Patterico's Pontifications

6/23/2006

Can Journalists Be Prosecuted for Publishing Classified Information? Should They Be?

Filed under: Dog Trainer,General,Law,Terrorism — Patterico @ 12:52 pm



Can the reporters and editors at the New York Times and Los Angeles Times be prosecuted for knowingly publishing classified information in an unauthorized manner, resulting in harm to the security of the United States? And if so, should they be?

I don’t know the answer for sure. When I call for an independent prosecutor (as I did in a previous post), I am seeking to find the people in the government who leaked this information. To find those people, we are going to have to demand that the reporters tell us who they are. Consequently, I want subpoenas issued to Eric Lichtblau, James Risen, and Bill Keller of the New York Times, and to Josh Meyer, Greg Miller, Doyle McManus, and Dean Baquet of the Los Angeles Times. If the reporters won’t disclose their sources, I want them thrown in the pokey, Judy Miller-style, until they do. This is far more important than the Valerie Plame case and I want to see it treated as such.

As to the separate question of whether these folks can and/or should be criminally prosecuted, I haven’t made up my mind. I lean toward the conclusion that prosecutions are possible and wise. But it’s not as obvious as you might think. In the context of the current situation, the answer may seem obvious. But it is easy to imagine other situations where it is not.

Let’s hypothesize that, in the future, President Hillary Clinton suspends an important operation against a terrorist organization because of concerns that the operation relies too heavily on racial profiling. A concerned career Justice Department official writes a memo to President Clinton disputing the allegations of racial profiling, and warning of dire consequences if the program is suspended. The memo is classified. Later, a terrorist cell that could have been stopped by the program sets off a dirty bomb in downtown Chicago. Thousands are killed. And someone leaks the classified memo to the New York Times, which publishes it.

Should the reporter be prosecuted? I think it’s obvious he should not be.

The fundamental questions include the following:

  • Is the information classified because its release would jeopardize the country’s safety? Or is it classified because its release would tend to embarrass the Administration?
  • In cases where there may be aspects of both, who gets to decide whether the information should be released?

I think most people would agree that the press should be able to publish information that has no real security value, but has been classified only to prevent embarrassment to a presidential administration — such as my example above. But I also think most people think that an administration ought to be able to punish people who publish classified information that has high security value, when there is absolutely no positive societal value to the dissemination of the information — such as my example from a previous post of publishing D-Day plans in advance of the attack.

But few scenarios are so obvious in either direction. And so the question arises: who gets to decide? Is it really the case that the press is allowed to take matters into its own hands, and the consequences to the country be damned?

It’s a tough issue, but there’s a good argument that Congress gets to decide, within the bounds of the First Amendment — and that it has already done so. The applicable laws, and the wisdom of applying them to journalists, is discussed in links provided in the extended entry, which provide some excellent high-level discussion of the issue on both sides.

For what it’s worth, I tend to think that, in the current context, the pro-prosecution commentators have the better argument. But I think it’s a tougher question than it might initially appear.

First, Jonathan Adler argues against prosecution for publication of classified information:

At some point, conservatives will not be running the Justice department, and the targets of these investigations might not be left-leaning newspapers. Rather, they could be right-leaning publications pointing out the national-security missteps of a liberal administration. Prosecutorial authority should not be used to further political ends—and certainly not to curtail legitimate reporting or public discourse.

The Founding Fathers understood that a free and independent press is critical to self-governance and to the constitutional order they established. The Constitution states that Congress “shall make no law” abridging the freedom of the press. This mandate is clear and unmistakable. The press should be free to publish news reports without fear that Congress will criminalize those publications.

Publishing classified information is not the same thing as stealing state secrets or spying for the enemy. There is a distinction between clamping down on government employees who leak sensitive national security information and targeting the reporters who publish those leaks. It is one thing to question the wisdom or propriety of publishing sensitive national-security information, or to allege media bias. But it is quite another to call for the criminal prosecution of journalists for reporting on matters of public concern, even when those matters implicate national security. Not every embarrassing or unfortunate disclosure is a criminal act.

Sensitive information should be treated sensitively, even by journalists. Conservatives, however, should be wary of novel applications of vaguely worded criminal statutes, particularly in the face of clear constitutional text. If the Justice department were to go ahead and prosecute journalists for reporting on such information, it would unduly hamper press freedom and set a dangerous precedent that conservatives would come to regret.

This link quotes different experts who reach different conclusions:

The most authoritative analysis of the 1917 law, by Harold Edgar and Benno C. Schmidt Jr. in the Columbia Law Review in 1973, concluded, based largely on the law’s legislative history, that it was not meant to apply to newspapers.

A second law is less ambiguous. Enacted in 1950, it prohibits publication of government codes and other “communications intelligence activities.” Andrew C. McCarthy, a former federal prosecutor who took part in terrorism investigations in New York after the Sept. 11 attacks, said that both The Times, for its disclosures about the N.S.A. program, and The Post, for an article about secret C.I.A. prisons, have violated the 1917 law. The Times, he added, has also violated the 1950 law.

