Patterico's Pontifications

6/23/2006

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.

40 Responses to “Shorter Argument for Prosecuting Reporters from the NYT and LAT”

  1. Why no commentary on Glenn R. Simpson of the Wall Street Journal, for his front page article on the same subject, published at the same time? Why has Patterico been letting the WSJ off the hook? Oh wait, it’s not a newspaper Patterico considers to be liberal.

    What a surprise to find him playing politics with this issue.

    [Ah, good ol’ m.croche. The guy who made up a story about me, has refused my demand that he retract it, and thinks I am going to let him forget it — though I have promised him that I will not.

    I do believe I mentioned here that the WSJ ran with the story, but I don’t know whether they were a prime mover or not because I don’t subscribe. You didn’t mention that, croche – no surprise, because you are a liar. Toodles. — P]

    m.croche (85f703)

  2. Oh, please. If you read Patterico’s many posts, he’s in favor of prosecuting those who release or print classified information.

    Where do you see him restricting those prosecutions to liberals?

    Why are you seeking to minimize the seriousness of the threat to our national security by engaging in grade-school so’s-your-mother hair pulling?

    The Feds should prosecute any and all who engage in this dangerous conduct, running to ground the mercenary careerists who put the well being of the State Dept. and the CIA above that of the nation — as well as the journalists and editors that care not at all for the well being of their (nominal) fellow Americans.

    Mike Lief (e9d57e)

  3. No need to respond to lying croche, Mike. I’ll handle it.

    Patterico (50c3cd)

  4. Actually, the news portion of the Wall Street Journal is considered liberal. The editorial pages are conservative. From UCLA’s newsroom:

    “While the editorial page of The Wall Street Journal is conservative, the newspaper’s news pages are liberal, even more liberal than The New York Times.”

    http://www.newsroom.ucla.edu/page.asp?RelNum=6664

    Vermont Neighbor (a9ae2c)

  5. Quite so.

    If the WSJ was part of a triad of papers outing this program, and not just following the pack like the WaPo so clearly was, I have no problem calling for them to reveal their sources, and possibly be prosecuted as well.

    Patterico (50c3cd)

  6. Just because you didn’t read about successes from the NSA program, Patterico, doesn’t mean that there weren’t any. I’ve no reason to assume that outing was any more benign than the Swift program.

    After all, they may have been covered in the Wall Street Journal…

    See-Dubya (afdbd2)

  7. That’s certainly possible, but I remember thinking at the time that they should put a couple of examples on the table. It has a huge effect on the way someone like me views these leaks. And I can’t be the only one who feels this way.

    Patterico (50c3cd)

  8. The success rate of the program surely doesn’t significantly change the parameters that much for outing *classified* data, does it? I can’t remember how long the NSA stuff had been going on, but I don’t think it was as long as this. Time and experience might have yielded more results. But of course the only people who were hopeful about that were the people running it … and those of us who count on the people running it … and those hopes certainly aren’t good enough for the MSM.

    Anwyn (01a5cc)

  9. Folks, please cut to the chase. There are laws forbidding the dissemination of classified information. Why should government-employed leakers and people in the news business be immune to prosecution if they violate these laws?

    SB (9980a4)

  10. [Ah, good ol’ m.croche. The guy who made up a story about me, has refused my demand that he retract it, and thinks I am going to let him forget it — though I have promised him that I will not.

    I do believe I mentioned here that the WSJ ran with the story, but I don’t know whether they were a prime mover or not because I don’t subscribe. You didn’t mention that, croche – no surprise, because you are a liar. Toodles. — P]

    Comment by m.croche — 6/23/2006 @ 9:50 pm

    Well, I certainly don’t read all of Patterico’s posts, nor all of his comments to posts so I missed this. Did a quick double-check and, so far as that goes, I did appear to have made quite the mistake. My sincere apologies to Patterico (and Mrs. Patterico) for the big blunder on my part.

    That said, it’s really rather remarkable that Patterico, who was so enraged by the scandal to now find political violence tempting, seems to have so little curiosity about the Wall Street Journal’s role in the matter. A very easy matter to check up on, too: Google news provides a quick roster of what stories were posted when and where. Patterico can even read the incipit of the WSJ article. Heck, he can even subscribe to the journal online two weeks for free.

    I’m sure he’ll be adding the WALL STREET JOURNAL to all those denunciatory headlines. And apologizing to his readers for giving them the impression that only papers he considers to be “liberal” reported on the matter.

    How do we know that Patterico was looking specifically for the “get-the-liberal” angle? Because of this: “I’ll say only this: it’s becoming increasingly clear to me that the people at the New York Times are not just biased media folks whose antics can be laughed off. They are actually dangerous.”

