, the burden to justify production/disclosure should be extremely high.
8.5.2008 11:21am
cboldt (mail):
-- The feds classify what's embarrassing or incriminating to them, and then anyone who blows the whistle gets put in the slammer. --
.
Only if the disclosure represent a violation of criminal statute. The Pentagon Papers did not represent such a violation, so out comes the embarrassing stuff. Likewise, a government policy of flouting domestic and/or international law isn't amenable (without more) to being found within the four corners of 18 USC 793 et seq.
.
Those who choose to publish leaked secrets are generally well informed about the risk of criminal liability and the boundaries thereof. I don't think that pushing that analysis forward in time (e.g., as Pentagon Papers case did, where the government sought an injunction as to publication) resolves anything, or represents a better method or timing of striking the balance. The same players (judges) are involved after the publication as in pre-publication review.
8.5.2008 11:21am
ejo:
would you trust a reporter today with the operational secrets that were kept in earlier wars? would you feel confident in a reporter today not printing that we had cracked codes in earlier wars? the leaked stories of Lichtblau weren't much different in kind or nature, yet to the front page they went.
8.5.2008 11:30am
Anderson (mail):
think that this pieces misses the real problem: if there wasn't rampant over-classification the the decision would be much easier.

Mike W., that is exactly Goldsmith's point, in the forbiddingly lengthy quotation I made above.
8.5.2008 11:36am
The Mojo Bison (mail) (www):
I think part of the difficulty here is that the nature of the beast has changed. The NYT had leisure to decide its case, and the government had leisure to decide its reaction. In the age of modern communications, not only is the time-cycle much shorter, but the potential damage is far greater for a bad press-side judgment, e.g., an online revelation quickly becomes global knowledge, even if taken down almost immediately.

To be honest (and I am merely a historian and not a legal scholar, I was never very happy with the majority's arguments in Times v. U.S.. To my untrained mind, the very fact that the papers were illegally obtained should have excluded them from First Amendment protection; after all, if the situation were reversed, and the government using illegally obtained evidence to prosecute the Times, it would be fruit of the poisoned tree. And besides, the remedy of an over-secretive government ought to be the ballot box, not the courts. Or am I hopelessly hidebound and/or naive?
8.5.2008 11:40am
Anderson (mail):
would you trust a reporter today with the operational secrets that were kept in earlier wars?

Ejo, I can see that you have never heard of the Chicago Tribune, which broke the "Rainbow Five" story as well as publishing the secret that decoded Japanese transmissions aided our victory at Midway.
8.5.2008 11:40am
Richard Aubrey (mail):
Anderson.
The story goes that McCormick hated FDR so much that this seemed like a good idea to him.
Nothing's changed.
8.5.2008 12:02pm
Thomas_Holsinger:
Anderson,

You assume good faith by persons who are not answerable to the public on election day. Dangermouse had it right. Oversight is Congress's job.
8.5.2008 12:06pm
ejo:
I would add that my 20 second google on both subjects showed that (a) was something published before we were at war and (b) did not even cause the Japanese to stop using the code (it seems no other newspapers picked up on it and the Colonel didn't have too many Japanese readers). We live in a somewhat different world today in terms of global communication, don't you think?
8.5.2008 12:11pm
Anderson (mail):
You assume good faith by persons who are not answerable to the public on election day.

I don't "assume" good faith by anyone. I simply recognize that the situation is inherently difficult, with no perfect solution.

I am all for Congressional oversight, but there are problems with that. One is inherent -- members of Congress can leak, or contrariwise be intimidated (as Rockefeller claims to've been).

The other is political -- until 2007, we had a stalwartly GOP Congress with no interest in oversight of a GOP president. That indeed is the situation that got us into the various messes we're in.

When there's no effective oversight of apparently illicit operations, you get leaks from disaffected members of the Executive branch. That's the problem Goldsmith is addressing -- on plenty of personal experience and observation, I daresay -- and that's the problem that he suggests is best redressed by Executive openness where possible, and respect for procedure where not absolutely impossible (exigencies etc.).
8.5.2008 12:12pm
Anderson (mail):
I would add that my 20 second google on both subjects showed that (a) was something published before we were at war and (b) did not even cause the Japanese to stop using the code (it seems no other newspapers picked up on it and the Colonel didn't have too many Japanese readers).

The Japanese were criminally negligent not to have intel staff perusing the world's newspapers -- the Tribune was distributed worldwide -- and I fail to see how classified war plans become fair game when the country is not formally at war.

But your talent for apologetics should cause you to be a bit less contemptuous of those who find excuses for the Lichtblaus and Risens. I look forward to your transformation.
8.5.2008 12:15pm
ejo:
I am still contemptuous of Lichtblau and Risen-why would anything that happened in the 1940's change that? If I were to point out that NYT reporters were traitors back in the earlier years of the prior century, ie. Walter Duranty, would that excuse traitors of today? I would have been happy to have seen the paper or whoever leaked the documents back then tried and hung. Japanese were criminally negligent-the world was a lot bigger back then, something that doesn't seem to penetrate your vast intellect.
8.5.2008 12:29pm
Just Dropping By (mail):
And besides, the remedy of an over-secretive government ought to be the ballot box, not the courts.

And how do you know the government is being over-secretive unless someone tells you that it is withholding information? (Also, how does the ballot box remedy the behavior of a president who has already been elected to a second term? This is not a hypothetical either; the NYT withheld publishing information about part of the surveillance at issue here until after George Bush had been reelected.)
8.5.2008 12:31pm
relativity (mail):
The difficulty with Professor Somin's "sanction" suggestions -- whether against the executive or the media -- is that it seems clear that we have no consensus about the circumstances in which either party would deserve them. Lichtblau is adamant that everything he did was pro bono publico; and I'm sure there are those in the executive who believe the same about their activities. So does Prof. Somin's sanctions proposal really reduce back to asking the wise judiciary to sort all of this out for the rest of us conflicted folks?
8.5.2008 12:42pm
Gregory Conen (mail):
@ejo:
"the leaked stories of Lichtblau weren't much different in kind or nature, yet to the front page they went"
Um, no.

The secrets of WWII were about enemys that were routinely killing hundreds to thousands of Americans. The total causalties in the "War on Terror" are comparable, and sometimes exceeded by, the losses in any number of SINGLE BATTLES in WWII. So the Axis was an obvious existential threat in a way Al-Qaeda is not. Just as an example.
8.5.2008 1:16pm
ObeliskToucher:

The other is political -- until 2007, we had a stalwartly GOP Congress with no interest in oversight of a GOP president. That indeed is the situation that got us into the various messes we're in.


Nonsense... Senators Rockefeller, Graham, Levin, Feinstein, Wyden, Durbin, Edwards, Bayh, Mikulski, Corzine, Feingold, and Reid were all members of just the Senate Select Committee on Intelligence during that time. (the House committee doesn't make it as easy to look up past membership).

And I suppose Waxman, Conyers, et al. were vacationing on the Riviera back then, too...
8.5.2008 1:27pm
trad and anon:
This is hardly the first Ilya post responding to some public issue with an a priori analysis of the "incentives" of the parties involved. He did the same thing with campaign finance regulation, probably others. How about we look at the merits and decide if what's in Ilya's head fits matches reality? Ilya, if you want to argue that the costs of the Lichtblau leak outweighed the benefits, that's fine, but enough of this beating around the bush.
8.5.2008 1:41pm
trad and anon:
As standard law and economics of crime suggests, a difficulty in ensuring certainty of punishment might be partially obviated by increasing its severity.
Does law and economics really deserve the credit for this profound insight?
8.5.2008 1:49pm
ejo:
so, GC, you don't feel that the threat is big enough (only 3k or so killed versus how many prior to Pearl Harbor, one of the examples given by Anderson). what about the goals of our enemy-do you feel that they have given up on the goal of killing americans and are happy with a body count of 3k and aren't looking for something bigger? I am sure that the thousands killed by the present enemy can rest easy knowing that the people killing them weren't "existential" threats-what body count, in your humble opinion, would qualify?
8.5.2008 1:54pm
Anderson (mail):
Does law and economics really deserve the credit for this profound insight?

