Patterico's Pontifications

6/27/2006

Why We Shouldn’t Prosecute the Reporters and Editors of the L.A. Times and New York Times — Just Yet

Filed under: Civil Liberties,Crime,Dog Trainer,Scum,Terrorism — Patterico @ 6:02 am



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.)

So it may surprise some that I have made up my mind, and have come to the conclusion that we should not prosecute the reporters and editors of the New York Times and Los Angeles Times — at least not now.

My full argument is in the extended entry. For those lacking the patience to wend their way through my whole argument, I’ll summarize it this way:

The decision to prosecute newspaper personnel for publishing classified information is a vexing one that pits the core American value of free speech against a legitimate need for secrecy in some areas. I think that, in the particular circumstances of this case, a good argument can be made that a prosecution would be consistent with the relevant statutes and the Constitution. However, it is by no means certain that we would obtain a conviction — and prosecutions would be very bad public relations.

Accordingly, we should concentrate on finding the leakers, first and foremost. If that means dragging some journalists before a grand jury and forcing them to out their sources or go to jail, then so be it.

The full argument is in the extended entry.

[Extended entry]

One reason this is a tough issue is because it pits two very important principles against one another. On one hand, there is our right to know the workings of government, especially when it is engaged in potential wrongdoing. On the other, there is the government’s duty to protect us against serious security threats — and the secrecy that such efforts often require.

Hand in hand with these questions goes the vexing issue of who gets to decide.

Each side can easily present examples of extremes. On the pro-publication side, Jon Henke asks:

Can anybody argue that—to take an extreme example—were the John Doe administration to start a classified program of detaining and killing US citizens, it would be wrong for the media to report on it?

Who gets to decide whether publication of the details of such a program could legally be punished? Certainly we would all agree that the President should not have the exclusive say.

But to take an extreme example on the other side, I’m sure we can all agree that newspapers should not be allowed to publish the existence of an imminent plan to disrupt a terror cell that is on the verge of executing a terror attack with WMD.

Who gets to decide whether publication of the details of such an operation could legally be punished? Certainly most of us would agree that newspapers should not have the exclusive say.

The problem is that many cases fall into a gray area, somewhere in the middle. In a given case, conservatives might think that the classified information is critical, and the potential for wrongdoing is minimal. Liberals and hard libertarians can look at the same information and argue that the information is obvious and should not even be classified — but that the dangers to privacy are significant.

Who gets to decide?

There are really two questions there. First, who gets to decide whether the information will be published at all? Second, who gets to decide whether the publication can be criminally punished?

Believe it or not, they are legally separate issues. You might be able to punish publication after the fact, but be powerless to prevent it before the fact.

As to the first issue — can the information be published to begin with? — the law is clear: in almost every case, the newspaper gets to decide. Prior restraint doctrine in this country is so strict that, in virtually any scenario with any shades of gray, courts will prevent the government from stopping the printing presses at gunpoint.

As to the second issue — can the publication be criminally prosecuted? — the answer is more subtle and wide-ranging.

The analysis begins with the fact that we are a nation of laws, not men. Individual decisionmakers, faced with the “who decides” question raised above, are constrained by the law.

Accordingly, the analysis begins with Congress, which gets to set the applicable laws. Any such laws must of course pass muster under the First Amendment. If they do, then there is another layer: prosecutors must exercise their discretion.

If these were the only hurdles to overcome, the decision would still be a tough one, but the arguments for prosecution would be very strong.

As I have read about and discussed this issue over the past few days, I have become convinced that there is indeed a law on the books, duly passed by Congress, which criminalizes the publication of articles recently printed in the New York Times and Los Angeles Times.

It is not a treason statute, or even the Espionage Act, but rather a specific statute called the Comint statute. It governs the unauthorized publication, to the detriment of the United States, of classified information concerning the communication intelligence activities of the United States. I discussed that statute, and why I think it has been violated, in this post.

As to the First Amendment issue, I provided links in this lengthy post stating that the consensus of experts was that the statute probably would pass constitutional muster — unless, perhaps, the articles could fairly be said to be revealing of governmental wrongdoing.

I don’t think they are.

And I think that a prosecutor could easily exercise his discretion to prosecute. The potential damage of these articles is great. There is a significant governmental interest at stake: the need for secrecy on important confidential anti-terror programs.

But there’s still one step left before we get to consign the journalists to prison. And it’s a big one.

If prosecutors decide to prosecute, it’s ultimately up to a jury of 12 citizens, who must find the defendant(s) guilty beyond a reasonable doubt.

And there’s the rub. Because I strongly doubt that we could find a jury of 12 people to convict.

These issues are so politically polarized that it seems you can’t get people to analyze them with any objectivity whatsoever. Ardent blog readers and commenters know, perhaps more than most, how unreasonable some people can be when you challenge their political beliefs. Reason goes out the window. They’ll deny that the sky is blue if helps them make a political point.

There are some people who are so disenchanted with Bush and his administration that they’d support the publication of almost any article that attacked Bush — regardless of the damage the article might do to the country.

Moreover, it is not only hatred of Bush that drives suspicions of government surveillance. Some libertarian Republicans have issues with the privacy aspects of the Swift bank tracking program. I think they are dead wrong, but my opinion doesn’t change theirs.

Unless a prosecutor could exclude all such people from the jury — and he probably could not — then it seems to me that no prosecutor would ever get a conviction of a reporter or editor for violating the statute discussed above. The anti-Bushies on the jury would see it as a partisan prosecution. And the libertarians would not be able to get over the privacy issues, and the fact that newspaper people are being prosecuted for publishing something.

I just have a hard time seeing how you could get 12 people to agree on anything with such political overtones.

(Similar reasoning may have underlay the decision not to prosecute President Clinton criminally for his clear perjury, by the way.)