“It was irresponsible to publish these things,” Mr. McCarthy said. “I wouldn’t hesitate to prosecute.”

Gabriel Schoenfeld has an excellent discussion of the issue here. He disagrees with Adler. He quotes 18 U.S.C. section 798, which is the 1950 law discussed above, and says:

Not only is this provision completely unambiguous, but Edgar and Schmidt call it a “model of precise draftsmanship.” As they state, “the use of the term ‘publishes’ makes clear that the prohibition is intended to bar public speech,” which clearly includes writing about secrets in a newspaper. Nor is a motive required in order to obtain a conviction: “violation [of the statute] occurs on knowing engagement of the proscribed conduct, without any additional requirement that the violator be animated by anti-American or pro-foreign motives.” The section also does not contain any requirement that the U.S. be at war.

Schoenfeld’s conclusion, regarding the NSA program, would appear to apply with at least equal force to the publication of the details of the Swift program:

What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism. If information about the NSA program had been quietly conveyed to an al-Qaeda operative on a microdot, or on paper with invisible ink, there can be no doubt that the episode would have been treated by the government as a cut-and-dried case of espionage. Publishing it for the world to read, the Times has accomplished the same end while at the same time congratulating itself for bravely defending the First Amendment and thereby protecting us—from, presumably, ourselves. The fact that it chose to drop this revelation into print on the very day that renewal of the Patriot Act was being debated in the Senate—the bill’s reauthorization beyond a few weeks is still not assured—speaks for itself.

The Justice Department has already initiated a criminal investigation into the leak of the NSA program, focusing on which government employees may have broken the law. But the government is contending with hundreds of national-security leaks, and progress is uncertain at best. The real question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate secret and what is not. Like the Constitution itself, the First Amendment’s protections of freedom of the press are not a suicide pact. The laws governing what the Times has done are perfectly clear; will they be enforced?

Schoenfeld, by the way, appears to dispute Adler’s contention that no such prosecution has ever occurred before. Power Line has also analyzed the law and comes to the same conclusion.

Going back to the link above that set forth the Edgar and Schmidt analysis:

Even legal scholars who are sympathetic to the newspapers say the legal questions are not straightforward.

“They are making threats that they may be able to carry out technically, legally,” Geoffrey R. Stone, a law professor at the University of Chicago and the author of “Perilous Times: Free Speech in Wartime,” said of the administration. The law, Professor Stone added, “has always been understood to be about spying, not about newspapers, but read literally it could be applied to both.”

Others say the law is unconstitutional as applied to the press under the First Amendment.

“I don’t think that anyone believes that statute is constitutional,” said James C. Goodale, who was the general counsel of The New York Times Company during the Pentagon Papers litigation. “Literally read, the statute must be violated countless times every year.”

Rodney A. Smolla, the dean of the University of Richmond law school, took a middle ground. He said the existing laws were ambiguous but that in theory it could be constitutional to make receiving classified information a crime. However, he continued, the First Amendment may protect newspapers exposing wrongdoing by the government.

But what if the newspapers aren’t exposing wrongdoing? What if they are simply publishing classified information about a legal program that has had good success in capturing terrorists?

That’s the problem with the recent articles. High-level officials have provided concrete examples of real-world successes — successes that will probably save countless lives in the future. Against that, the articles have only the “concern” that the program might possibly violate some laws — despite the firm conclusion of government officials that it doesn’t.

If it turns out that the program was legal, and that it did save lives, and was properly classified, is the First Amendment really going to keep these journalists out of prison? And should it?

I have to say, if I were these reporters and editors, I’d be nervous.

59 Responses to “Can Journalists Be Prosecuted for Publishing Classified Information? Should They Be?”

  1. Could this be an approriate place for prosecuting all of them and allowing jury nulification to be applied?

    galletador (b58eba)

  2. If it turns out that the program was legal, and that it did save lives, and was properly classified, is the First Amendment really going to keep these journalists out of prison? And should it?

    In these circumstances, my answer is “yes,” there should be criminal prosecutions. In your hypothetical regarding President Hillary Clinton, the answer would be “no,” because the disclosure of the memo at that point in time has no adverse effects on national security in the future.
    As you indicate, other fact patterns could be murky, and the answer is not clear-cut. But I think that practical and political considerations would limit improper prosecutions. A president is not going to prosecute newspaper employees unless he feels that he will prevail in the court of public opinion as well as in a court of law. And from the newspaper’s perspective, if they feel that the issue is of such public importance that they feel they need to violate the law by publishing classified information, then they need to be willing to endure the consequences, including a criminal prosecution. That’s what civil disobedience is all about. Dr. King and Ghandi fully understood that they were violating the law and would have to go to jail. Their willingness to endure the consequences was what gave their actions such moral authority.