Bentham and Beccaria were there a couple of centuries ago, IIRC.

Nonsense... Senators Rockefeller, Graham, Levin, Feinstein, Wyden, Durbin, Edwards, Bayh, Mikulski, Corzine, Feingold, and Reid were all members of just the Senate Select Committee on Intelligence during that time.

Easy with that "nonsense" tag, it has a way of backfiring.

What was the power of the Dem members of the committee to issue subpoenas and to compel hearings on topics of interest to them?

And as noted already, Rockefeller at least was badly spooked by threats from the White House -- probably moreso than the law really justified.

Do not of course mistake the above for defense of the Democrats, whose typical fecklessness in confronting the GOP on national-security issues did them no credit.
8.5.2008 2:01pm
Bob from Ohio (mail):

Rockefeller at least was badly spooked by threats from the White House


Ok, I'll bite since you keep making this assertion.

What "threats" worked on a senior, impossible to beat US Senator with independent wealth?
8.5.2008 2:09pm
The Ace (mail):

That said, I favor over-producing where there is illegal, unlawful, or immoral conduct involved. In fact, I think that such publication and disclosure ought to be heavily rewarded and the classifiers severely punished

Do you mean like the Terrorist Finance Tracking Program (SWIFT)?
Because that wasn't "illegal" or anything but it was disclosed. What did you say about that again?

Further, the TSP program, which nobody anywhere can demonstrate is against the law, has prevented terrorist attacks.
And what did you silly leftists do? Expose it, because you didn't feel it was right.

By they way, funny how Stare Desis gets thrown right out the window by the left,


Nevertheless, the principles which control the application of the privilege emerge quite clearly from the available precedents. The privilege belongs to the Government, and must be asserted by it; it can neither be claimed nor waived by a private party
8.5.2008 2:13pm
The Ace (mail):
typo: stare decisis
8.5.2008 2:15pm
ejo:
you are debating a brick wall. to the so called civil libertarians here, any alleged infringement on what they believe to be our civil rights is evil, inexcusable and illegal. people killed by terror-they are just statistics, as you can see from some posters above and the ones you often get that compare terror deaths to auto accidents. you can't prove and could never prove to them that people's lives are saved by fighting terror. after all, you don't have double blind experiments vetted by the ACLU, the only standard they would recognize.
8.5.2008 2:34pm
tarheel:

You assume good faith by persons who are not answerable to the public on election day.

Those answerable are not making the classification decisions. I have yet to see David Addington's name on a ballot, for example. And I can assure you no bureaucrat will ever be fired for over-classifying. As Ilya pointed out, the only rational decision for a bureaucrat not wanting to make headlines is to classify everything he possibly can.

What better way to keep your mistakes from public view and avoid accountability than to make it a crime to reveal them?
8.5.2008 2:34pm
The Ace (mail):
What better way to keep your mistakes from public view and avoid accountability than to make it a crime to reveal them?

So nothing should be classified then?

Nothing at all?
8.5.2008 2:38pm
tarheel:
Ace:

Of course not. Nor is that what I said.

But at least acknowledge that government has an incentive to overclassify, and without the media there is absolutely no check on that incentive.
8.5.2008 2:41pm
Gregory Conen (mail):
@ejo:
Existential threats are about capability; body count is merely a data about capabilities. Stipulate the Al-Qaeda would prefer to kill many more Americans. The fact that they haven't is a good sign they can't.

As for what body count qualifies, exceeding the "natural" rate of homicides would be a good start. 9-11 accounted for less than 20% of the homicides in 2001.

The main point is that it was cognizable that the Axis would conquer or destroy America (or certainly Europe) by force of arms, just as it was cognizable that the Soviets would. It's not really cognizable that Al-Qaeda will.

This is not to minimize the losses of those who have died. But any cost/benefit analysis must be objective. Any given American more likely to be killed by a family member than a terrorist, and their deaths are also tragic. And in neither case is their such a crisis that we need extralegal, secret powers to combat them.
8.5.2008 2:44pm
The Ace (mail):
Of course not. Nor is that what I said

Um, ok.

So if something is classified, it should be vetted throught the media then?
8.5.2008 2:49pm
The Ace (mail):
and without the media there is absolutely no check on that incentive

Or, are you suggesting things that are classified aren't really classified and should be published?

I'm just trying to follow your logic here.
8.5.2008 2:51pm
ejo:
one could have made that same argument on 9/10/01 in arguing against more aggressive tactics against terror organizations and enhanced surveillance-that argument would have looked foolish on 9/12/01 and continues to look about the same today. extralegal secret powers-is that shorthand for monitoring our enemies as they communicate with each other overseas? if the plan of AQ had been more successful and, let's say 50k had died, would you then be in favor of the programs you decry as extralegal. the programs are just as intrusive, no matter how many are killed, aren't they?
8.5.2008 2:51pm
Gregory Conen (mail):
@ejo:
Are you saying that it's OK for car accident deaths to be statistics, but not terror victims?

Of course we should fight terror, just like we fight crime and reduce accidental deaths. Which is to say, legally.

Sometimes I do feel like I'm arguing with a brick wall.
8.5.2008 2:53pm
SATA_Interface:
Ejo, what would you recommend be done to our administrators in government that break laws specifically written to curb the worst excesses of people in power?

We've built our societies over thousands of years and have constantly fought against autocratic governance with laws to limit the power of the few against citizens.

The concept of electing out the worst administrators has no teeth when the law breaking is concealed, and any hope of transparency is cloaked under state secrecy.

The flawed media organs of our country do offer a way for those inside the government who see the law being broken and no possible oversight occuring to stop it. What would hanging solve in your brick wall opinion?

It would turn the media into another scared subject of the King; afraid to blink without prior approval. We already have wonderful examples of this in other countries like Burma, China, so your Bircher argument is not very convincing to me.

Anyways, don't worry about a reply; I expect you to move the goalposts as you have in these earlier thread posts.
8.5.2008 2:54pm
tarheel:

I'm just trying to follow your logic here.

I highly doubt you are. It seems rather that you are trying to follow your version of my argument.

I'll simply ask you, do you think government should have the unfettered ability to make secret what it wants to make secret? Is that your idea of democracy? Or does your answer to that question change with the party holding the Oval Office?

True state secrets should be classified, and leakers should be punished. Government should do everything it constitutionally can to keep the press from getting hold of secrets. That is the job of those keeping secrets, after all.

I'll end by noting that if the NY Times leaks were so damaging, why have we not seen any prosecutions of the leakers?
8.5.2008 3:08pm
Gregory Conen (mail):
"extralegal secret powers-is that shorthand for monitoring our enemies as they communicate with each other overseas?"

It's shorthand for a program created unilaterally by the executive branch, with minimum notification to congress and bypass the courts, the existance of which was not disclosed to the public at large. In contrast to legal powers, which also allow us to moniter our enemies as they communicate with each other. Even in the US, provided we have evidence that they're our enemies.

"if the plan of AQ had been more successful and, let's say 50k had died, would you then be in favor of the programs you decry as extralegal. the programs are just as intrusive, no matter how many are killed, aren't they?"
Possibly. Even more likely if they delivered 9/11 scale attacks regularly, several times a year (even if the total yearly death was less than 50k). Apparently you don't understand the concept of cost/benefit analysis. I would still prefer they go to congress and authorize it (retroactively if needed).