This is, in and of itself, not a valid reason to forego a prosecution. If a prosecutor believes that a reasonable jury would convict, the prosecutor is not supposed to make decisions based upon what an unreasonable jury would do.

But there is an even more significant issue: public relations.

We’re looking not only at what a prosecutor would do, but how the newspapers would play such a prosecution in the court of public opinion. They could portray themselves as First Amendment martyrs, and much of the public would buy it.

These bastards in the media are on their heels today. Look at how Bill Keller is on the defensive. The same thing has happened to Doyle McManus of the L.A. Times, and is likely to happen to Dean Baquet as well.

But if the Bush Administration indicts Bill Keller, look out. You think Islamic terrorists play the martyr card? You ain’t seen nothin’.

As my friend Allah has said (and you’ll rarely find anyone who can muster such eloquence and power of expression in a blog comment!):

If they start prosecuting journalists, it’ll lend surface credibility to all the whining about creeping fascism. Some independents will respond to that, and we’re in a tough enough position electorally right now that that’s not a risk that should be taken lightly. Would you prefer having an obstructionist Democratic Congress passing presidential censure resolutions to mark the occasion every time one of these articles is published?

Again, this isn’t necessarily a reason to forego prosecution entirely. Lots of defendants play the martyr card — but breaking the law is breaking the law. And I have pointed out that there is a slippery slope issue involved in not prosecuting. We run the risk of allowing newspapers becoming the final arbiters of what classified information remains classified — even though nobody elected them to make these decisions, and they necessarily make them based on overly limited information.

So I wouldn’t give up the notion of prosecution entirely.

But we have to understand the political risks involved.

So with all of the above in mind, I think we have to recognize that we have a higher priority here: to find and prosecute the people who leaked this information.

These people are presumably inside government, but possibly not. Either way, we have to learn who it was, and whether they broke any laws. (If they are inside government, they almost assuredly did.)

We should prioritize that hunt. As happened in the Plame investigation, journalists should be hauled before a grand jury and questioned regarding their sources. If they refuse to answer, they should be held in contempt and jailed.

To the extent that a credible threat of prosecution can ethically be used in such an investigation, I would not oppose that.

But there’s time to save the media prosecutions for another day.

Let’s keep our eye on the ball. Find and prosecute the leakers.

UPDATE: I’m not saying Andrew McCarthy has been reading my blog, but he’s saying the same thing. His emphasis — a worry about losing on appeal — is, I think, putting the cart before the horse. I worry more about winning the jury trial. But his bottom line is the same: catching the leakers is the top priority.

70 Responses to “Why We Shouldn’t Prosecute the Reporters and Editors of the L.A. Times and New York Times — Just Yet”

  1. “Find and prosecute the leakers.”

    Yes. And, stop buying the papers in which the leaks are reported.

    ewb (b8e95f)

  2. Patterico –

    I respect your views here, but I disagree in this case. For me, a critical factor was that key members (presumably both parties, committee heads and ranking members) of Congress had been briefed on the plan – including its legality and effectiveness – and had not objected. The significance of that point must not be overlooked. POTUS had been elected and the key figures of the Executive Branch had been confirmed. The Congress had been informed and the Justice Department had convinced the Congress that the Judicial Branch had not problem. The US has a government OF the People and FOR the People.

    Thus, if there is Fascism here, it would seem to be by LAT/NYT editors.

    However, with that said, I would offer the same point as ewb. The only way to “un-elect” the editors of the LAT and NYT is not to buy their papers – vote with our dollars. We may not have the impact that GM did with the LAT, but it is one thing that we certainly can do and, it seems, what many of “us” seem to have been doing lately. For example, there is always the NY Post or the Washington Times. “Dialogues” with their advertisers might also have some impact.

    jim (6482d8)

  3. Thus, if there is Fascism here, it would seem to be by LAT/NYT editors.

    The thing that gets me every time I read one of the editors’ rationalizations is the picture of our government officials essentially down on their knees to the newspapers, laying out everything they’ve got on the program and begging them not to hang it out to dry. It’s a disgraceful outrage. And let me just beat jeerers to the punch: I would say that even if it were a Clinton or Carter or [insert president I don’t like here] administration who had to do it under the same circumstances.

    Of course there are times when a paper should tell the people something’s fishy about a particular aspect of government procedure. This wasn’t one of them.

    All of that being said, I agree that the editors shouldn’t be prosecuted at this time; I’ve never had a legal argument against it, but just a gut feeling that it would do more harm than good. This time. Let them keep going and they might end up somewhere very different, in my opinion and in the opinions of many others.

    Anwyn (01a5cc)

  4. Do you think that the government further weakened the case by turning around and filling in some blanks for LAT once it was unable to stop the publication? (Cf. Mr. McManus on Hugh Hewitt)

    nk (947b03)

  5. It seems to me that NR is right. Why not pull the NY Times press credentials and refuse to talk to them (the Administration and as many in Congress as choose to follow)? Take them off all distribution lists and keep them off Air Force One. Let them live on their leaks for a few months. Let’s see who boycotts the “gaggle” in sympathy.

    Mahon (15e701)

  6. I would agree with not prosecuting the NY Times if they agreed to tell prosecutors what they know about the leakers. That’s not going to happen, though; instead they’ll assert their usual criminal-conspirator privilege and play martyr for The Right to Know. Then, when they end up jailed for contempt, the morons at Reason and across the left side of the blogosphere will caterwaul about the administration’s persecution of these First Amendment heroes.

    Xrlq (f52b4f)

  7. Xrlq –

    The fascist LAT/NYT editors in jail and the far lefties caterwauling – sounds win-win to me!

    jim (a9ab88)

  8. This truly is a conundrum. Viscerally, I would like to see The NY Times and their ilk prosecuted, however intellectually I know that it would open up a whole new can of worms complete with the (re)defining of terms that might render future more important prosecutions moot.