    Tim K (7e41e8)

  3. I think that publishing is protected under the First Amendment except in a case of “clear and present danger” which is an almost impossible standard to meet. Conspiring with a government employee to acquire classified information is an entirely different case. Being a reporter with intentions of merely publishing confers no more immunity than being Osama bin Laden with intentions of warning one’s operatives. I do not see it at all as a fine distinction.

    nk (f58916)

  4. Tim K,
    well put. I think we are doing pretty well if we simple try to apply the law, because you have to get past several people who will act as filters, since the prosecutor is going to have to believe he has a fighting chance, the judge has to at least think it applies enough not to toss, or he might get the boot if it is totally off the wall, and then you have to convince some group of people that it really wasn’t in their best interest. Should be easy if it is obvious one way or the other and mirky if it should be mirky. Perhaps I’m being optimistic.
    Nice on the “civil disobedience” comment, Tom K. The mis-understanding of the term really bothers me these days (Like the media calling “protests that turned violent” civil disobedience)

    galletador (b58eba)

  5. The Mike Nifong precedent for protecting the people’s interests should be applied.

    Since we have grounds to believe a crime may have been committed, arrest all those present, hold each of them on $400,000 bond, and set a trial date sometime year after next.

    Oh yes, ignore any and all exculpatory evidence.

    Black Jack (d8da01)

  6. Is the information classified because its release would jeopardize the country’s safety? Or is it classified because its release would tend to embarrass the Administration?

    It sounds like your question is whether the classification is proper or not.

    The case to watch is the supposedly (I don’t know the history) unprecedented prosecution of two AIPAC lobbyists. They received and passed on the information, much like a reporter would.

    http://www.washingtonpost.com/wp-dyn/content/article/2005/11/11/AR2005111101649.html

    actus (6234ee)

  7. Time for an old fashioned fatwa on the New York Times.

    Perfect Sense (024110)

  8. It sounds like your question is whether the classification is proper or not.

    I don’t think that’s the only question, but it’s definitely one of the most important ones.

    The finance-tracking operation, I suspect, was properly classified.

    Patterico (50c3cd)

  9. I don’t think that’s the only question, but it’s definitely one of the most important ones.

    I’d say even your hypo with the racial profiling shows the problem with the formulation of classified ‘only prevent embarassment.’ There could be information in the classified memo that describes procedures that though stupid, are necessary.

    The finance-tracking operation, I suspect, was properly classified.

    The real interesting question is whether the people at SWIFT, abroad, could discuss this stuff. And whether the press could then talk about it with them, and then print the story.

    actus (6234ee)

  10. […] He wants them subpoenaed to find out who leaked the bank info, and then, after the leakers are put away, it’s their turn at the defense table. […]

    Hot Air » Blog Archive » Patterico on Times reporters: Lock ‘em up (d4224a)

  11. There could be information in the classified memo that describes procedures that though stupid, are necessary.

    True enough.

    The real interesting question is whether the people at SWIFT, abroad, could discuss this stuff. And whether the press could then talk about it with them, and then print the story.

    Yeah. If that’s all that happened, it might be different. But it sure doesn’t seem like they’re the ones who leaked it, does it?

    Probably another Mary McCarthy, seeking to get Hillary elected in 2008.

    Patterico (50c3cd)

  12. Yeah. If that’s all that happened, it might be different. But it sure doesn’t seem like they’re the ones who leaked it, does it?

    From the looks, I don’t know who leaked it. It could be that the story came from SWIFT, and then the reporters started asking for comments on it from people in our government.

    actus (6234ee)

  13. An interesting hypothetical case from history:

    Suppose a Chicago newspaper discovered that Enrico Fermi had constructed an atomic pile under the statium at the University of Chicago. Could the paper reasonably regard the pile a great public danger and publish the information, even though the project was maximally Top Secret?

    So, if you argue that strong public interest allows publication of secrets, how would you rule on this? Do the editors go to jail for publsihing Manhattan Project secrets?

    Kevin Murphy (805c5b)

  14. Patterico,

    You may find the following comment by Jeff Goldstein amusing, yet insightful. I know I did.

    Actus has trouble with me posting the names of Andrew Haggerty and Mary Donnelly of Broome Community College—whose information is publicly available—but he has no trouble with the NYT publishing classified information that, though it knows it to be legal,will nevertheless undermine the program and jeopardize national security. All because he has done the calculations and doesn’t fear being blown up in a terrorist attack.

    Curious. You’d almost think he has no intellectual center and is simply interested in being contrarian. But that can’t be true, can it?

    Posted by Jeff Goldstein | permalink
    on 06/22 at 10:42 PM

    Keep up the interesting work Patterico.

    EFG

    EFG (3177ba)

  15. Although I believe that the Times reporters have violated 18 U.S.C. 798, and that the First Amendment would not preclude a criminal prosecution, I don’t think that this is the most important task, or that it should be the first step taken. The first task is to identify the government employees who leaked classified information to the reporters, and prosecute them to the full extent of the law. And step one in that endeavor is to subpoena the reporters. If they refuse to identify their sources, they go to jail. If one or more reporters then talk, government employees would think twice before making such disclosures in the future. If the reporters don’t talk, they will get some well-deserved jail time.