    Amazing that Patterico would be so cavalier about the “dangerous” Wall Street Journal.

    m.croche (85f703)

  11. i think there is a law which forbids the dissemination of classified information!

    Government should take care how to appoint the employees and better be careful at that point in time!!

    Charles Davis (4ae97e)

  12. Glenn R. Simpson and an excerpt from yesterday’s WSJ article:

    While U.S. officials had never discussed the tracking program publicly until yesterday, they have repeatedly discussed in broad terms their efforts to engage in surveillance of cross-border financial activity around the world and have widely publicized the fruits of such surveillance in efforts to blacklist corrupt financial institutions.

    In a statement, Swift said, “In the aftermath of the September 11th attacks, Swift responded to compulsory subpoenas for limited sets of data. Our fundamental principle has been to preserve the confidentiality, oversight and control of the limited sets of data produced under the subpoenas.”

    The government has a similar program through which it accesses data from Western Union, The Wall Street Journal reported last year.

    […]

    Swift’s headquarters is a tightly guarded campus with long, well-manicured lawns in La Hulpe, a suburb of Brussels, the Belgium capital and headquarters of the European Union. The company is run by an American, Leonard Schrank, whose office is adorned with photos from a management seminar Swift held at [NASA].

    […]

    U.S. officials agreed to discuss the program after concluding that knowledge of its existence was emerging and public disclosure was inevitable. Aspects of it have recently been declassified. Mr. Snow called the disclosure “regrettable.” Mr. Levey said he fears that sophisticated terrorists will now stop using the system in ways we have access to, or will take extensive precautions to hide their identities, and that is really a loss.”
    (WSJ-6/23)
    ————–

    GLENN R. SIMPSON

    Glenn Simpson is a reporter for The Wall Street Journal covering money laundering and other financial crime, including terrorist financing, tax evasion and corporate misconduct. For nine years, he was based in the Journal’s Washington, D.C., bureau. In January 2005, he moved to the Journal’s European headquarters in Brussels, Belgium.

    His past coverage for the Journal includes the 9/11 attacks and their aftermath, technology and privacy, the Justice Department, Congress, banking agencies and the White House, the Federal Trade Commission, and major scandals including Whitewater, foreign campaign contributions and Monica Lewinsky. His October 1996 articles disclosing illegal contributions from Indonesia and China to the Bill Clinton presidential campaign (with Jill Abramson) sparked a year-long congressional investigation and various federal prosecutions and were included in a nomination package by the Journal for a Pulitzer Prize.

    (Anderson School of Management)
    http://www.anderson.ucla.edu/x14990.xml

    Vermont Neighbor (a9ae2c)

  13. That said, it’s really rather remarkable that Patterico, who was so enraged by the scandal to now find political violence tempting, seems to have so little curiosity about the Wall Street Journal’s role in the matter. A very easy matter to check up on, too: Google news provides a quick roster of what stories were posted when and where. Patterico can even read the incipit of the WSJ article. Heck, he can even subscribe to the journal online two weeks for free.

    That’s total crap. I was indeed very curious about it when I was first told about it. I posted an update to the post. But I said I couldn’t read the story because it is behind a pay wall.

    If the WSJ was part of the active investigation, as I have already said, then they too are dangerous to our safety. I’ll happily denounce them from the rooftops.

    It won’t even cause me any cognitive dissonance, as I don’t consider the news pages of the WSJ to be conservative. (Although I’d denounce the Washington Times if they pulled a stunt like this. But you know what? I don’t think they would. I think they care more about our safety than the NYT and LAT.)

    But, to be honest with you, I’m tired of you lying about me, croche. I’m tired of the stupid sarcasm backed by endless distortions of what I say. They are always easy to refute, but it sucks up my time. You are a waste of time, croche. That’s all you are to me, is a waste of time.

    Patterico (50c3cd)

  14. Clippings are legal and I can send this one. Do you have a P.O. Box?

    Vermont Neighbor (a9ae2c)

  15. Why are you giving over the security of your country to journalists?

    Chris from Victoria, BC (9824e6)

  16. Clippings are legal and I can send this one. Do you have a P.O. Box?

    E-mail me. patterico AT patterico DOT com.

    Patterico (50c3cd)

  17. Just so you know, most spiders can easily pick up that email address… you should put in a PHP (or CGI/Perl) contact web form. There are precongured scripts that are dead easy to install.

    One of the best and the one I use is SCForm (Simple Contact Form).

    It protects you from spam and instead of using the whole patterico AT thing, which new spam spiders are trained to find anyway, you can just provide a clickable hyperlink to your contact form both on your sidebar and in your comments.