    IF GW Bush were not such a nice guy and actually understood the opposition, he would have engaged in a scorched earth policy at the CIA and the State Department to rid those agencies of career bureaucrats whose primary professional goal is to avoid the heavy lifting and difficult work while sailing unabated toward a cushy government retirement. The existing cabal that seeks to undermine his Presidency must be laughing their behinds off as they attempt (and succeed) to make fools of him and his policies.

    Root out and prosecute the leakers FIRST and foremost for they are the true enemies of America. When testimony reveals the nefarious nature of their dealings with the press, ALL Americans will then be able to see how the ‘underground government’ is undermining America and its security goals.

    ~(Ä)~

    .

    Rocketman (ef8bde)

  9. xlrq–

    Agreed. We need to charge Bill Keller, etc, and let them look at 10 years in prison. More if you roll in the 2 telephone exposes. Then they might start outing their sources. It’s one thing to face a few months in jail, it’s quite another to consider 10 years in a maximum security prison.

    Is there anyone who things that this is going to stop if nothing is done?

    Kevin Murphy (0b2493)

  10. Is there anyone who things that this is going to stop if nothing is done?

    Not me, for one. I don’t believe it will stop, but unfortunately I think it will take something a little bigger than this to justify the cascade of repercussions of prosecuting newspaper editors and reporters. However, it is just possible that they’ll get burned by this at least enough to *try* to hold their bolt next time. It could happen. If it doesn’t, time enough still to prosecute. That’s a step that should be left until a later resort than now. I’m just afraid of what it will actually take to make it happen–possibly in cost of direct loss of life, not the indirect loss this one has caused.

    The leakers? I hope *they’re* jailed for at least ten years.

    Anwyn (01a5cc)

  11. Remember back in (I think) the 80s when CNN or somebody outted a bunch of spies in South America who were killed immediately? We thought then that it would stop the press from publishing govt secrets in the name of “public interest.” Looks like it won’t stop until their buildings are the ones targetted by the terrorists. I’m not for prosecuting them, though. I say hang the leakers, but let the LAT and NYT twist in the wind. Pull their press passes and let em live on the leaks.

    sharon (03e82c)

  12. “Guess Who Said This…
    …On September 24, 2001?
    ‘The Bush administration is preparing new laws to help track terrorists through their money-laundering activity and is readying an executive order freezing the assets of known terrorists. Much more is needed, including stricter regulations, the recruitment of specialized investigators and greater cooperation with foreign banking authorities. There must also must be closer coordination among America’s law enforcement, national security and financial regulatory agencies….If America is going to wage a new kind of war against terrorism, it must act on all fronts, including the financial one.’
    That’s right, the New York Times.”

    From Polipundit

    nk (06f5d0)

  13. MerlinOS2–It isn’t that I don’t think there is sufficient justification to prosecute. I do, supported by the arguments of lawyers that I’ve read (I’m not one, clearly). But unfortunately, as Patterico also states, there is a political cost to be considered, and I’m past the stage in my life where I raged for truth and justice first with no consideration to the politics, mostly because it just can’t be done that way with impunity. Even Lincoln had to have “a pumpkin in each end of his bag” before he could ride. The good of prosecuting has to outweigh the bad, and smart people actually take that into account. Unlike some people and their decision to publish.

    Anwyn (01a5cc)

  14. Patterico, the statute you cited requires violations be “willful”. So if the reporters believed what they did was legal, because the stories were cleared by the paper’s attorneys and because prosecutions would be unprecedented, they are off the hook no?

    [No. That argument is based on a misunderstanding of the word “willful” as used in criminal statutes. That word does not require an intent to violate the law. It means only that the act was not an accident. — Patterico]

    James B. Shearer (fc887e)

  15. nk, regarding filling in blanks, that would in fact seem to weaken the case since by confirming the information the government appears to be implicitly declassifying it. And remember violations have to be knowing and willful.

    James B. Shearer (fc887e)

  16. I disagree. Key, is the papers sell information for profit. The reporters, editors, and publishers receive a direct financial benefit from printing disclosures which enable terrorism. They are not immune from the laws which apply to all citizens. The First Amendment provides no special protections which shield newspaper employees from the laws against selling government secrets for profit.

    The NY Times and LA Times have done grievous injury to one of the most useful programs we have to fight terrorism, they did it purposefully, willfully, and with malice aforethought, against repeated requests not to do so. Their acts aided the terrorists, and injured Americans.

    They are guilty, they are not immune, and they should be arrested and charged, without delay.

    Black Jack (d8da01)

  17. Patterico,

    The first priority is stop the illegal leaks and guerrilla attacks on the United States Government while it is waging war. Leakers and their media allies are destroying weapons and tools by their actions. The Government should prosecute and the responsibility for alternate actions and solutions should be referred to congress. The First Amendment cannot be used as a shield in order to commit treasonous acts.

    No doubt that there will be fallout and unintended consequences, but the lies and misinformation of the media has undermined morale and goals. It has made the efforts of the United States Government more difficult and more costly. Doing little will not mitigate those costs.

    GVY (749b88)

  18. prosecuting a “leaker” for leaking “classified” information? as i understand it, the swift program had already been disclosed publicly on the united nations’ website (albeit obscurely, and i understand the difference in visibility between that website and the l.a. times, thank you), but wouldn’t this be a defense to such prosecution?
    your argument that this prosecution would not be helpful politically: do prosecutors primarily stand for law and justice, or do they stand for the goals of their party?
    btw, bill clinton did not commit “clear perjury”. as i recall, he denied under oath having sex with monica lewinsky, but “sex” was defined as part of the question, a list of sex acts provided as part of the definition, apparently what bill and monica did wasn’t on the list, and the president felt no obligation to volunteer any information not specifically requested by the question. this isn’t perjury, it’s merely the natural reticence of anybody who knows the first thing about the law.