    Tim K (4c4927)

  16. The problem that our esteemed host correctly identifies is one of distinguishing between publishable classified info and unpublishable classified info. But that’s the rub, isn’t it? The info is classified to begin with because the President has decided that the national interest requires that it remain secret. How would you ever sustain a conviction for publishing classified info if the person deciding whether to publish were required to make a determination of publishable vs. nonpublishable, after the classified info had been disclosed to that person by a person who presumably was authorized to know the secret info but not necessarily to disclose it or authorize publication?

    The decision by the President whether to classify information doesn’t need to be and shouldn’t be based on the same criteria that determine whether publication of the information can be punishable as a crime. I would venture that most unauthorized disclosures of classified information are dealt with by firing the government employee (or terminating the contract, if a contractor, or requiring as a condition of the contract that the contractor fire the offending employee), rather than with prosecution. And that’s probably enough in most cases, and the fact that those cases aren’t appropriate for prosecution doesn’t mean that the information should be freely available. If we want access to general info held by the government (such as that given by FOIA), then we had better give the President broad powers to classify information in order to keep it from unfriendly eyes.

    In order to get a conviction for publication that can withstand a challenge on constitutional grounds, it seems that it would have to be under a statute that wasn’t overbroad or vague on its face or in its application. As Patterico’s example suggests, using classification itself as the standard is probably overbroad, but using classification plus X might very well be vague and, from a policy standpoint, might tend to water down the importance of classification.

    Ultimately, letting Pinch, Keller and Risen go free, with their only punishment being the contempt of an angry nation, is probably part of the price we have to pay for having both our First Amendment guarantees and an Executive with broad powers to regulate dissemination of sensitive information. One of our nation’s strengths has been the inviolability (more or less — still more than elsewhere in the world) of our First Amendment guarantees. Those have been under some stress lately, both from government efforts to limit free speech (McCain Feingold) and irresponsibility of the institutional press (Pinch, Keller, Risen, Priest . . . ), with the latter making the former look like not such a bad idea. Although introducing Pinch and Keller to their new bestest friends and cellmates might be satisfying, it wouldn’t be worth it.

    TNugent (6128b4)

  17. You may find the following comment by Jeff Goldstein amusing, yet insightful. I know I did.

    At first. But then, you realize that there isn’t just one standard we are considering. We are considering criminal sanctions for the press vs. those that sign on to pledges. We are considering the first amendment vs. higher bars set by “online integrity” pledges.

    Different standards apply. And it certainly is insightful to figure that out.

    Jeff’s a smart guy. Capable of sorting through this stuff if he just thinks about it.

    actus (6234ee)

  18. Patterico, once again you trying to claim that the First Amendment protects “good speech” (ie speech of which Patterico approves) but not “bad speech” (ie speech of which Patterico disapproves). This is not the case, the First Amendment protects all speech. Any prosecution of the New York Times in a case like this would justifiably be seen as an attempt to intimidate and silence an opposition newspaper. That is exactly what the First Amendment is intended to prevent.

    James B. Shearer (fc887e)

  19. Mr. Shearer-

    It is true what you said about “good speech” vs “bad speech”, that are both protected by the 1st ammendment. But “criminal speech”, like libel or slander are not. So the question is, is what the NYT did an example of “bad speech” or “criminal speech.”

    Very respectfully,

    EFG

    EFG (3177ba)

  20. Thanks for the opening, James B. Comment #18.

    I’m a journalist. You’re a government-employed nuclear scientist. You give me the plans for a hydrogen bomb. My editor agrees to publish them. Who’s protected by the First Amendment? Me and my editor and you too, no matter what? Not you, but me and my editor regardless of whether we publish them? It seems to me that it takes two to commit the crime of revealing classified material — the one who reveals it and the one who asks that it be revealed — and they are both equally guilty.

    nk (f58916)

  21. James B. Shearer,
    I have to contend that. Not all speech is protect. Giving secret to an enemy is not protected speech (Im thinking more classic espionage here). Laws against swaring in public have been upheld. “Hate speech” and direct threats to life and limb or calling for the death of someone is not protected.

    You do hit on the issue of “good” and “bad” to one person, however, that is easily taken care of by the whole idea of shared values; i.e. if the majority of people feel that swaring in public is a bad thing then so be it (as that can be a difficult thing to get on a large scale, you usually only get these sorts of statues in smaller communities, not state-wide or nation-wide). That is also the advatage of a “jury of peers” system. It isn’t just one persons view of “good leaks” v.s. “bad leaks”.

    Also, gag orders exist. Is that not just initimidating a party into not speaking on a subject?

    galletador (b58eba)

  22. As members of a profession that relies heavily on the willingness of government
    officials to defy their bosses and give the public vital information, we oppose
    “leak investigations” in principle. But that does not mean there can never be a
    circumstance in which leaks are wrong the disclosure of troop movements in
    wartime is a clear example.

    — New York Times editorial, Oct. 2, 2003

    Karl (3a2275)

  23. Seems to me like you would prosecute the leaker, not the news outlet, correct?

    sharon (fecb65)

  24. The search for the leaker would require grand jury interviews with the reporters. Scooter Libby is in trouble because he is alleged to have lied to either an FBI agent or a grand jury or both. Seems fair to me. Set Keller, et al, before a grand jury and start asking questions. Making it clear that, if they tell who leaked, they will not be prosecuted but if they lie, Scooter can explain the next step and help them find counsel.