    Just my two cents worth. I hate spam with a passion.

    Chris from Victoria, BC (9824e6)

  18. Or if that’s too much work, visit Jottings.com to obscure your email address using JavaScript and a one-way randomly generated encryption key with their easy-to-use automated tool.

    This will generate a clickable “mailto:” link and would be perfect for the sidebar of your blog since your commentators need JavaScript already to use the “Live Preview of Comment” feature. This encrypted and JavaScript protected “mailto:” link also comes with <noscript> tags that you can use to tell anyone who has JavaScript disabled to turn on JavaScript in order to see your email address!

    Just use your email address itself as the “link text” in the Jottings.com tool.

    Chris from Victoria, BC (9824e6)

  19. […] Professor Bainbridge nails it. If these criminals inside and outside the government are not prosecuted, we might as well just come out and admit we are a government by the New York Times, of the New York Times and for the New York Times. Patterico has much much much much more. […]

    damnum absque injuria » Bill Keller Is Not My President (38c04c)

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

    The only problem is that it might be a defense to claim the info came from SWIFT, and not classified sources.

    Of course, you’ve done a statutory analysis. But the statute also has to pass first amendment scrutiny.

    actus (6234ee)

  21. Yea, and in my earlier post, linked in the article, I pointed to analyses from several experts indicating that the First Amendment may not offer a defense.

    It’s a tough question, for sure. It balances two very important values in our society. But Congress has made the call as to where the balance should be struck, and I’m not sure that the First Amendment provides an override *if* (as *appears* to be the case here) the government is not engaged in wrongdoing, but rather in a legal program with strict controls.

    Patterico (50c3cd)

  22. But Congress has made the call as to where the balance should be struck

    That really shouldn’t factor into the 1st amendment analysis.

    I’m not sure that the First Amendment provides an override *if* (as *appears* to be the case here) the government is not engaged in wrongdoing, but rather in a legal program with strict controls.

    But even that sort of a program will have some public interest angle. And when you’re talking about criminal penalties on people who have not confidential relationship to the information, you’re going to have a very high first amendment bar.

    actus (6234ee)

  23. A constitutional scholar would disagree with that.

    Really? i mean, we’re talking about rights here. Rights that starty by saying ‘congress shall make no law’ The question is determining whether this law made by congress violates the first amendment. Thats not really up for congress to decide.

    actus (6234ee)

  24. That really shouldn’t factor into the 1st amendment analysis.

    Didn’t say it should.

    But even that sort of a program will have some public interest angle. And when you’re talking about criminal penalties on people who have not confidential relationship to the information, you’re going to have a very high first amendment bar.

    I agree. It’s not an easy question. But read my links. There are experts sympathetic to First Amendment values who think there might be a valid prosecution — especially if the articles aren’t exposing “wrongdoing” by the government, but merely publishing secrets because some people are “concerned.”

    Patterico (50c3cd)

  25. But read my links.

    I did. They were mostly statutory discussions with asides to first amendment values, not an analysis.

    actus (6234ee)

  26. Some one, or more, individuals in the government have taken it upon themselves to conduct foreign policy.

    They have out-Fondaed Hanoi Jane.

    The next FBI terrorist raids should be on the offices of the NY and LA Times.

    I see no difference between this story and if the NYTimes had published specific troop movements and battle plans of our military in Iraq and Afghanistan.

    Darleen (81f712)

  27. Did you see this?

    The writer posits that the newspapers involved won’t, and probably shouldn’t, be prosecuted. Not because of any Constitutional question, but because they’re aching for it.

    Subscriptions are dropping, ad revenue is going down, and stock prices are in the tank. The NYT and LAT both need something to give them a big boost. Their assumption, capsuled as “if it bleeds it leads”, is that to get that boost they need something sensational, something so titillating that people will buy the paper to read about it. The existing story is an attempt at that, but more important it’s a try for the gold: If they were accused of violating the espionage laws, the ensuing howls and shrieks from the acti and croches would certainly give them a lot of publicity, and being the ones to report the events would mean that they would be able to control the spin. So they’re wanting, in fact desperately hoping, to be prosecuted for it.

    It strikes me as an entirely plausible hypothesis, and if it’s true (or even if it isn’t) the best route is Patterico’s and AL’s: cancel your subscription, thus reducing the “base” from which ad prices are calculated. Don’t buy the paper at the newsstand, which returns more money on a per-copy basis than the subscriptions do. If you want to be really vicious, go through your last copy, note the prominent advertisers, and send them letters saying you will avoid their products until and unless they cancel their ad campaigns in the papers in question.