    [First, I rather doubt that it is a defense to publishing classified information on a large scale that someone else published on a very small scale. If you tell A and B a secret, and A tells his wife, B can’t use that to justify screaming it to passing strangers in a crowded city square, using a bullhorn As for your question about prosecutors’ responsibilities, that’s not really what I discuss in this post. I discuss whether we, as a society, should advocate prosecutions. And we should be careful, if it might alter the political balance against those who take fighting terror seriously. — P].

    assistant devil's advocate (c87740)

  19. The more I think about it, the more convinced I am that there must be at least a credible threat of prosecution of the journalists involved. Actually prosecuting, let alone convicting, is not so important. What is important is to set a precedent that this sort of behavior will not be tolerated by anyone. It’s all well and good to put economic pressure on the NY Times, or to yank the NY Times’s press credential, but so what? Even if that works on the NY Times itself, the next offender might not be the NY Times, nor even a newspaper at all. Had he gotten the scoop, one solitary blogger could have done precisely the same damage as the NY Times did. And he won’t respond to advertiser boycotts, since he probably didn’t run ads to begin with, or in any event didn’t rely on them as a major source of income. Press credentials? You can’t yank what he never had in the first place.

    Of course, we don’t have to apply the laws equally to everyone. We could just give up on clandestine operations across the board, or we could accept the NYT’s arrogant view that they are the high priests of the Constitution, annointed with special rights not applicable to me or thee.

    Xrlq (f52b4f)

  20. your argument that this prosecution would not be helpful politically: do prosecutors primarily stand for law and justice, or do they stand for the goals of their party?

    If you’re talking to me, I’m not talking about the politics of the prosecutor or whether or not the prosecution would be helpful to the Bush administration. I believe the Bush administration would be well within its rights to prosecute. When I say the political cost is to be considered, I mean the cost for the country. The martyrdom of the NYT and LAT editors, the precedent it would set for press prosecution, the possibility that publishers, editors, reporters, bloggers, letter writers could be prosecuted erroneously, a general climate of elevated fearfulness. If there would be such a climate. Probably the editors would just take it as a purple heart to be waved around in triumph–they took one for the team.

    I don’t think this offense is worth those things at this time. I hope it doesn’t cost a direct terror strike that could have been stopped but for the blabbermouths to make me change my mind.

    Anwyn (01a5cc)

  21. BULLSHIT!

    The NYT’s response to critisim was that it was the “Publics’ Right to Know!”

    Last time I checked, Al Quada were part and parcel of “DA PUBLIC!”

    There is NO justification for this, It is Treason!!

    Here’s a clue for ya, DA PUBLIC Does NOT have a RIGHT to KNOW!

    Think about IT!!

    Mike (f8fead)

  22. The reporters, editors, and publishers receive a direct financial benefit from printing disclosures which enable terrorism.

    Actually it’s indirect. Not direct. For example, if the printing leads them to losing advertisement, then they do not receive a direct benefit.

    actus (ebc508)

  23. My original thoughts are that it would make more sense to find and prosecute the leakers, who clearly broke the law and their oaths to follow it, then the NYT, which has made no such oath. The responsibility for the release of classified government information rests with those members of the government who had security clearances to access that information, then illegally provided this information to the press. If this approach is taken, the NYT can be vilified as they are sued and brought into court to identify the known lawbreakers within the government. And the government perpetrators can be thrown in jail. The public will not brook any nonsense about “protecting sources”, because this makes the NYT accessories after the fact, illegally shielding known lawbreakers. And that is clearly against the law.

    Then again, if the NYT knew the information was illegally obtained, then they, indeed, are accessories and must be held accountable for this. It would be like trafficking in known stolen goods that you, yourself, didn’t steal in the first place. I guess there is a case to be made to prosecute the NYT after all.

    blackelkspeaks (078464)

  24. Patterico, et al, who are against prosecution:

    I appreciate your reluctance to prosecute the NYT; however, I disagree. Both the NYT and the LAT have indicated that their default position is to publish anything that they know about any topic. To overcome this default position, in the case of classified information the demand a high burden be met: they demand proof positive that someone will die as a direct result of the publication of the classified material. On the other hand, they won’t publish material that might be deemed culturally insensitive to some minority group. (Consider the Mohammad cartoons, for an example.) The risk that one person MIGHT be offended is great enough to prevent publication of some material, but the risk that our ability to catch terrorists is NOT great enough to prevent publication of classified materials? Obviously something is seriously out of whack here!

    Reasoned argument will not work with people who think this way. Nor will appeals to their moral duty to their country. (They seem to think their moral duty is to publish, even if it does harm, in some difficult to quantify manner, national security.) What is the government left with to try and stem the tide of the publication of these leaks? We’ve got to impose some personal and corporate costs on the publication of classified material. That means the threat of prosecution HAS to be on the table. If the NYT is willing to give up it’s sources and cooperate in their prosecution, good. Give Keller a plea deal that involves no jail time and a small fine. Absent the credible threat of personal and corporate prosecution, I doubt being held in contempt for not giving up sources will be enough to get the cooperation the government needs.

    Having said that, I don’t think the LAT or the WSJ should face prosecution. It appears that they published only after the NYT did.

    David Walser (e15c0c)

  25. I agree that it would be best not to initiate a criminal proceeding against the reporters and editors at this time, so long as a criminal investigation of the leakers is initiated promptly, and so long as the reporters and editors are promptly called to testify before a grand jury. If the reporters and editors name their sources, a prosecution of those sources will be easy, and government employees will be less likely to leak classified information in the future. If the reporters refuse to name their sources, they go to jail for contempt. Sounds like a win-win to me.