    Mike K (f89cb3)

  25. A few thoughts:

    I. How about civil action, where burden of proof is less? Suing for reckless endangerment? For journalistic malpractice? Interfering with criminal investigations? Receiving stolen merchandise (intellectual property)? Aiding and abetting the enemy? Conspiracy in working with terrorists by acting to protect their financial backing?

    If a newspaper published the name of a murder witness that was not previously known, and the following day the witness is killed by a sniper, in what way can the newspaper be held accountable, in criminal and civil proceedings?

    II. Who would decide if it is a “good leak and publish” v. a “bad leak and publish”? A prosecutor, a judge, and a jury. If Joe kills Jim, the same group gets to decide if Joe was justified because Jim was running at him with a 14 in bayonet, or if Joe was simply setting jim up when he asked him to take a look at it.

    III. ?

    But that does not mean there can never be a circumstance in which leaks are wrong the disclosure of troop movements in wartime is a clear example.
    – New York Times editorial, Oct. 2, 2003
    Comment by Karl — 6/23/2006 @ 4:31 pm

    So the NYT would not disclose “troop movements”, but they will disclose actions of justice department and intelligent officials? Why do I feel they oppose disclosing troop movements only because they don’t foresee when they will have the opportunity?? (By the way, are not intelligence and military forces moving about the world in aircraft under cover “troops that are moving?)

    Why is “yelling fire in a crowded theatre” not protected by the first amendment? because it serves to cause injury and harm without reasonable purpose. When a newspaper publishes something that can lead to injury and harm without redemptive purpose, “there ought to be a law”.

    MD in Philly (798da1)

  26. Those who leaked to the Times knew they were breaking the law. They should be identified and prosecuted. The Times clearly has violated the Espionage Act by the unauthorized publication of of classified communication intelligence, they too should be prosecuted. We are a democracy amd notwithstanding that there are many things that should not be classified-and these are not among them-George Bush, not Bill Keller was chosen to make those decisions. If they think it is their civic duty to break the law they should be willing to suffer the consequences. I hope they do.

    kent (d382e5)

  27. MD in Philly, Comment #25:

    In First Amendment cases, the burden of proof is not lessened if it’s a civil case. If you’re looking for an injunction it’s a burden practically impossible to meet — clear and present danger. For monetary damages it’s limited to actual damages — the Plaintiff has to prove what the libel cost him. I know that I sound like a broken record but we need to ignore the “publishing” and concentrate on the “acquiring” of the classified information. That’s where the ducks are.

    nk (4d4a9d)

  28. I know no more about the Law than the nest citizen, so maybe this isn’t remotely possible. Nevertheless;

    How about prosecuting the paper and the reporter that publishes classified information helpful to a national enemy for some variant of reckless endangerment?

    If convicted, they would then be open to devastating suits if a terrorist attack took place and hindsight suggested that it could have been stopped if the information had not been made public.

    This leaves the press with substantial protections: the government must convince a judge and/or jury that publishing the information has endangered the public for any legal consequences to come home to roost. Then, if there is a vaguely connected attack, a jury must be convinced that it succeeded in part because of the help that the newspaper gave the terrorists.

    On the other hand, the possibility of a serious lawsuit would make publishers a little gunshy of exposing anti-terrorist operations.

    Of course all this depends on how Reckless Endangerment is defined.

    C. S. P. Schofield (c1cf21)

  29. I don’t know where I come down on the question of directly prosecuting the reporters. But here is an interesting way to think about it.

    First, consider a hypothetical reporter involved in an old-school war, as opposed to the war on terror. The reporter follows a captain around, spying on the captain’s platoon, maybe buying info from individual soldiers. The reporter reports the whereabouts of the captain’s platoon in a newspaper. Maybe the reporter also reports on some special tactical abilities of the platoon. Would that reporter be protected under the First Amendment? I think not. That reporter is acting like a scout or spy for the enemy. In the above case, the reporter might as well be the enemy. Soldiers could shoot that reporter on sight, justifiably.

    Here’s another analogy, this one about the war on terror. If an Al-Queda opperative did exactly what Eric Lichtblau and company did and we caught the AQ opperative, what would the crime be? What would the charges be? Would they be convicted? Executed? Assume they had no knowledge of any actual terrorist activities or plans. They only know that by passing their information on it will eventually land in the hands of AQ members with plans of aggression against the US. All they do is acquire info on US counterterrorism activities and pass that info to AQ, perhaps through some AQ handler. Perhaps they pose as reporters to get the government leakers to talk.

    Is there any difference between the AQ hypo above and what Eric Lichtblau and company did? So the reporters used the MSM to get the info out. The AQ opperative uses some secret message passing system to get the info to the rest of AQ. Is there a meaningful difference?

    I think Patterico has the main issue right: It depends upon how damaging the info is. We probably need to look very closely at the actual system disclosed, what was already known anyway, how much good the system did, how much the system is damaged by its disclosure, etc.