But that didn't happen, and all empirical evidence suggests that it is beyond Al-Qaeda's capacity. I could just as easily ask "would you still support the program if, instead of 9/11, we had 19 idiots arrested trying to set their shoes on fire?"
8.5.2008 3:09pm
The Ace (mail):
We've built our societies over thousands of years and have constantly fought against autocratic governance with laws to limit the power of the few against citizens.

Really?
And which Democrats in Congress stand then for less regulation?
8.5.2008 3:10pm
ejo:
I don't particularly care about this "existential" fear the media would be put in if their leaks were prosecuted. Unless you are willing to state that no information or tactic should be classified or kept secret, the hyperbole and rhetoric you are using means nothing. Can you agree that telling our enemies we are monitoring them with specific details as to how it is being done is a stupid, perhaps fatally stupid, thing? If you can't acknowledge that, then who is the brick wall here? As to GC, not to keep repeating a stale argument that you apparently can't get your brain around, fighting a war and prosecuting a case of domestic violence are two different things-what might be proper with the latter would look a little foolish with the former. I could say that more people are killed from heart disease in a 5 year time frame than were killed in WWII-it wouldn't reduce the threat we faced in that era to make such a silly analogy, however.
8.5.2008 3:12pm
The Ace (mail):
True state secrets should be classified

Um, ok.

So what are "true state secrets"?

Whatever the media feels they are?

I'll end by noting that if the NY Times leaks were so damaging, why have we not seen any prosecutions of the leakers?

Oh yeah, that would go over real well.

I mean, that wouldn't preseent a political problem or anything.

do you think government should have the unfettered ability to make secret what it wants to make secret?

Mind you, from the author of:
True state secrets should be classified

Which is it?
8.5.2008 3:13pm
tarheel:

I mean, that wouldn't preseent a political problem or anything.

Well, Ace, I would argue that any secret the government is willing to prosecute someone for leaking is a true state secret. If simple fear of political damage is preventing the government from doing what it should to protect secrets, then they must not be very important secrets.

Are you physically incapable of seeing shades of gray? Is it inconceivable to imagine that government should keep some secrets but not be able to classify everything and anything it wants?
8.5.2008 3:25pm
cboldt (mail):
A rough paraphrase of the current state of surveillance law is that in order to compel a communications carrier to disclose the contents of communications, a government snooper must either have concurrence from a court (i.e., a warrant), or the call must be international (go into or out of the US).
.
Hypothetically, if the secret government policy was to disrespect those rules, and actual surveillance of purely domestic calls could be and was obtained w/o a warrant, purely on orders from an empowered element of the government, should that actual policy be protect-able as a state secret?
.
I think there is little argument that there is more security in the hypothetical, if the secret doesn't leak. The government would of course use practical limitations to conduct its surveillance (it really isn't interested in innocent communications, and lacks the time to observe all of them), but it's obviously more efficient to be able to snoop without the burden of engaging an independent over-seer. Plus, a court may reject an application, and that particular snoop may well be a person who aims to do harm.
.
And in those cases where the government decides to pursue a criminal charge, it could obtain a warrant, without disclosing the secret policy. In fact, admitting the secret policy would jeopardize the program.
8.5.2008 3:28pm
trad and anon:
True state secrets should be classified

Um, ok.

So what are "true state secrets"?

Whatever the media feels they are?
The media is generally only going to report if they if they think they're likely to get a "scoop" because the program would be seen as scandalous by much of the public. Probably because it's illegal, unless you adopt a very creative interpretation of the law. If they're just reporting on troop movements or something, it'll backfire on them.

Not a perfect system by any means, but better than the government classifying whatever they want with no checks or balances.
8.5.2008 3:30pm
SATA_Interface:
Ejo, I'll let you move the goalposts yet again. I agree with you; it's dangerous for the NYT to post those details about TSP or about the satellite phones being monitored. I read in the 9-11 Report about how AQ stopped using the phones after that article, so it's clear they thought they were secure and stopped once they had clear proof otherwise.

But the fear of a state-run media is not existential as to threaten the existence of a newspaper or tv show. The point is that the suppression ends up creating a useless media organ, and encouraging government that can be just as horrible as a group of crazies with bombs and no brains. Burma is a clear example of such a thing - keeping reporters and aid from reaching the storm-ravaged areas. You think that maybe a few people died as a result? Zimbabwe is another example - the state media accusing the victims of violence of being the perpetrators. That is state-run terror, analogous with the same effects as terrorist-run terror = dead people and nobody able to punish the actors.

I'm not trying to paint Bush and Co as the same caliber as the Burmese junta; my point is that if you offer any sane person that sort of unaccountable power, you can easily end up with a very dangerous and corrupt person - and that's someone who should have a little respect and fear of the consequences.

To Ace's contention of the media not knowing what's a real secret and what's real juicy - remember that the leaker is the one motivated by some sense of dissatisfaction with the secret project. The media isn't planting moles or hacking the White House email systems...

So you can have the usual greed or hiring traitors into the system; which you can't easily fix without large leaking penalties for the leakers. Stricter enforcement of these laws would be useful. But I also contend that if you leaked something found to be illegal, you would be protected as a legitimate whistleblower. You'd never find out anything useful again with a one-sided leaker law..

It still leaves us with those law-abiders who leak because the program is against the law and threatens law-abiding citizens without reasonable oversight or public knowledge- the point of Goldsmith's article. And if you classify everything, then any leaky discussion that isn't pre-approved becomes a crime of treason, which is absurd.

And finally, Ace, the point here is that the Democrats in Congress are also a bunch of leaders that are ineffective. The Founding Fathers would not be impressed. I'm not sure where you saw me reference the Republicans as the sole owners of blame here? The Roman Senate voted away a lot of oversight when they were scared, and the Republic suffered greatly as a result. I'm not interested in partisan discussions on this issue - this is about the structure of the government's checks &balances.
8.5.2008 3:32pm
trad and anon:
If simple fear of political damage is preventing the government from doing what it should to protect secrets, then they must not be very important secrets.
I'll say!
8.5.2008 3:34pm
Thomas_Holsinger:
Anderson,

You revealed your real agenda with this statement:
"The other is political -- until 2007, we had a stalwartly GOP Congress with no interest in oversight of a GOP president. That indeed is the situation that got us into the various messes we're in."

You don't trust the American people to do what you want. Democracy and freedom are bad things unless they produce the results you want.

You are on the other side in this war.
8.5.2008 3:34pm
ejo:
so, is it the "majority of the public scandalized" test for secrecy-shall we put it to a vote as to whether the majority of the public is scandalized by the government monitoring the calls of foreign parties? I suspect the non-scandalized vote would win. By phrasing the t&a test as "much of the public", it pretty much means "I, t&a, am scandalized by it", rendering it meaningless.
8.5.2008 3:35pm
Gregory Conen (mail):
@ejo:
Not to keep repeating a same stale arguement that you can't get your brain around, but fighting a real war against an approximately equal enemy is different from attempting to hunt down perhaps a hundred skilled fugitives and several thousand idiot fanatics.

"Unless you are willing to state that no information or tactic should be classified or kept secret, the hyperbole and rhetoric you are using means nothing."
Really? Because empirical evidence suggests that some things, like those FISA warrents, seems to stay classified pretty well under the current system.
8.5.2008 3:37pm
srg:
Thomas Holsinger,

Anderson certainly doesn't need me to defend him, but your post completely misinterprets everything he said, and your conclusions about where he stands have no relation to his post.