    Tim K (7e41e8)

  26. “Actually it’s indirect. Not direct. For example, if the printing leads them to losing advertisement, then they do not receive a direct benefit.”

    Wow, thanks for clearing that up. Now tell me what *good* was accomplished, or is it time for you to go make the slurpees again?

    sharon (03e82c)

  27. Wow, thanks for clearing that up. Now tell me what *good* was accomplished, or is it time for you to go make the slurpees again?

    By the revelation? I read in the post that they had at first cast a wide net and found it too noisy. Then they introduced privacy protections and limited what they were capturing, and this improved the program. I’m happy to know that.

    actus (ebc508)

  28. Well, if we don’t prosecure the newspapers and their editors, how will we keep them from repeating this? At this point, I’m primarily interested in how to stop this from happening again in six months, when the furor has died down. The NYT/LAT editors will look at each other and say… what? What reason will there be on the table to avoid publication? Public opprobium from The Right?
    Perhaps a dragged-out, even if ultimately failed prosecution is needed to convince their in-house lawyers that there’s a tangible cost to doing this. Perhaps a threat to erode their precious journalistic privilege in response is the only way to curb their enthusiasm. Perhaps not – but where the alternate plan to control their behavior?
    Right now, they have a Howard Stern effect – it’s free controversy that sells their stuff, at no lingering cost at all, given that their readership tends to like anything that sticks it to the Republicans.
    And of course I’d prefer to prosecute the leakers instead. But the leakers are encouraged, aided, and abetted by the NYT/LAT. If they walk away smiling, there will be more leakers next time… and they’ll walk away again behind the press’s shield.
    Cheers
    — perry

    Perry The Cynic (f4a930)

  29. In addition to, or perhaps, in lieu of, prosecuting the NYT and LAT, there are a number of other steps that can be taken. The White House can deny them access to Adminstration officials: no more White House or Pentago press conferences, no more trips on Air Force One. Congress can do the same: yank the NYT Congressional press pass and make their reporters have to cover Congress from some offsite office.

    And Frist and Hastert ought to move resolutions condemning the NYT and LAT: put the Dems in a position where they have to choose between condemning the NYT, which will alienate the rabid left, or supporting the NYT, which will alienate the rather large part of the population who think fighting terrorism ought to be job #1.

    steve sturm (b5aa23)

  30. Patterico, regarding the meaning of “willful”, the following is taken directly from Steven’s opinion in the Dixon duress case recently decided by the Supreme Court:

    The crimes for which petitioner was convicted require
    that she have acted knowingly, §922(a)(6),or willfully,
    §924(a)(1)(D).3 As we have explained,unless the text of
    the statute dictates a different result,the term knowingly
    merely requires proof of knowledge of the facts that consti-
    tute the offense.Bryan v.United States ,524 U.S.184,
    193 (1998)(footnote omitted).And the term willfully in
    §924(a)(1)(D)requires a defendant to have acted with
    knowledge that his conduct was unlawful.Ibid .In this
    case,then,the Government bore the burden of proving
    beyond a reasonable doubt that petitioner knew she was
    making false statements in connection with the acquisi-
    tion of firearms and that she knew she was breaking the
    law when she acquired a firearm while under indictment.

    While I am not a lawyer and you are, I do not understand how this can be reconciled with your claim above that “willful” just requires showing the act was deliberate.

    [The editors would not be charged under that statute. Check standard jury instructions on almost any crime. — P]

    James B. Shearer (fc887e)

  31. […] Patterico concurs, and has the good sense to quote me. And he says it’s not just at the appellate level where a prosecution would run into trouble: If prosecutors decide to prosecute, it’s ultimately up to a jury of 12 citizens, who must find the defendant(s) guilty beyond a reasonable doubt. […]

    Hot Air » Blog Archive » Consensus emerges: Don’t prosecute the Times (d4224a)

  32. I understand the core argument to be don’t be seen as being the aggressor in the Civil War.

    The Bush Administration has been delicately trying to avoid taking the offensive. What they have done is let the press hang itself in public opinion. With each leak, public outage grows and the MSM loses its power. Let them destroy themselves.

    On balance, damage to the public security is being done by the press leaks. I’m in no place to offer authoritative judgments as to how much damage but I’d assume it is substantial but not yet fatal.

    That said, I take issue with one prior comment:

    “I believe the Bush administration would be well within its rights to prosecute”

    The executive branch first and foremost has DUTIES, not rights. At some point it is their DUTY to prosecute if the public good requires it in their best judgment.

    Patterico’s tactical advice then seems solid. Escalate in small steps but escalate in ways that help reduce the leakage. Dissemination will decrease with lack of leaked content. Criminal prosecution of pressmen as a consequence of stopping leaks will go down much better with the public. Remember that few shed tears for Judith Miller imprisonment outside her profession.

    The deeper cultural game here is diluting the power of mainstream media as gatekeepers of information. Bush and Rove have run a beautiful game of judo on the press, allowing them to defeat themselves using their own strengths and attacks.

    Let it play out.

    Whitehall (efb88d)

  33. xrlq —

    Of course, we don’t have to apply the laws equally to everyone. We could just give up on clandestine operations across the board, or we could accept the NYT’s arrogant view that they are the high priests of the Constitution, annointed with special rights not applicable to me or thee.

    Great idea! It’s especially good sicne, unlike that stupid court system, the Times doesn’t need to respect its previous decisions and can change them as they see fit depending on hindsight, the current occupant of the White House, the policy affected and the desired outcome.

    Heck, we can skip all those noisy confirmation hearings, too. And Congress for that matter.