    Assuming there is great damage to the US, the next question is whether there is some overriding public interest in the disclosure. In the above hypo about a platoon’s location, there is no overriding public interest, so the case is clear. In the present case, the overriding public interest claimed is the public’s right to know about the claimed violation of our privacy. So there are two issues to weigh against each other (1) the damage to US interests by the disclosure vs (2) the public’s interest in the disclosure. I wonder if there is relevent treason/speech case law on the subject. I’m guessing that issue (2) is actually irrelevant if the damage is great enough.

    Someone pull out your Constitutional Law books (or Lexis) and tell us what the cases say.

    The following (supporting Sharon’s view) is more from the Jonathan Adler article Patterico quotes in the post:

    As Judge J. Harvie Wilkinson III of the Fourth Circuit wrote in an Espionage Act case nearly two decades ago, the First Amendment “does not simply vanish at the invocation of the words ‘national security.’” In that case, the Justice Department successfully prosecuted a former government employee who stole classified photos of Soviet naval vessels and gave them to the press. Yet the publications that ran the photos were not prosecuted, a point emphasized by the Fourth Circuit.

    D Huff (75f096)

  30. The NYT at it again … (eyes rolling) UPDATED …

    Via Media Blog:According to the NYT’s own reporting, the program is legal. The program is helping us catch terrorists. The administration has briefed the appropriate members of Congress. The program has built-in safeguards to prevent abuse. And yet, w…

    Squiggler (72c8fd)

  31. James B. Shearer says:

    Patterico, once again you trying to claim that the First Amendment protects “good speech” (ie speech of which Patterico approves) but not “bad speech” (ie speech of which Patterico disapproves).

    Horse hockey. That is not my argument at all. That is a silly mischaracterization of my argument.

    Some speech is criminal. My links show that this speech may well be — in fact, it probably is. If you read my links, the experts seem to think that the First Amendment would not prevent such a prosecution.

    Maybe it would, says one expert, if the papers could establish that the publication of the classified information exposes government wrongdoing. As I argue in the post, that is far from clear.

    Your claim that the 1st Amendment protects “all speech” is just arrant nonsense. Otherwise, we could never prosecute any espionage in which the secrets were transmitted through speech.

    Patterico (50c3cd)

  32. […] Appoint a special prosecutor immediately. Make the reporters reveal sources or throw them in jail until they decide to cooperate. Patterico has a really thorough and very balanced view of whether the reporters and editors themselves can be prosecuted. It's worth the read if you'd like a legal view of the situation. As to the separate question of whether these folks can and/or should be criminally prosecuted, I haven’t made up my mind. I lean toward the conclusion that prosecutions are possible and wise. But it’s not as obvious as you might think. In the context of the current situation, the answer may seem obvious. But it is easy to imagine other situations where it is not. […]

    Blue Crab Boulevard » Blog Archive » I Agree (a177fd)

  33. Patterico,

    In addition to the two articles you describe in your post, there is a third that is worth reading: the May 26 testimony of Professor John Eastman before the House Permanent Select Committee on Intelligence. Like Mr. Schoenfeld, Prof. Eastman concluded that the New York Times violated the law, and that the First Amendment does not preclude prosecution. His testimony (14 pages) can be downloaded at the following location .

    Tim K (4c4927)

  34. Can reporters and their employers be prosecuted for receiving classified information without authorization from appropriate government officials?

    Stu707 (cc7fa3)

  35. Times clearly has violated the Espionage Act by the unauthorized publication of of classified communication intelligence

    Does this count as communication? bank transfers?

    actus (6234ee)

  36. Patterico, the government employees involved waive their First Amendment rights as a condition of employment, hence can be prosecuted. As for the newspapers, I learned this classified information by reading your blog. I was not authorized to receive it. Therefore, like the New York Times, you disclosed classified information to someone not authorized to receive it. Was that criminal speech on your part?

    James B. Shearer (fc887e)

  37. As for the newspapers, I learned this classified information by reading your blog. I was not authorized to receive it. Therefore, like the New York Times, you disclosed classified information to someone not authorized to receive it. Was that criminal speech on your part?

    Oh, definitely. The harm to the republic from my 2000-3000 readers reading this on my blog is incalculable. Because, if I’d never said a word, none of them ever would have heard about it.

    Excellent argument.

    Patterico (50c3cd)

  38. […] If you’re looking for a shorter, more readable argument in favor of prosecuting the reporters and editors of the New York Times and Los Angeles Times for revealing classified details of an effective anti-terror program, read this. It is a Weekly Standard piece by Gabriel Schoenfeld, whose lengthy Commentary article on the same subject was featured in this post of mine from earlier today. Here are highlights of today’s Schoenfeld piece. First, he quotes the relevant statute: Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information . . . concerning the communication intelligence activities of the United States . . . shall be fined not more than $10,000 or imprisoned not more than ten years, or both [emphasis added]. […]

    Patterico’s Pontifications » Shorter Argument for Prosecuting Reporters from the NYT and LAT (421107)

  39. I believe a class action suit is possible. Here is the approach I might take if I were talking to a lawyer:

    The NYT article did not disclose any wrongdoing by the government. They did not alledge that any individual was engaged in any wrongdoing. They did not alledge any breech of the public trust through any abuse or misuse of any information obtained by the program.