Why would it be unpatriotic for the Congressional GOP to exercise some oversight, and isn't it just possible that there are some areas where the Bush administration went too far? Jack Goldsmith certainly thinks so.
8.5.2008 3:41pm
The Ace (mail):
Well, Ace, I would argue that any secret the government is willing to prosecute someone for leaking is a true state secret.

And when is the last time this happened?
8.5.2008 3:45pm
Samwise:
"But the reality is, the foes hated the administration since Bush was first nominated and before he'd committed any of the sins and crimes for which they pretend to hate him. And before 9-11."

Hmmm, so the 70% of the American public who disapporove of Preident Bush's performance always hated him or at least hated him since "before 9-11? How conveinent and delusional.
8.5.2008 3:45pm
The Ace (mail):
The media is generally only going to report if they if they think they're likely to get a "scoop" because the program would be seen as scandalous by much of the public. Probably because it's illegal, unless you adopt a very creative interpretation of the law.

Hilarious.

So the TSP was seen as "scandalous" by the public now?
Or just some of the public, that makes leaking it ok?

Not the lack of any standards here. Just your silly feelings.
8.5.2008 3:47pm
Richard Aubrey (mail):
When defending a leaker, the attorney for the defense merely demands a couple of truckloads of classified material.
The judge either goes along with it--depending on his political persuasion--in which case the prosecution drops the case, or the judge refuses it in which case the defendant is human rights victim of the mean ol' Bush administration.
The hat trick is to get the defendant off, make him a victim anyway, and get additional classified material to the enemy.
As if Lynne Stewart were a one-off.
8.5.2008 3:47pm
trad and anon:
You don't trust the American people to do what you want. Democracy and freedom are bad things unless they produce the results you want.
Congress is the same as "the American people" its actions are the same as "freedom"? Try again.
8.5.2008 3:47pm
The Ace (mail):
Are you physically incapable of seeing shades of gray? Is it inconceivable to imagine that government should keep some secrets but not be able to classify everything and anything it wants?

Isn't it funny you can't logically defend whatever position you're taking here?

Why do you think that is?

So, "state secrets" are only those where if leaked, the government would prosecute the leakers.

Taking this "logic" to it's conclusion, every state secret would have to be leaked in order to confirm it's viability as a state secret.

Don't worry, 'shades of gray' says the person who has never held a security clearance!

Unreal.
8.5.2008 3:49pm
ejo:
hundred skilled fugitives and a couple of thousand fanatics-even those working overtime to minimize the threat of radical islam/jihadist terrorism do better than that and have a more realistic picture of our enemies. no wonder you can justify the crime control posture you take-if you wish away a threat or minimize it, anything is possible. now the GC standard changes again-no matter how murderous the enemy, you can only monitor their foreign communications if they have the GC mandated enemy parity ratio. SATA-our government is accountable. we have a congress. we have these things every so often called elections. that is one thing that does separate us from your shining examples. you just don't think the american people would place the same degree of concern over the issue of monitoring foreign terrorist that some posting here do, making them, of course not those people, fools.
8.5.2008 3:50pm
Gregory Conen (mail):
"shall we put it to a vote as to whether the majority of the public is scandalized by the government monitoring the calls of foreign parties? I suspect the non-scandalized vote would win."
"'I'll end by noting that if the NY Times leaks were so damaging, why have we not seen any prosecutions of the leakers?'

Oh yeah, that would go over real well.

I mean, that wouldn't preseent a political problem or anything."

If there were such broad support for the program, then why is it a political risk to prosecute Lichtblau? Why is Goldsmith concerned that "no jury will convict" him?
8.5.2008 3:53pm
tarheel:

And when is the last time this happened?

Finally, we agree. It hasn't, to my knowledge (aside from spying cases).

I guess this proves no truly damaging secrets have leaked and been published. Or it proves government is singularly incapable and unwilling to do what it takes to protect secrets.
8.5.2008 3:54pm
The Ace (mail):
Anyway, Stare Decisis for thee but not for me!!


The President, after all, is the "Commander in Chief of the Army and Navy of the United States." U.S. Const., Art. II, 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant. See Cafeteria Workers v. McElroy, 367 U.S. 886, 890 (1961). This Court has recognized the Government's "compelling interest" in withholding national security information from unauthorized persons in the course of executive business. Snepp v. United States, 444 U.S. 507, 509 , n. 3 (1980). See also United States v. Robel, 389 U.S. 258, 267 (1967); United States v. Reynolds, 345 U.S. 1, 10 (1953); Totten v. United States, 92 U.S. 105, 106 (1876). The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.



Remember, there are no yesterday's in modern liberalism. Just the feelings of today.
8.5.2008 3:54pm
The Ace (mail):
If there were such broad support for the program, then why is it a political risk to prosecute Lichtblau?

Um, because everyone in the media and all the Democrats will go into hysteria maybe?

I enjoy you pretending otherwise.
8.5.2008 3:56pm
trad and anon:
Don't worry, 'shades of gray' says the person who has never held a security clearance!
Whereas you have, o anonymous internet commenter?

And I am shocked—shocked!—to learn that government bureaucrats think that the program that employs them is absolutely vital to the security of our country.
8.5.2008 3:58pm
The Ace (mail):
Finally, we agree. It hasn't, to my knowledge (aside from spying cases).

Actually, here is a prime example:

President Bill Clinton ignored a recommendation from the CIA last month when he pardoned former Navy intelligence analyst Samuel L. Morison, the only government official ever convicted of leaking classified information to the media.


I guess that information wasn't classified.
Or something.
8.5.2008 4:04pm
SATA_Interface:
Ejo, you missed the point again. If you suppress any possible double-dealing and lying under state secrets, how would you ever possibly consider the elections as a referendum on the illegal activity??
And Zimbabwe just had an election; haven't you heard about it?

I expect Americans, smart, stupid, and everyone in between, to be able to make decisions with information in front of them that affects how both the good guys and bad guys operate every day in the country. I can't take a position about an illegal program and it's potential terror-ist killin' impact without any data, now can I? Americans can support these programs, and several programs have been reapproved or the sunset provisions removed, so I think that Americans are able to decide on their level of comfort with the different programs. I don't think you are a fool or I am a fool.

Ace, consider that the state secrets case was based on the government lying to cover its ass (poor airplane maintenance), not to protect an actual secret from an enemy. That is the yesterday I would reference. I disagree with the outcome of the cases, which is part of what we are discussing. I see enough people moan about the job done by the courts in other fields; how is this one beyond the pale?

And you apparently don't have any *feelings* on the issue? C'mon. Nice work on a mild cheap shot however...
8.5.2008 4:05pm
The Ace (mail):
Whereas you have, o anonymous internet commenter?

Um, yes, I do.

And I am shocked—shocked!—to learn that government bureaucrats

I am not, nor ever have been, a "bureaucrat"

Unlike you however, I did serve in the military.
8.5.2008 4:05pm
The Ace (mail):
And you apparently don't have any *feelings* on the issue?

Er, I am not letting my feelings dictate what qualifies as "classified."
8.5.2008 4:07pm
cboldt (mail):
-- When defending a leaker, the attorney for the defense merely demands a couple of truckloads of classified material. --
.
But when prosecuting the publisher, there is no need to know where the published material came from. All that needs to be proved, beyond the easy showing that it was published, is that the information represents an illegal disclosure that admits learning otherwise classified communications intelligence (methods and procedures of signals acquisition and code-breaking).
8.5.2008 4:08pm
Richard Aubrey (mail):
cboldt.
True, as long as the defense attorney listens to you. Which he may not.

