Patterico's Pontifications


Shorter Argument for Prosecuting Reporters from the NYT and LAT

Filed under: Dog Trainer,General,Scum,Terrorism — Patterico @ 9:33 pm

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].

Sounds on point. Schoenfeld argues that it is clearly applicable to the NSA stories, but arguably not to the banking story. I think it applies to both.

Here is Schoenfeld’s conclusion:

Given the uproar a prosecution of the Times would provoke, the attorney general’s cautious approach is certainly understandable. But what might look like a prudent exercise of prosecutorial discretion will, in the face of the Times‘s increasingly reckless behavior, send a terrible message. The Comint statute, like numerous other laws on the books limiting speech in such disparate realms as libel, privacy, and commercial activity, is fully compatible with the First Amendment. It was passed to deal with circumstances that are both dangerous and rare; the destruction of the World Trade Center and the continuing efforts by terrorists to strike again have thrust just such circumstances upon us.

If the Justice Department chooses not to prosecute the Times, its inaction will turn this statute into a dead letter. At stake here for Attorney General Gonzales to contemplate is not just the right to defend ourselves from another Pearl Harbor. Can it really be the government’s position that, in the middle of a war in which we have been attacked on our own soil, the power to classify or declassify vital secrets should be taken away from elected officials acting in accord with laws set by Congress and bestowed on a private institution accountable to no one?

This sounds remarkably like what I argued earlier today.

I would alter this article in one way: by making clear that the prosecution is not of the newspapers, but of the human beings who made the conscious choice to publish classified information about anti-terror programs. Let’s not dehumanize this. People made these choices, and people should pay.

UPDATE: Also read Andy McCarthy.

UPDATE x2: Just to make it clear as to why I think 18 U.S.C. section 798 covers this:

The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients . . .

Doesn’t that sound like the program of intercepting communications used in international wire transfers routed through Swift? It sure does to me.

Again, I am throwing a fit over this story where I didn’t throw a fit over the NSA story, because this program actually sounds like it had tangible successes in the war on terror. I read the NSA stories in vain for proof of similar success stories resulting from data-mining of international phone calls, and I remember nothing. If I missed something, please tell me.

L.A. Times Distorts Crucial Details of Anti-Terror Program

Filed under: Dog Trainer,General,Scum,Terrorism — Patterico @ 5:49 pm

Everyone following the controversy over the recently disclosed anti-terror program needs to understand the way that the L.A. Times has distorted basic facts of the story. The distortions make the program sound both more menacing and less effective than it actually is.

For example, today’s article says:

In a major departure from traditional methods of obtaining financial records, the Treasury Department uses a little-known power — administrative subpoenas — to collect data from the SWIFT network, which has operations in the U.S., including a main computer hub in Manassas, Va.

Let’s compare the paper’s assertion of how “little-known” administrative subpoenas are to the 2004 testimony of Rachel Brand, Principal Deputy Attorney General of the United States:

Administrative subpoenas are a well-established investigative tool, currently available in a wide range of civil and criminal investigations. A 2002 study by the Office of Legal Policy identified approximately 335 administrative subpoena authorities existing in current law.

But what does the Principal Deputy Attorney General of the United States know about criminal procedures? The Los Angeles Times says these subpoenas are a “little-known power.”

The paper also says:

The subpoenas are secret and not reviewed by judges or grand juries, as are most criminal subpoenas.

Really? They are? That’s news to me!

My office issues subpoenas every day — hundreds of them. People appear in court pursuant to them. Police deliver records pursuant to them. We subpoena cellular phone records, hospital records, and all sorts of other records with them, all the time — and judges almost never look at them. The subpoenaed parties simply comply.

Prosecutors and defense attorneys reading this blog, feel free to chime in. Tell me if I’m wrong.

I’d be fascinated to know the source of these reporters’ contention that “most criminal subpoenas” are “reviewed by judges or grand juries.” I have a hunch that the source is “the reporter’s ass.”

Finally, as I told you before, the paper does not give a full picture of the successes of the program. The New York Times and Washington Post managed to find officials who would disclose specific successes of the program, including confirming the identity of a major Iraqi terror facilitator, and the capture of the mastermind of the 2002 Bali bombing, which killed 202 people. Yet the Los Angeles Times says:

Current and former U.S. officials familiar with the SWIFT program described it as one of the most valuable weapons in the financial war on terrorism, but declined to provide even anecdotal evidence of its successes.

(False) implication: the program really isn’t all that important.

All of these distortions mesh to make the program seem less important and more threatening than it really is.

I just want to make sure you recognize what the paper is doing, and why.

Yagman Indicted

Filed under: Crime,General,Scum — Patterico @ 1:55 pm

I’m not a big fan of Stephen Yagman. (A simple search of my site for the term “Yagman” will give you posts that explain why.) So you’ll excuse my jubilation as I report the news that Yagman has been indicted for tax evasion — as well as bankruptcy fraud and 17 counts of money laundering.

I wonder which judge is going to handle his case. Will it be the one he has called a fucking fat ugly asshole and fascist judge with a weird-shaped head that looked like a Martian? The one he said suffered from mental disorders and compared to Torquemada? Or perhaps the one he called “anti-Semitic” and “drunk on the bench”? (That’s the one I worked for.)