    The NYT was aware that the publishing of this information would be controversial and result in great public interest in it.

    Employees of the NYT that were in a position to approve or disapprove publication of the information were asked by representatives of the US Government not to publish the information because it would damage efforts to identify terrorists or activity in support of terrorism. Additional individuals who had served on the 9/11 commission apparently asked that the information not be published and vouched for the integrity of the program.

    The government has stated that the program has resulted in the identification of and subsequent arrest of individuals involved in terrorist acts or the support of terrorist acts.

    It is reasonable to believe that terrorist acts are unpredictable as to timing, location, nature, and scale.

    Therefore, it is reasonable to conclude that through the exposure of this program, the ability to identify and arrest terrorists or supporters of terrorism or disrupt future terrorist acts has been damaged. As a result, the exposure of this program has placed me, my family, and my community at greater risk of harm from a terrorist attack than it otherwise would be by effectivly eliminating one of the defenses our country has emplaced to protect us from such acts. In their exposure of this program in order to cause a public spectacle and further enrich their business through the sale of newspapers and display of advertizing both printed and electronic, for no apparent benefit of the American public, they have placed the American public at greater risk of injury or death.

    crosspatch (18e73b)

  40. It is true what you said about “good speech” vs “bad speech”, that are both protected by the 1st ammendment. But “criminal speech”, like libel or slander are not.

    Slander and libel aren’t crimes, they’re torts. Thus they are not examples of “criminal” speech, but of “bad speech.” The 1st amendment doesn’t protect bad speech.

    Carlos (98df3a)

  41. Say the New York Times discovered that the Bush administration had developed a tool that could, for just a second, scan a person’s brain and see exactly what they were thinking.

    Say the administration started using this tool — with extreme caution of course. First, they promised (themselves, since no one else knew they had it) that it would only be used to look for “terrorism related” thoughts.

    Second, they promised (again, themselves, since no one else knew this tool was being used) that if they happend to discover valuable thoughts that were not terror-related (say, they were about a plan to merge giant corporations that had not yet been announced to the public), these thoughts would never, never, be used for any other purpose. The administration promised this (to themselves).

    The New York Times sits down for their daily front-page meeting. The reporter who made the discovery begs to write a front page story.

    The editor (a new employee — the old editor mysteriously disappeared after the Bush administration read his thoughts) thoughtfully says, “Well, so the administration is reading our thoughts. But they have very good motivations for doing this. And if the terrorists find out they’re thoughts are being read, they might stop thinking about terrorism except in the privacy of their own homes, behind lead barriers.”

    Thankfully, cooler heads prevail, and the story is not published. Americans never learn that their thoughts are being read — but more importantly, neither to the “terrorists.”

    Phil (f88ce6)

  42. Bush administration had developed a tool that could, for just a second, scan a person’s brain and see exactly what they were thinking.

    That’s what your tinfoil is for. But it only works if your head is completely covered. Leave even an inch exposed, and that allows the Rovians to get inside your head.

    Carlos (98df3a)

  43. Carlos wrote: “The first amendment doesn’t protect bad speech.”

    Carlos, the first amendment does protect slander and libel to a degree. Libel and slander give rise for a cause of action for damages, but any attempt to make such speech criminal, or to put measures in place to prevent such speech from being made, has, in fact, been found unconstitutional.

    The government can’t prohibit/prevent slanderous or libelous speech in advance — it can only hold the speaker liable for damages caused to others after the speech has been spoken.

    Phil (f88ce6)

  44. I’m just trying to fix the endless italics . . .

    Phil (f88ce6)

  45. still trying to remove italics . . .

    Phil (f88ce6)

  46. […] We should be thankful that the NY “Will risk innocent lives to bash Bush” Times is protecting us from government monitoring of all our international financial transactions. Patterico asks, […]

    The Bullwinkle Blog » Blog Archive » No More Human Rights Violations (f9772a)

  47. I’m not a lawyer and I think it a bad idea politically to prosecute a newspaper for espionage, terason, or the like. I have a larger concern about the press arrogating to itself the powers reserved by the people under our Constitution for our duly elected government. Bill Keller was voted for by no one. Yet he has arrogated to himself the power to unilaterally declassify information that was determined by our elected government to be kept secret. There has to be a law or a provision of our Constitution that prohibits such exercise of government power by private citizens. Otherwise there is nothing to stop Wal-Mart from employing its own police force and arresting people, or simply proclaiming itself a bank and not bothering with those pesky laws that require a federal bank charter.

    I am really frightened by this, way more than I am frightened by any so-called violation of my privacy by a CIA or NSA program aimed at terrorists, of which I am not one. If I’m not happy about this Administrations’s policies and procedures in prosecuting the war on terror, I can vote it out in 2008. If I’m not happy with the New York Times revealing state secrets, where do I go to vote out Bill Keller???