And the question was the leaker, not the publisher. As in, if the stuff were classified, why isn't the leaker being prosecuted.
8.5.2008 4:12pm
Gregory Conen (mail):
"now the GC standard changes again-no matter how murderous the enemy, you can only monitor their foreign communications if they have the GC mandated enemy parity ratio."
I love it when you lie about my position. I've seen straw men before, but it's rare to have some actually try to make my into a straw man.
You think that the small number of dedicated operatives might have something to do with Al-Qaeda's lack of effectiveness?

Not to mention the whole "cannot moniter foreign communications" thing. I've put up with moving the goal posts before, but it's starting to get a little old. A program that apparently included US-to-US communications and communications involving US citizens. That's hardly "foreign" communication. A program that was NOT authorized by Congress, and had no judical oversight. If the case for spying was that clear, why couldn't the president get the other branches to authorize it.
8.5.2008 4:13pm
trad and anon:
I am not, nor ever have been, a "bureaucrat"

Unlike you however, I did serve in the military.
The military is chock-full of bureaucrats. In any case, the point stands. Hardly a surprise to know that government employees think the program they work for is absolutely vital.
8.5.2008 4:20pm
Gregory Conen (mail):
"Um, because everyone in the media and all the Democrats will go into hysteria maybe?"
And if support for the program is so universal, why would people go into hysteria? Or if only a liberal few would go into hysteria, why would that hysteria matter?

Of course I recognize that people would go into hysteria. That's because people are glad Lichtblau revealed the program, which is because they didn't think it should be secret, or should exist, in the first place. Which brings us to the government hiding things in order to thwart the will of the people.
8.5.2008 4:20pm
cboldt (mail):
-- And the question was the leaker, not the publisher. --
.
Adding the element of showing that the leaker provided the publisher with the material.
.
In the Risen/Lichtblau case, we don't know who the government leaker was, but we know who the publisher was.
.
Defense can demand whatever it wants - but the published information "speaks for itself." E.g., the Chicago Tribune publication of Japanese ship movement plans was self-evidently a showing that the US was able to decode coded Japanese orders. So, the Risen/Lichtblau article is self-evidently a statement that the government was undertaking surveillance without a warrant, a statement that the government has admitted. The only further showing then is that this represents a disclosure in violation of 18 USC 798.
8.5.2008 4:22pm
Thomas_Holsinger:
srg,

And you missed my point about accountability. The people that do the dying from bad decisions here, i.e., the voters, should have the ultimate responsibility for these decisions. With oversight done by the officials they elect, whom they can dump for being wrong.

Anderson justifies leaks to and from persons who are not elected, and thereby not responsible to the voters, based on their personal disagreements with the outcomes of the law enacted by the people's elected representatives. He DID NOT say the leakers were lawless or even wrong!

Which was my point. Persons who are not accountable to them that do the dying claim the right to make them die. That is not democracy.
8.5.2008 4:24pm
trad and anon:
A program that apparently included US-to-US communications and communications involving US citizens. That's hardly "foreign" communication. A program that was NOT authorized by Congress, and had no judical oversight. If the case for spying was that clear, why couldn't the president get the other branches to authorize it.
And was actually illegal under FISA, no? Unless you buy the Yoo/Addington position of "interpreting" FISA into nothingness.
8.5.2008 4:26pm
MarkField (mail):

You are on the other side in this war.


Anderson certainly is on the other side of some of the more ridiculous commenters in this thread. Fortunately, he's on the same side as America. Which leaves us wondering just why people like The Ace and ejo hate America so much?
8.5.2008 4:28pm
Anderson (mail):
You are on the other side in this war.

... and the horse you rode in on, sir. What a contemptible thing to write.

(Evidently, Mr. Holsinger moonlights as John McCain's speechwriter.)

Anderson justifies leaks to and from persons who are not elected, and thereby not responsible to the voters, based on their personal disagreements with the outcomes of the law enacted by the people's elected representatives. He DID NOT say the leakers were lawless or even wrong!

I didn't say what they ate for breakfast, either.

I was summarizing Jack Goldsmith's pragmatic argument from his book review.

Evidently, Mr. Goldsmith was also "on the other side in this war." Good thing he stepped down, before he could hand total victory to Osama and his hordes.
8.5.2008 4:30pm
trad and anon:
Anderson justifies leaks to and from persons who are not elected, and thereby not responsible to the voters
They are responsible to the market, which the last time I checked consists of voters. If the public was so opposed to this, why didn't the rest of the media report the revelation as a scandal, rather than the the scandal being the thing revealed? Why didn't their advertisers desert them to avoid the stain of being associated with such treachery? Why didn't their readers and viewers desert them for Fox News in disgust? If the public is so appalled by the revelation of illegal spying on Americansstate secrets Vital To Our National Security, why didn't they vote with their eyes?
8.5.2008 4:34pm
Ryan Waxx (mail):
Anderson:

Distracting from irresponsible leaks by the news media by pointing to alleged irresponsible classifications by government is approximately as reasonable and responsible as any other attempt to blame others for your own misdeeds.

"They MADE me do it!" is not a constructive response.

As for Ilya's assertion that you have the media on the one hand and the government on the other both overreaching with regards to secrets, there are two things you must include in that analysis:

1. When someone who classifies a secret and someone who releases a secret clash, remember that you can't unrelease a secret.

2. Its not just "media" on the one hand releasing secrets. You have multiple media organizations, and if one won't accept a leaker, they know others will. The media with the least morals will break the most stories. Which partly explains why the NYT was behind most of the controversial leaks...
8.5.2008 4:41pm
PC:
Here's a question for The Ace, ejo and all of the other folks that have implicit and explicit trust in the Federal government's competence and motives:

Ron Suskind just released a book that alleges the White House forged a letter about Saddam's ties to al Qaeda and the White House knew that Iraq had no weapons of mass destruction. If we assume what Suskind alleges is true, should we a) hang him for releasing classified information or b) shoot him for releasing classified information?
8.5.2008 4:41pm
PC:
They are responsible to the market, which the last time I checked consists of voters. If the public was so opposed to this, why didn't the rest of the media report the revelation as a scandal, rather than the the scandal being the thing revealed?


Get your hippie, free-market solutions out of here you socialist.
8.5.2008 4:45pm
Ryan Waxx (mail):

If the public was so opposed to this, why didn't the rest of the media report the revelation as a scandal, rather than the the scandal being the thing revealed


What kind of logic is this? Not only do you implicitly assume that the public will = the media will (otherwise your argument halves don't have anything to do with each other), you also don't consider the possibility that someone in a given profession might excuse excesses by others in that profession against an "outsider" because after all they may want to leak something themselves someday.
8.5.2008 4:45pm
trad and anon:
And you missed my point about accountability. The people that do the dying from bad decisions here, i.e., the voters, should have the ultimate responsibility for these decisions. With oversight done by the officials they elect, whom they can dump for being wrong.
Under your system, they'd never find out, since the media would never report anything the government classified, no matter how unnecessary or illegal.

And the idea that the voters' failure to kick someone out of office acts as a stamp of approval for every single thing they did is just ludicrous. Especially when the only alternative to the Republicans is the Democrats.
8.5.2008 4:46pm
trad and anon:
What kind of logic is this? Not only do you implicitly assume that the public will = the media will (otherwise your argument halves don't have anything to do with each other)
It's called the market. If the voters are so opposed to the revelation of the program, the media outlets that report the program as the scandal should lose business to the outlets that report the revelation as the scandal. Does the media have some special immunity to market forces?
8.5.2008 4:50pm
Anderson (mail):
Distracting from irresponsible leaks by the news media by pointing to alleged irresponsible classifications by government is approximately as reasonable and responsible as any other attempt to blame others for your own misdeeds.

Okay. I suggest that you go read Goldsmith's review, all the way to the end.