I don’t know yet. But I do know this: this is gonna be fun to follow.

UPDATE: Here is a link to the U.S. Attorney’s press release.

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.


More on the (Former) Anti-Terror Program

Filed under: Dog Trainer,Terrorism,War — Patterico @ 10:24 am

The Washington Post has a Page A01 story on the Swift (former?) anti-terror program today, and commenter Halcyon says the Wall Street Journal is also running with the story.

The WaPo story makes it even clearer why the publication of these stories is such an outrage. (I can’t read the WSJ story, but it looks like the WaPo is playing catch-up, based on what its editors read online last night. It’s obvious to me that WaPo editors read last night’s online reports, had a reporter call up someone for a quick interview, and threw together a story.)

The WaPo article is primarily based on an interview with Stuart Levey, undersecretary of the Treasury for terrorism and financial intelligence, who says that the program is on “rock-solid legal ground,” and that he believes it has been “has been universally embraced and praised.” He says “he could confirm that the information has been used to ‘confirm the identity of a major Iraqi terrorist facilitator.'”

He also said that strict controls are in place, adding: “We can only search the data we receive in furtherance of a terrorism lead. In fact, the analysts who have access to the data can’t even access the database unless they type in the search they want to do and articulate why it’s connected to terrorism.”

Thank God the New York Times and Los Angeles Times are saving us from this evil program!

Anyway, it’s wrong for the government to have private information about our finances! The government should be strictly limited to knowing the following:

Your address, your place of employment, your salary, the names and social security numbers of your children or other dependents (plus their birth dates); the amounts you may have given to charity; the amount you spend on a mortgage and with what bank; the amount of interest you received on any savings account; the amount you gained from any stocks or investments you might have sold during the past year; any money that you gained from rentals, alimony, unemployment compensation, or IRA distributions; any money that you spent on student loan interest, health savings accounts, child care, care for the elderly, adoption, 401Ks, or moving; etc., etc., etc.

(The list is from Stuart Buck.) The idea that the government could also learn details about your international wire transactions — well, that’s just too much!

This could affect you, too! I mean, who among us hasn’t wired money internationally to people suspected of being terrorists?!

It’s unprecedented! It raises concerns!! So what if mass-murdering terrorists were caught, using a legal program that implemented strict controls? So what if Congresscritters were briefed and liked the program?

None of that matters. A few anonymous government employees and a few American journalists were concerned!

And that’s the end of that.

L.A. Times: You Mean the Anti-Terror Program We Exposed Was Successful? Why, That’s News to Us!

Filed under: Dog Trainer,General,Scum,Terrorism — Patterico @ 6:02 am

I’d like to point out a very interesting contrast between the L.A. Times and New York Times stories revealing classified details of an anti-terror operation.

The New York Times article lists several examples of successes by the program:

Among the [program’s] successes was the capture of a Qaeda operative, Riduan Isamuddin, better known as Hambali, believed to be the mastermind of the 2002 bombing of a Bali resort, several officials said. . . .

In the United States, the program has provided financial data in investigations into possible domestic terrorist cells as well as inquiries of Islamic charities with suspected of having links to extremists, the officials said.

The data also helped identify a Brooklyn man who was convicted on terrorism-related charges last year, the officials said.

Note that, in the New York Times article, these many successes were touted by “several officials.”

By contrast, the authors of the L.A. Times article apparently couldn’t seem to find a single official willing to give evidence of the program’s successes:

Current and former U.S. officials familiar with the SWIFT program described it as one of the most valuable weapons in the financial war on terrorism, but declined to provide even anecdotal evidence of its successes.

Indeed, they found someone to suggest that there have been no such successes:

Lee Hamilton, a former congressman and co-chairman of the commission who said he has been briefed on the SWIFT program, said U.S. intelligence agencies have made significant progress in recent years, but are still falling short. “I still cannot point to specific successes of our efforts here on terrorist financing,” he said.

How is it that the New York Times was able to find “several officials” who gave numerous examples of the program’s successes — but the L.A. Times couldn’t find even one?

Are the New York Times reporters just that much better? Or are the L.A. Times reporters just not trying?

If Today’s Journalists Had Been Around in World War II

Filed under: Dog Trainer,Scum,Terrorism — Patterico @ 12:10 am

It is May 30, 1944, and Bill Keller and Dean Baquet have just issued a joint statement:

We have listened closely to President Roosevelt’s arguments for withholding publication of the full details of the Allies’ plans for next week’s invasion of Europe in Northern France. We weighed these arguments carefully, and gave them the most serious and respectful consideration.

However, we have determined that it was in the public interest to publish these plans.

We believe that the government’s use of deception in attempting to mislead our enemy concerning the exact location of our invasion raises serious questions about governmental honesty — questions that merit a public airing and debate.

Additionally, the plans we have published anticipate severe casualties on the part of Allied forces. Publishing the details of such a plan is part of the continuing national debate over the aggressive measures employed by the government in attempting to win the so-called “war on Nazism and fascism.”

I have no trouble imagining this. No trouble at all.

Thanks to Sean M. for the inspiration.

UPDATE: I see that Meg Q. at Goldstein’s did essentially the same riff. Well, I guess it’s just that obvious, isn’t it? Are you proud, Dean and Bill, that many people are having this exact reaction?

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