    I think this s a much more fruitful line of attack against the Times and its ilk than throwing around accusations of treason and aiding the enemy. The Times is in fact engaged in something far worse. It has proclaimed itself a fourth branch of government, unelected and unsupervised, subject to no judicial oversight or Congressional authorization. This is tyranny!!!

    For a newspaper that constantly caterwauls about this President’s arrogance and abuse of power, it is also the height of hypocrisy. And it seems to me you do much more damage to pompous asses like Bill Keller by pointing out his hypocrisy and tyrannical actions than by making him a martyr to free speech by trying to prosecute him for treason or espionage.

    It would seem to me that any citizen could bring suit against Bill Keller for attempting to make himself the President of the United States and imposing a tyranny on the citizenry.

    POdinPA (959adc)

  48. The real disagreement here is over what should remain a secret, and who gets to decide. It’s become apparent that the Bush administration would prefer EVERYTHING be a secret, all the time, unless it makes them look good. That’s not irrational from their perspective, but it’s bad for the country.

    The NYT is reporting on the administration spying on American citizens. Sure, maybe they’re catching a few terrorists. But that’s not what the NYT reported. They didn’t say “the CIA is watching Muhammad Bin Zarqawi at 1543 South Street, and is about to catch him sending money to his co-terrorists in Saudi Arabia. Run Muhammad, Run!”

    No the NYT said “Hey, good citizens of America: In the name of fighting terrorism, the government is watching all of your financial transactions that until now you thought were private.” And, caught red-handed, the goverment screamed “Damnit, we were JUST ABOUT TO CATCH A TERRORIST!!!”

    Whatever. Maybe they were. But if they have enough information to know someone’s sending an international banking transaction that might lead to terrorism, they can catch that terrorist some other way, too. For that information to be meaningful, you have to know who you’re watching already. They aren’t going to DISCOVER any terrorists or terrorist plots by spying on international funds transactions.

    Phil (88ab5b)

  49. If you want to get a message to the New York Times you might do what some others
    are. Go to the Yahoo.com Finance section and click on NYT. You can be sure that a message there will be read. If you want to talk to people who actually care, you might look under the ownership tab. If your broker or fund is listed there, simply call them
    Monday morning and tell them you are switching to a broker/fund who does not own stock in the NYT. Stock brokers do not like to lose customers.

    pagar (ba389e)

  50. >>>”The government can’t prohibit/prevent slanderous or libelous speech in advance — it can only hold the speaker liable for damages caused to others after the speech has been spoken.”

    Short of using duct tape, the government can’t prevent ANY speech. It can only penalize (either civilly or criminally) the speech after it has been made. Penalizing the undesirable speech is itself a prohibition of that speech.

    Carlos (98df3a)

  51. Short of using duct tape, the government can’t prevent ANY speech.

    You mean legally or physically? Physically they can prevent speech by jailing speakers, seizing materials, etc…

    But prior restraints like that are not going to be found to be permitted very often.

    actus (6234ee)

  52. >>>Physically they can prevent speech by jailing speakers, seizing materials, etc…

    No they can’t. You can’t be incarcerated “just in case” you say someting wrong. lol! There are no criminal penalties or incarceration for speech yet to be uttered. You can only be jailed and/or fined for criminal speech ALREADY uttered. Just like civil penalties. No diff.

    Carlos (98df3a)

  53. “You can’t be incarcerated “just in case” you say someting wrong.”

    Uh, yes you can. See, e.g., the McCarthy era you conservatives remember so fondly. Though-crime prosecution abounded to stop people before they spread poisonous communist ideas.

    Phil (c83dbd)

  54. Rantings from the “reality-based” community, above. Funny you should mention McCarthy though. Recently declassified FBI files (Venona) as well as declassified Soviet files have proved that McCarthy was essentially correct. Based on how the American Left behaves today, should anybody be surprised?

    “The Venona transcripts are thousands of Soviet intelligence messages that were intercepted and decoded over four decades by the FBI and the NSA. Released over the past few years, these files prove that there was a large-scale Communist penetration of the U.S. government, and that Communist spies passed on valuable information to the KGB.”

    http://www.lewrockwell.com/orig/glazov1.html

    Based on how the American Left behaves today, should anybody be surprised?

    But as I recall, McCarthy only held HEARINGS. Nobody was imprisoned, papers weren’t “seized”, and no duct tape either.

    Carlos (98df3a)

  55. No they can’t. You can’t be incarcerated “just in case” you say someting wrong. lol!

    Legally? most probably not. But as a matter of physical, they can certainly silence someone before they speak by locking them up.

    actus (6234ee)

  56. Not if you’re wearing tinfoil.

    Carlos (98df3a)

  57. […] As I have argued before, whether to prosecute newspapers for giving up classified details of a successful anti-terror program is not a simple decision. I have discussed the relevant issues before, in a post that some misinterpreted as unqualified support for prosecution. (In fact, while I said that I found the pro-prosecution arguments persuasive, I also said that I had not yet made up my mind on the issue. That wasn’t posturing; I meant it.) […]

    Patterico’s Pontifications » Why We Shouldn’t Prosecute the Reporters and Editors of the L.A. Times and New York Times — Just Yet (421107)

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