    Kevin Murphy (805c5b)

  34. Patterico, I found this, Pattern Criminal Federal Jury Instructions for the Seventh Circuit.

    Section 4.09 Definition of Willfully (p. 58-60) sums up as follows:

    A consideration of the word “willfully”, without benefit of the many cases which have
    attempted to define it, can lead to the logical conclusion that “willfully” is limited to the
    deliberateness of the actor in performing the act alleged in the indictment and need not have any
    reference to his knowledge at the time that the conduct was in violation of law. Earlier cases
    support this approach to the definition of “willfully.” More recent cases, however, have
    incorporated into the concept of “willfully” the notion of the knowing commission of a criminal
    act. All of these things being so, it is rarely desirable to give a general definition of “willfully.”
    If the statute uses the term and it must be defined, it should be defined in a manner tailoring it to
    the details of the particular offense charged.

    The pattern instruction for 18 USC 1001 (p. 206) is:

    An act is done willfully if done voluntarily and intentionally, and with the intent to do
    something the law forbids.

    The pattern instruction for 26 USC 7201 (p. 345) is:

    The term “willfully” means the voluntary and intentional violation of a known legal duty, in
    other words, acting with the specific intent to avoid paying a tax imposed by the income tax laws or
    to avoid assessment of a tax that it was the legal duty of the defendant to pay to the government,
    and that the defendant knew it was his/her legal duty to pay.

    James B. Shearer (fc887e)

  35. Patterico, this is from Ginsberg’s opinion in Ratzlaf v. United States (1994):

    Federal law requires banks and other financial institutions to file reports with the Secretary of the Treasury whenever they are involved in a cash transaction that exceeds $10,000. 31 U.S.C. 5313; 31 CFR 103.22(a) (1993). It is illegal to “structure” transactions – i.e., to break up a single transaction above the reporting threshold into two or more separate transactions – for the purpose of evading a financial institution’s reporting requirement. 31 U.S.C. 5324. “A person willfully violating” this anti-structuring provision is subject to criminal penalties. 5322. This case presents a question on which Courts of Appeals have divided: does a defendant’s purpose to circumvent a bank’s reporting obligation suffice to sustain a conviction for “willfully violating” the anti-structuring provision? 1 We [ RATZLAF v. UNITED STATES, ___ U.S. ___ (1994) , 2] hold that the “willfulness” requirement mandates something more. To establish that a defendant “willfully violat[ed]” the anti-structuring law, the Government must prove that the defendant acted with knowledge that his conduct was unlawful.

    James B. Shearer (fc887e)

  36. Paterico:

    That is a beautiful bit of reasoning and argumentation. I cannot disagree with anything you say except your conclusion.

    If the Times (LA and NY) are guilty of violating a U.S. law, especially one that would punish the disclosure of information that could harm the American people, failure to fully prosecute this crime is completely unethical in my opinion.

    Your main reasons not to prosecute the media miscreants seem to be:
    1. Difficulty getting a conviction (jury nullification)
    2. Bad press for the administration
    3. Difficulty with appeals

    The above reasons are all strong non-ethical considerations. That would put the government squarely on the horns of an ethical dilemma that may justify their passing on the prosecution.

    However, their non-ethical considerations seem less compelling when compared their obligation to defend the American people (an oath they swore) and the slippery slope of throwing up their hands and saying “We just can’t enforce this law because of partisan politics and activist judges!”

    Prosecuting the leakers will not accomplish the same result as prosecuting both the leakers and the publishers. The press must understand that they will be forced to defend themeslves against criminal charges in court when they place American lives at risk in violation of U.S. law, even if the political environment makes a successful prosecution unliklely. In the instant case, the Two Times will be forced to spend significant resources defending themselves and their employees.

    One of the enabling virtues of ethical behavior is courage. Even if the prosecution is likely to be unsuccessful, it should still be brought. Fear of political damage or jury nullification is an insufficent justification to chicken out.

    Truzenzuzex (738f4b)

  37. James B. Shearer:

    Standard California jury instructions have the following definition of “willfully”:

    Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

    See this case for an example of a case applying this common definition.

    That is the general rule, at least in California. That (or substantially similar language) is the instruction I have heard read in countless jury trials.

    You point to a couple of examples where the wording of the statute appears to be such that the language of the statute itself requires the word “willfully” to be read as “with an intent to violate the law.” These are interesting, but they appear to be based on statutory construction — i.e., the wording would make no sense if you did not import that requirement.

    There are such statutes in state criminal law; California’s Penal Code section 290 is one of them. That statute criminalizes the failure to register as a sex offender, and one may do so “willingly” only if one is aware of the legal requirement.

    That, at least in state law, is the exception, not the rule.

    Now, I don’t pretend to be an expert in federal criminal law. And I’m guessing you aren’t either. You raise an interesting issue and I will likely look at it further.

    But what I’m trying to get you to understand is that the argument you initially advocated is by no means the most obvious or natural conclusion.

    If you have a specific argument that the wording of this statute is such that the word “willfully” must necessarily be construed in the way you advocate, feel free to make it.

    But don’t assume that your citations cover the waterfront of how the word is typically used in criminals statutes, just because you have cited limited examples in which it is used that way, based on the way those particular statutes are worded.

    Patterico (50c3cd)

  38. The reason the Times won’t publish the Mohammed cartoons isn’t because they won’t offend anybody, it’s because they don’t want to be killed. As they know, the terrorists aren’t especially likely to target the NY Times building soon, Americans won’t be lynching Times reporters unless and until the whole war on terrorism goes very badly South (e.g., something like 9/11 a few more times), and the Bush Administration belies charges of “fascism” by actually pussy-footing with all manner of enemies.