    I don’t want to see Sulzberger in jail. I want to see him printing the Nassau County Shopper and sitting in cheap bars, drinking Old Milwaukee and bragging about the days when he was important. Same for Keller.

    The ones who should be prosecuted are the leakers. I hope the Administration is actively and successfully hunting them down. But I wouldn’t give the Timeses the satisfaction.

    Regards,
    Ric

    Ric Locke (2a328c)

  28. I wonder about the history of secrecy in wartime in general. In WWII the government had blackouts on negative news, which I’m sure helped with morale at home.

    When did the government lose the right to secrecy on national security issues; and, if they have indeed irretrievably lost it, can we ever win a war again?

    Patricia (2cc180)

  29. Some one, or more, individuals in the government have taken it upon themselves to conduct foreign policy.

    Why is everyone assuming this info came from the government? This was a Belgian banking clearance center we were getting the data from. Why couldn’t the information have come from there? From the point of view of the journalists, thats probably better, because thats’ not classified.

    actus (6234ee)

  30. Anyone who has read the WSJ for any length of time knows it has a liberal bent to its news coverage. Not to the degree of the Times (both NY and LA), but definitely left of center. It is only on the editorial page that it is more conservative. So if it’s writing about Swift, it’s likely got the bash-Bush angle involved somewhere along the way, just more subtly disguised. I wouldn’t know, though, the WSJ was the last newspaper I stopped subscribing to … somewhere around mid-2004 when I realized my subscription was simply supporting an anti-America agenda. I still glance at opinionjournal.com occasionally. The stuff that’s available for free, that is.

    scott (d64e37)

  31. Why is everyone assuming this info came from the government? This was a Belgian banking clearance center we were getting the data from. Why couldn’t the information have come from there? From the point of view of the journalists, thats probably better, because thats’ not classified.

    That’s why we need a criminal investigation: to find out.

    My educated guess is that Swift was terrified the program would become public, whereas Mary McCarthy-style partisans in the government might well have a different agenda. But of course I don’t know. I’m counting on a tough prosecutor to find out, Fitzgerald-style.

    Patterico (50c3cd)

  32. Why is everyone assuming this info came from the government? This was a Belgian banking clearance center we were getting the data from. Why couldn’t the information have come from there?

    Because the NYT specifically said it came from 20 gov’t sources? I believe that was the number; the article seems to be behind the NYT registration wall now.

    What kills me the most is the quote from at least one, maybe more, “gov’t sources,” at least one named, who considered the program “valuable.” I’d like to ask him why, in that case, he saw fit to leak it.

    Anwyn (01a5cc)

  33. […] I am not interested in this story at all, but it is apparent that many on the site are. My disinterest stems from the fact that I know how the system USED to work, when it worked. A good system was politicized in the past to cover up mis-deeds and for political gain and is no longer viable or fixable. Please do not let my prejudices dissuade you from a vigorous debate which needs to be held. […]

    Rathergate.com » Security Leaks (879659)

  34. I would not go after the reporters, because reporters do not publish stories. Editors do that, and editors in turn are answerable to the publisher. Go after Keller and Sulzberger. And, of course, the leakers at CIA, etc.

    Byron (3bf382)

  35. Really? Life, liberty and the pursuit of happiness doesn’t ring a bell?

    Thats a piece of declaration of independence. But I don’t quite see how it would fit into a first amendment analysis.

    What kills me the most is the quote from at least one, maybe more, “gov’t sources,” at least one named, who considered the program “valuable.” I’d like to ask him why, in that case, he saw fit to leak it.

    Maybe because he already knew it was leaked. I know some reporters. The way they work is they get info from one source and ask others to comment on it. The way to get your sources to talk about classfied info is to get them to comment on your non-classified info you got from some belgians.

    actus (6234ee)

  36. Really? You don’t see how one leads to another?

    Sketch it out for me. Like how would a judge rule.

    actus (6234ee)

  37. Do Security Risks Ever Enter Publishing Calculus?…

    Do the media elites at the major newspapers and networks ever think for a moment that their stories might cause irreperable harm to national security? Do they ever consider that these scoops based on leaks of classified information could put their ow…..

    A Blog For All (59ce3a)

  38. I would prosecute the leaker. The reason leaks keep happening is because there is no penalty for it. I recently read about the Nixon-Kissinger diplomacy in a certain international incident and the confusion resulting from one message being delivered in a formal NSC meeting and others in private. But all the principals were loath to speak in general meetings because of leaks. Later they found out an aide swept up all the loose papers after everyone left a meeting and leaked them to the paper of his choice.

    So find him or her and prosecute.

    Patricia (2cc180)

  39. actus:

    Sketch it out for me.

    Excuse me? Are you trying to order or demand something here?

    AAC (bace01)


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