The argument is pragmatic. It's not about whether leakers, or the reporters who quote them, are good or bad. More like this:

(1) Leakers are going to leak if they want to, and reporters are going to print leaks if they want to. (We assume that political factors make it difficult in practice to, say, shut down the NYT over leaks. Exhibit A, it hasn't happened under 7 years of Bush/Cheney.)

(2) Thus, the practical question is: why do leakers leak? These are all "vetted" people, usually of the same political sympathies as their bosses. They are "good people," at least for the most part. Still, some of them leaked.

(3) Goldsmith suggests -- and given where he's been, I find him very credible here -- that good people leak when they think that the laws are being broken and that classification is being abused to shield the gov't from liability for its wrongdoing.

(4) Therefore, a White House that really cares about keeping secret what *needs* to be secret, will act in such as way as to reassure its own henchmen that what they are doing is in fact legal and proper, making careful use of classification, seeking out oversight, and conforming to procedures that will (we hope) tend to make sure that what the feds do is actually legal.

That's the argument, as I understand Goldsmith's review.
8.5.2008 4:50pm
Anderson (mail):
If we assume what Suskind alleges is true, should we a) hang him for releasing classified information or b) shoot him for releasing classified information?

What about (c), hang him and *then* shoot him? That maximizes the entertainment potential, surely.
8.5.2008 4:51pm
Ryan Waxx (mail):

(2) Thus, the practical question is: why do leakers leak? These are all "vetted" people, usually of the same political sympathies as their bosses. They are "good people," at least for the most part. Still, some of them leaked.


Assuming that all leakers are good people acting on noble impulses is approximately as stupid as assuming they are all evil. So what would you think of someone who made the opposite assumption?
8.5.2008 4:57pm
SATA_Interface:
Ryan, you just misread Anderson... He said that they are all "vetted" not that means they couldn't be Manchurian candidates or hidden Chinese operatives that look like nice Republican politicos. And for the most part, the leakers are good people not hell-bent on American destruction.

You are assuming some strawman all or nothing leaker assumption here.
8.5.2008 5:00pm
cboldt (mail):
-- Assuming that all leakers are good people acting on noble impulses is approximately as stupid as assuming they are all evil. --
.
You are of course, correct. Without knowing the leaker, there's no way to discern motive. From the government apologists point of view, all leakers are bad, all secrets are validly kept as secrets.
.
I took Goldsmith's premise as one that when a government actor concludes that following orders also represents a violation of the law, that person might leak rather than quit, out of respect for "the rule of law."
.
One solution is to make sure the government is populated with thugs who either can't discern, or have little regard for the rule of law. Fewer secrets are at risk when the lieutenants do what they are told without pang of "breaking the law" conscience. Code of Omerta on a government level.
8.5.2008 5:12pm
Anderson (mail):
Ryan: Assuming that all leakers are good people acting on noble impulses

Anderson: They are "good people," at least for the most part.

I think "misreading" is too charitable an assumption here.

But to spell things out for the impaired among us:

NOTHING is going to always stop leakers. There are post-leak penaties, but some people don't give a damn. Leaking, like death &taxes, will always be with us.

So, for grown-ups, the issue is not: How do we stop all leaks from happening? Rather, the issue is: how do we make leaks less likely?

Well, one way is to acknowledge that, if you're doing your job, most of the people in a position to leak will be vetted, security-cleared, and politically sympathetic. You then have to ask, what would make THOSE people leak?

Goldsmith, apparently from personal observation and informed inference, says: good people leak when they see the system being abused and the laws appear to be broken.

So, if you want to minimize leaks, don't abuse the system, and don't break the laws.

Hey -- it's a start.
8.5.2008 5:13pm
ejo:
lie about a position-if you state we can use certain tactics because of the size or the murderousness of the enemy that we can't use with islamic terror because they are too small, that's a lie? Might it just sound silly when your position is laid out in a somewhat mocking manner? I think I phrased your position quite well. None of you seem to want to address that the leaking of things might have bad real world consequences. We have an enemy much more able to monitor and listen to things than 60 years ago and real world examples of where they changed their tactics in response to big mouths here. Does anyone have a problem with that?
8.5.2008 5:14pm
Thomas_Holsinger:
Anderson, I apologize for misundestanding, and over-reacting, to your post. I just read your 8.5.2008 3:30pm post, and now realize you were summarizing Goldsmith's argument without advocating it.

I do stand by my contention the problem is the leakers' wrongful and, in some cases, criminal, conduct. They are not engaged in civil disobedience because they avoid responsibility for their actions. They don't like the outcome of the law so they violate it IN SECRET.

So do our enemies.
8.5.2008 5:19pm
ejo:
I think a grown up would respond that a leak which enables our enemy to know how we are tracking them is a bad thing. of course, anonymous leaks ensure that you know neither the motivations or truth of what is leaked. if the goal were so noble as to justify the leak under the Anderson standard, why wouldn't one just come out publicly?
8.5.2008 5:19pm
trad and anon:
None of you seem to want to address that the leaking of things might have bad real world consequences. We have an enemy much more able to monitor and listen to things than 60 years ago and real world examples of where they changed their tactics in response to big mouths here. Does anyone have a problem with that?
Of course the leaking of things can have real-world consequences. And indeed, when leakers leak information about legal, validly classified government programs that are actually important to national security, the media shouldn't publish them and the leakers and the publishers should be prosecuted to the fullest extent of the law.

However, none of this addresses the question at hand, which is whether it's legitimate for leakers to leak, and the media to publish, information about illegal government programs. Especially when the contention that the programs are vital to national security and large numbers of Americans have died as a result seems to be based on the government's unsubstantiated claims.
8.5.2008 5:21pm
Richard Aubrey (mail):
anderson

How about most people involved are appointed by an administration of the party not currently in the White House? Not only do they have different views, they may be extremely partisan. Careerists have additional interests such as insuring their agencies remain funded and important. IOW, turf battles.
There may be honest disagreements, but as honest as the day is long, one side is still wrong.
Claiming good faith might be the real motivation, or it might be the cover for malevolence. Giving a guy a pass because he managed to cover his malevolence and swore bitter tears of innocence betrayed is...malevolent.
8.5.2008 5:23pm
Anderson (mail):
Sigh. Ejo, I am *not* defending the leakers, any more than is Goldsmith. I am trying to understand his argument for *preventing* leaks.

Pragmatism, as you may know, is the argument from "what will work," as opposed to "what is morally correct."

Mr. Holsinger: apology accepted. In some cases, prosecuting leakers, and going after their publishers, may indeed be called for. I just don't agree that it's a uniformly applicable remedy, given the political and practical constraints.
8.5.2008 5:23pm
Anderson (mail):
Mr. Aubrey, those are perennial problems. Goldsmith is talking about not *adding* to the inescapable problems.

I would have to suppose that a Secret++ Program would involve some vetting of the people in question, so that the guy with the Che Guevara sticker on his car might be scrutinized a bit before being read into the program.

But that might expect a little too much competence.
8.5.2008 5:29pm
Thomas_Holsinger:
I also point out that the leakers consider themselves above the law because their hearts are pure and their cause is just, which is the same argument made by animal rights activists who firebomb the homes of researchers whose children are inside.

And, come to think of it, the 9/11 hijackers justified incinerating thousands of people in the name of a higher cause too. Hiding in secret to carry out their misdeeds. Terrorists do that.

The leakers aid and abet the terrorists. Each in the name of their respective higher causes. The terrorists just don't pretend to be doing their victims a favor. This is a distinction without a difference for the victims.

And the leakers know very well what the law is. They disagree with it. And disobey it because they can get away with that. That needs to change.
8.5.2008 5:42pm
Anderson (mail):
Mr. Holsinger would be an interesting companion at a community-theater production of A Man for All Seasons, or Antigone.
8.5.2008 5:46pm
The Ace (mail):
A program that apparently included US-to-US communications and communications involving US citizens. That's hardly "foreign" communication

Love it!