    DWPittelli (d8ce22)

  39. “By the revelation? I read in the post that they had at first cast a wide net and found it too noisy. Then they introduced privacy protections and limited what they were capturing, and this improved the program. I’m happy to know that.”

    Actus, what *good* does printing this story do? I realize you’re only interested in making snarky comments and obfuscating (what a good lil attorney you’ll be some day!), but this statement doesn’t answer the question. You obviously must have problems with your exams if you can’t answer a direct question directly.

    sharon (fecb65)

  40. James,

    Here’s an example for you. Federal law criminalizes a willful failure to file a tax return. Let’s assume hypothetically that I believe that the tax laws are unconstitutional, and I have found a lawyer who tells me the same thing. I decide, quite willfully, not to file a tax return. But I also believe, quite honestly, that my conduct is lawful.

    Have I violated the requirement that one “willfully” fail to file a tax return?

    I am aware of no case law interpreting section 798. I have every confidence that a prosecution would require that the reporter know that the information he publishes is classified.

    But if he knows this, and knows there is a law against publishing classified information — but (quite honestly, but incorrectly) believes that the law is unconstitutional, is he not like our hypothetical tax dodger described above?

    Patterico (50c3cd)

  41. Actus, what *good* does printing this story do? I realize you’re only interested in making snarky comments and obfuscating (what a good lil attorney you’ll be some day!), but this statement doesn’t answer the question.

    Sure it does. Thats one good thing I got out of it. Another good some people might find is that this whole thing tells them we’re fighting the war on terror effectively and with privacy safeguards. Or at least that its possible.

    But I don’t see why good is required. Not by the law.

    actus (6234ee)

  42. “Actus, what *good* does printing this story do?” – Sharon

    Sharon, what *good* did reporting the theft of veterans’ ID data do?

    It just let the bad guys know they had a gold mine, no?

    The same with reports on secret CIA prisons, the Pentagon Papers, Gitmo suicides, NSA warrantless taps, and on and on. We didn’t *need* to know any of it. You can assume any or all reporting aids enemy interests in some indirect way.

    The President himself boasted of tracking terror funding through bank records in 2004:

    “Before September the 11th, law enforcement could more easily obtain business and financial records of white-collar criminals than of suspected terrorists. See, part of the way to make sure that we catch terrorists is we chase money trails. And yet it was easier to chase a money trail with a white-collar criminal than it was a terrorist. The Patriot Act ended this double standard and it made it easier for investigators to catch suspected terrorists by following paper trails here in America. ”

    Georgw W Bush, April 19, 2004

    I would be shocked to learn we weren’t tracking terrorists through banking records here and overseas. If Fox News had reported this, it would be called Bush cheerleading.

    steve (db6ba8)

  43. I would be shocked to learn we weren’t tracking terrorists through banking records here and overseas. If Fox News had reported this, it would be called Bush cheerleading.

    I answered this argument in this post. Did you miss it somehow?

    It’s not just that they reported that we *are* doing it, but *how*.

    Patterico (50c3cd)

  44. Truzenzuzex, you say it would be unethical to NOT prosecute the NYT. My question to you is isn’t our moral obligation to protect our troops and citizens in the most expedient and effective manner possible the higher ethical calling?

    Going after the leakers is more effeicent, more expedient with a higher likelihood of shutting down future leaks that may put our people in harms way than going after the NYT.

    sbk (15f258)

  45. Steve:

    The same with reports on secret CIA prisons, the Pentagon Papers, Gitmo suicides, NSA warrantless taps, and on and on. We didn’t *need* to know any of it. You can assume any or all reporting aids enemy interests in some indirect way.

    The NSA wiretaps are a good example – we didn’t need to know that, either. As with the current story, we need to know generally that the government is tracking the bad guys and doing what it can to apprehend them. We don’t need to know the precise details of how they are doing it – unless “we” includes the bad guys themselves, who I prefer to think of as “they.” They need to know enough detail to avoid the dragnet. The rest of us don’t, and would be better off if no one but those personally involved in the missions did.

    The President himself boasted of tracking terror funding through bank records in 2004.

    God, you’re dumb. No one is complaining about the fact that the Times reported the fact that terror funding is being tracked. “President Bush himself” didn’t give enough detail to help the terrorists evade tracking or persuade any partipants to pull out altogether. The NYT did. Got it? Jeebus.

    Xrlq (2656a4)

  46. God, you’re dumb.

    The thing is, Xrlq, he isn’t. steve is an articulate and well-informed guy. I hate to keep referring to things I’ve already written, but if you just scroll up to the post that steve is supposedly responding to, you’ll see this passage:

    Ardent blog readers and commenters know, perhaps more than most, how unreasonable some people can be when you challenge their political beliefs. Reason goes out the window. They’ll deny that the sky is blue if helps them make a political point.

    There are some people who are so disenchanted with Bush and his administration that they’d support the publication of almost any article that attacked Bush — regardless of the damage the article might do to the country.

    That’s steve, Xrlq. He’s not dumb. It’s just that his reason is completely clouded by politics, a desire to support journalists, and his Bush-hatred.

    Patterico (50c3cd)

  47. “But I don’t see why good is required. Not by the law.”

    It isn’t that good is required by law. It is required by the ethical standards taught in every reputable j-school. Having the power of the Constitution backing up your profession gives one a greater responsibility in how one uses that power.

    “Sharon, what *good* did reporting the theft of veterans’ ID data do?”

    The good of reporting that is that it was an ABUSE and therefore should be corrected. It is completely different from reporting on a legal, effective program for combating terrorists.

    sharon (fecb65)

  48. You make extreemly compelling arguements. I was wondering, is there a posibility of a civil suit by someone who loses a loved one to terrorists. Would the number of effective programs which were destroyed by the NYT be a reasonable basis for damages?