"Apparently" is now did!
8.5.2008 5:48pm
cboldt (mail):
-- I do stand by my contention the problem is the leakers' wrongful and, in some cases, criminal, conduct. They are not engaged in civil disobedience because they avoid responsibility for their actions. They don't like the outcome of the law so they violate it IN SECRET. --
.
Is it possible for a government or administration to do the same thing? That is, not like the restraint imposed by law, and violate it in secret.
8.5.2008 5:48pm
PC:
Is it possible for a government or administration to do the same thing?


No. The conservative, and therefore correct, position is to always trust the government to do the right thing.
8.5.2008 5:52pm
Thomas_Holsinger:
trad,

You asked, "However, none of this addresses the question at hand, which is whether it's legitimate for leakers to leak, and the media to publish, information about illegal government programs."

I note that you use the term, "legitimate", as opposed to "lawful". "Legitimate" in this context is a weasel word. The 9/11 hijackers certainly thought their incineration of thousands of Americans was "legitimate". The animal rights activists who firebombed a Santa Cruz home, with children inside, earlier this week almost certainly believed their actions were "legitimate".

The American people, in the exercise of their rights as a free people, ELECTED a Congrees who enacted the laws whereby a President similarly ELECTED by the American people, adopted regulations and security classifications to secure their lives and liberty. This is called "democracy" and "self-government". And the Congress ELECTED by the American people enacted laws giving it the responsibiility for oversight and correction of abuses of such regulations and classifications.

If those law, regulations and classifications do not carry a presumption of legitimacy, nothing does.

No one elected the leakers. No one responsible to the voters authorized the leakers to use their discretion to leak. The leakers are doing it all on their own. In secret. Because they believe their cause is just and their hearts are pure.

And because they can get away with it.
8.5.2008 6:00pm
The Ace (mail):
In any case, the point stands. Hardly a surprise to know that government employees think the program they work for is absolutely vital.

You have a real hard time with reading comprehension.

I am not a government employee. Nor was I arguing for any particular program.
8.5.2008 6:03pm
The Ace (mail):
It's called the market. If the voters are so opposed to the revelation of the program, the media outlets that report the program as the scandal should lose business to the outlets that report the revelation as the scandal. Does the media have some special immunity to market forces?

Hilarious.

So again, nothing should be classified then, right?
8.5.2008 6:05pm
The Ace (mail):
Of course I recognize that people would go into hysteria. That's because people deranged leftists are glad Lichtblau revealed the program, which is because they didn't think it should be secret, or should exist, in the first place. [AGAIN, GOVERNMENT BY FEELING] Which brings us to the government hiding things in order to thwart the will of the people

I fixed that for you.

You are simply deranged.
8.5.2008 6:07pm
The Ace (mail):
Get your hippie, free-market solutions out of here you socialist.

Seriously, when something that stupid is typed, and you cheer it on with your silly snark, you do nothing but beclown yourself.

What I find comical about all of this is that you all are pretending the righteous indignation about Valerie Plame never took place.
8.5.2008 6:09pm
The Ace (mail):
In contrast to legal powers, which also allow us to moniter our enemies as they communicate with each other. Even in the US, provided we have evidence that they're our enemies.

Laugh out loud funny.

Your experience in signals intelligence has been ______?

Don't worry, we all know the answer to that.
8.5.2008 6:12pm
The Ace (mail):
Ron Suskind just released a book that alleges the White House forged a letter about Saddam's ties to al Qaeda

Over the top absurd.

Too bad the White House never claimed any such letter existed though.
8.5.2008 6:14pm
The Ace (mail):
Of course the leaking of things can have real-world consequences. And indeed, when leakers leak information about legal, validly classified government programs that are actually important to national security, the media shouldn't publish them and the leakers and the publishers should be prosecuted to the fullest extent of the law

Hilarious.
I remember you being upset when the existence of the Terrorist Finance Tracking Program was revealed.

Under your "logic," a program isn't "validly" classified unless it is vetted through the media and the public then gets to boycott the paper publishing the information.
8.5.2008 6:19pm
ObeliskToucher:
Anderson,

What was the power of the Dem members of the committee to issue subpoenas and to compel hearings on topics of interest to them?

The power to stand in the well of the Senate and/or House and object loudly in the full view of CSPAN and the world to a program that they felt was wrong and/or illegal, free from legal sanction due to the privileges allowed to the representatives under Art I, Section 6.
8.5.2008 6:22pm
ejo:
right, if people are upset by the leak, it shouldn't have been leaked, should have remained a secret, and the anti-secret gang will be in the forefront of going after the leakers and papers. anyone imagine that happening-people here are defending the NYT articles despite the fact that folks were upset with it and, under the market force theory, its stock has tanked.
8.5.2008 6:25pm
The Ace (mail):
By the way, those Anti-American - hide in order to thwart the will of the people - Clinton DOJ lawyers took this view on the matter:


We view that brief [for the Appellees, American Foreign Serv. Ass'n v. Garfinkel, 488 U.S. 923 (1988) (No. 87-2127) ("AFSE Brief").] as the controlling statement of the views of the Department of Justice on the issues presented by the panel's questions (c) and (f). Accordingly, we will cite to that brief in this opinion in the same manner as we would cite an opinion of this Office.
...
This position is based on the following separation of powers rationale:


[T]he President's roles as Commander in Chief, head of the Executive Branch, and sole organ of the Nation in its external relations require that he have ultimate and unimpeded authority over the collection, retention and dissemination of intelligence and other national security information in the Executive Branch. There is no exception to this principle for those disseminations that would be made to Congress or its Members. In that context, as in all others, the decision whether to grant access to the information must be made by someone who is acting in an official capacity on behalf of the President and who is ultimately responsible, perhaps through intermediaries, to the President. The Constitution does not permit Congress to circumvent these orderly procedures and chain of command -- and to erect an obstacle to the President's exercise of all executive powers relating to the Nation's security -- by vesting lower-level employees in the Executive Branch with a supposed "right" to disclose national security information to Members of Congress (or anyone else) without the authorization of Executive Branch personnel who derive their authority from the President.






Imagine if the left actually knew anything about this topic...
8.5.2008 6:29pm
PC:
Too bad the White House never claimed any such letter existed though.

You got me there, The Ace. Bang up job.
8.5.2008 6:29pm
The Ace (mail):
The power to stand in the well of the Senate and/or House and object loudly in the full view of CSPAN and the world to a program that they felt was wrong and/or illegal, free from legal sanction

To bad the Democratic Congressional &committee leadership never thought of this when they were briefed on the Terrorist Surveillance Program.

Funny how they never said a word, huh?
8.5.2008 6:36pm
The Ace (mail):
You got me there, The Ace. Bang up job.

Huh?

So a memo is now a "forged letter" to you?
8.5.2008 6:37pm
The Ace (mail):
You got me there, The Ace. Bang up job.

Um, the first link doesn't mention the White House and the 2nd link doesn't mention any "letters."

But I guess it is all the same to you.

Which of course is why you're just posting links and not any relevant facts.
8.5.2008 6:38pm
PC:
So a memo is now a "forged letter" to you?


Quoted in the Freeper post:
Details of Atta's visit to the Iraqi capital in the summer of 2001, just weeks before he launched the most devastating terrorist attack in US history, are contained in a top secret memo written to Saddam Hussein, the then Iraqi president, by Tahir Jalil Habbush al-Tikriti, the former head of the Iraqi Intelligence Service.

From the Politico (covering Suskind's book and The Telegraph story that originally reported on the memo/letter):
The letter's existence has been reported before, and it had been written about as if it were genuine. It was passed in Baghdad to a reporter for The (London) Sunday Telegraph who wrote about it on the front page of Dec. 14, 2003, under the headline, "Terrorist behind September 11 strike 'was trained by Saddam.'"

The Telegraph story by Con Coughlin (which, coincidentally, ran the day Hussein was captured in his "spider hole") was touted in the U.S. media by supporters of the war, and he was interviewed on NBC's "Meet the Press."


Like, whoa. One is a memo and one is a letter! It's so confusing!

But you still haven't answered the hypothetical question, The Ace: hanging or shooting for the traitor Suskind? If Suskind's reporting is true, (which I highly doubt, because like you I implicitly trust everything the government tells me) Suskind has leaked classified info and deserves to be punished. amirite?
8.5.2008 6:56pm
trad and anon:
I note that you use the term, "legitimate", as opposed to "lawful". "Legitimate" in this context is a weasel word. The 9/11 hijackers certainly thought their incineration of thousands of Americans was "legitimate". The animal rights activists who firebombed a Santa Cruz home, with children inside, earlier this week almost certainly believed their actions were "legitimate".
Huh? "Legitimate" is vague, but what I'm trying to get at is whether their actions merit our criticism. What has this got to do with animal-rights terrorists?

The American people, in the exercise of their rights as a free people, ELECTED a Congrees who enacted the laws whereby a President similarly ELECTED by the American people, adopted regulations and security classifications to secure their lives and liberty. This is called "democracy" and "self-government". And the Congress ELECTED by the American people enacted laws giving it the responsibiility for oversight and correction of abuses of such regulations and classifications.
Congress giving itself more power? Imagine that!

I really don't get this theory that if one part of the government breaks its own laws, and another part of the government chooses not to do anything about it, the media is under the obligation not to tell the public, and the rest of us are under the obligation to condemn it if it does.
8.5.2008 7:00pm
Thomas_Holsinger:
Note that Trad now has issues with Congress enacting mechanisms for its oversight of the Executive branch's implementation of Congressional statutes.

Crank.
8.5.2008 7:09pm
The Ace (mail):
You got me there, The Ace. Bang up job.

Love what is going on here.

First, there is a claim that the White House "forged a letter."

Then, because of this:
contained in a top secret memo

I'm supposed to infer that the "top secret memo" came from the White House.

With no evidence, of course.

On top of: "It was passed in Baghdad to a reporter" adds complete incoherence to this "story" as a) the White House isn't in Baghdad b) a memo and the letter passed in Baghdad are not the same thing.

But of course the incoherence of this breaking news doesn't matter. Just the allegation and subsequence hysterical inferences.

One is a memo and one is a letter! It's so confusing!

Neither of which are linked to the White House.

I guess the words "memo" and "letter" are now the same too.
At least in liberal land.

Suskind has leaked classified info and deserves to be punished. amirite?

Yes. It's funny how all you people who were in total hysterics over Valerie Plame keep asking such silly questions. Or are you against the rule of law now?

What I find most comical about all of this, is that Bush didn't need any letter, didn't fake any letter, and you people are still harping on decisions taking place almost 6 years ago.
8.5.2008 8:01pm
The Ace (mail):
because like you I implicitly trust everything the government tells me

I think you should continue arguing against things I've never said.

While of course pretending that a memo, which as reported at the time was a memo, not a "Habbush letter" are exactly the same.

Suskind has leaked classified info and deserves to be punished.

Really?

He writes in the acknowledgments section at the end of the book: "It should be noted that the intelligence sources who are quoted in this book in no way disclosed any classified information. None crossed the line."


Do try and keep up with your own propaganda.
8.5.2008 8:07pm
The Ace (mail):
"The White House had concocted a fake letter from Habbush to Saddam, backdated to July 1, 2001," Suskind writes. "It said that 9/11 ringleader Mohammad Atta had actually trained for his mission in Iraq -- thus showing, finally, that there was an operational link between Saddam and al Qaeda, something the Vice President's Office had been pressing CIA to prove since 9/11 as a justification to invade Iraq. There is no link."

When did the President or Vice President ever mention this letter? Ever?

Note: references to memos in newspapers do not count.
8.5.2008 8:09pm
PC:
You forgot a point, The Ace. The White House can not physically write a letter. It's a building. It has no hands. How can anyone trust a reporter that says a building can write a letter? The pen and paper would have to be huge.
8.5.2008 8:09pm
The Ace (mail):
PC,

can you point out when the President or Vice President ever mentioned this letter as proof of anything?

Thanks!
8.5.2008 8:18pm
PC:
can you point out when the President or Vice President ever mentioned this letter as proof of anything?


Never claimed they did. I'm still trying to figure out how a Pulitzer Prize winning journalist is dumb enough to think that an inanimate object can write, let alone forge a letter (or a memo. Again, it's very confusing trying to separate the two).

Perhaps next we can examine the leading and kerning on the hand written letemo (that's a letter/memo. I just made that word up so the discussion wouldn't devolve into trivialities). Did the White House (anthropomorphized at this point) even have access to the font that the letemo was written in?
8.5.2008 8:38pm
The Ace (mail):
Per some earlier comments of:

If the public was so opposed to this, why didn't the rest of the media report the revelation as a scandal, rather than the the scandal being the thing revealed?

And,
because the program would be seen as scandalous by much of the public. Probably because it's illegal, unless you adopt a very creative interpretation of the law.


Yes, sort of like:


Since your historic victory in the primary, there have been troubling signs that you are moving away from the core commitments shared by many who have supported your campaign, toward a more cautious and centrist stance--including, most notably, your vote for the FISA legislation granting telecom companies immunity from prosecution for illegal wiretapping, which angered and dismayed so many of your supporters.

If the wiretapping was "illegal" why did no Democrats attempt stop it?

Don't worry leftists, coherence isn't your strong suit.
8.5.2008 8:54pm
The Ace (mail):
I'm still trying to figure out how a Pulitzer Prize winning journalist is dumb enough to think that an inanimate object can write, let alone forge a letter

Mind you, from the author of:



Ron Suskind just released a book that alleges the White House forged a letter about Saddam's ties to al Qaeda


Don't worry, coherence isn't your strong suit
8.5.2008 8:56pm
The Ace (mail):
Never claimed they did

Of course not!

I mean, why would the White House go and have a memo forged and then never reference it!??

Kind of defeats the whole purpose, huh?

Don't worry, coherence isn't your strong suit.
8.5.2008 8:58pm
The Ace (mail):
Never claimed they did

Funny, but when I said "Too bad the White House never claimed any such letter existed though."

You seemed to take exception to that.

Don't worry, the White House forged a letter and then never cited it as evidence of a connection between Iraq and Atta/Bin Laden/AQ!

Just keep posting seemingly ominous snippets inferring they did then quickly back off the claim. That's more fun to watch.

On top of the fact Suskin published classified info!
8.5.2008 9:04pm
Psalm91 (mail):
Ejo:

"would you trust a reporter today with the operational secrets that were kept in earlier wars? would you feel confident in a reporter today not printing that we had cracked codes in earlier wars? the leaked stories of Lichtblau weren't much different in kind or nature, yet to the front page they went."

Mr. Novak just retired. Mr. Libby's sentence has been commuted and Mr. Rove's pardon is pending release on or before January 19, 2009. The point is that these people would release secrets if they believed it would further their own agenda.
8.6.2008 1:51am
ejo:
good analysis. haven't we given up on the plame as a secret agent talking point, given that no one was charged with any such offense given that she wasn't?
8.6.2008 10:33am
Richard Aubrey (mail):
ejo.
And the leaker wasn't prosecuted.

It all depends....
8.6.2008 11:37am