    Bernie (855856)

  49. Patterico, funny you should mention tax protestors. Cheek v. United States (1991) concerned a tax protestor:

    “Petitioner Cheek was charged with six counts of willfully failing to file a federal income tax return in violation of 7203 of the Internal Revenue Code (Code) and three counts of willfully attempting to evade his income taxes in violation of 7201. Although admitting that he had not filed his returns, he testified that he had not acted willfully because he sincerely believed, based on his indoctrination by a group believing that the federal tax system is unconstitutional and his own study, that the tax laws were being unconstitutionally enforced and that his actions were lawful. In instructing the jury, the court stated that an honest but unreasonable belief is not a defense, and does not negate willfulness, and that Cheek’s beliefs that wages are not income and that he was not a taxpayer within the meaning of the Code were not objectively reasonable. It also instructed the jury that a person’s opinion that the tax laws violate his constitutional rights does not constitute a good-faith misunderstanding of the law. Cheek was convicted, and the Court of Appeals affirmed.”

    The Supreme Court (opinion by White) held:

    “1. A good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness, whether or not the claimed belief or misunderstanding is objectively reasonable. Statutory willfulness, which protects the average citizen from prosecution for innocent mistakes made due to the complexity of the tax laws, United States v. Murdock, 290 U.S. 389 , is the voluntary, intentional violation of a known legal duty. United States v. Pomponio, 429 U.S. 10 . Thus, if the jury credited Cheek’s assertion that he truly believed that the Code did not treat wages as income, the Government would not have carried its burden to prove willfulness, however unreasonable a court might deem such a belief. Characterizing a belief as objectively unreasonable transforms what is normally a factual inquiry into a legal one, thus preventing a jury from considering it. And forbidding a jury to consider evidence that might negate willfulness would raise a serious question under the Sixth Amendment’s jury trial provision, which this interpretation of the statute avoids. Of course, in deciding whether to credit Cheek’s claim, the jury is free to consider any admissible evidence showing that he had knowledge of his legal duties. Pp. 199-204. [498 U.S. 192, 193]

    2. It was proper for the trial court to instruct the jury not to consider Cheek’s claim that the tax laws are unconstitutional, since a defendant’s views about the tax statutes’ validity are irrelevant to the issue of willfulness, and should not be heard by a jury. Unlike the claims in the Murdock-Pomponio line of cases, claims that Code provisions are unconstitutional do not arise from innocent mistakes caused by the Code’s complexity. Rather, they reveal full knowledge of the provisions at issue and a studied conclusion that those provisions are invalid and unenforceable. Congress could not have contemplated that a taxpayer, without risking criminal prosecution, could ignore his duties under the Code and refuse to utilize the mechanisms Congress provided to present his invalidity claims to the courts and to abide by their decisions. Cheek was free to pay the tax, file for a refund, and, if denied, present his claims to the courts. Also, without paying the tax, he could have challenged claims of tax deficiencies in the Tax Court. Pp. 204-207.”

    Scalia would have gone further:

    “I concur in the judgment of Court because our cases have consistently held that the failure to pay a tax in the good-faith belief that it is not legally owing is not “willful.” I do not join the Court’s opinion because I do not agree with the test for willfulness that it directs the Court of Appeals to apply on remand.

    As the Court acknowledges, our opinions from the 1930s to the 1970s have interpreted the word “willfully” in the criminal tax statutes as requiring the “bad purpose” or “evil motive” of “intentional[ly] violat[ing] a known legal duty.” See, e.g., United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Murdock, 290 U.S. 389, 394 -395 (1933). It seems to me that today’s opinion squarely reverses that long-established statutory construction when it says that a good-faith erroneous belief in the unconstitutionality of a tax law is no defense. It is quite impossible to say that a statute which [498 U.S. 192, 208] one believes unconstitutional represents a “known legal duty.” See Marbury v. Madison, 1 Cranch 137, 91 Cranch 177177-178 (1803).”

    White’s opinion appears to leave open the case of someone who believes a law is constitutional but only when construed in such a way as not to apply to him. It seems to me that the distinction between White’s two cases is not clearcut and that Scalia had a point.

    James B. Shearer (fc887e)

  50. It was not an accident that I posed that hypothetical, James.

    Here is the heart of the matter:

    As we see it, he is in no position to claim that his good-faith belief about the validity of the Internal Revenue Code negates willfulness or provides a defense to criminal prosecution under 7201 and 7203. Of course, Cheek was free in this very case to present his claims of invalidity and have them adjudicated, but, like defendants in criminal cases in other contexts who “willfully” refuse to comply with the duties placed upon them by the law, he must take the risk of being wrong.

    This strikes me as being very analogous to the present case. These editors can try to make the case that the First Amendment applies, but if they’re wrong, it doesn’t matter that they believed they were right.

    Patterico (50c3cd)

  51. Patterico, well are we in agreement that “willful” in a federal statute means more than just a deliberate act?

    James B. Shearer (fc887e)

  52. No. Your problem is that you want a one-size-fits-all answer, and each statute is potentially different. However, based on the knowledge I have to date, I think the best answer is that the government need not prove an intent to violate the law. My analogy above is, I believe, on point and explains why.

    Patterico (50c3cd)

  53. When the NYT and others jumped up and down for the CIA Plame referral to be given it’s due, I remember saying that the press should be careful what it wishes for, cause they might get it.

    Now, the Plame precedent is about to repeat.

    June 27, 2006 The Honorable John D. Negroponte Director of National Intelligence Washington, D.C. 20511

    Dear Mr. Director:

    Unauthorized disclosures of classified information continue to threaten our national security – exposing our sensitive intelligence sources and methods to our enemies. Numerous, recent unauthorized disclosures of sensitive intelligence programs have directly threatened important efforts in the war against terrorism. Whether the President’s Terrorist Surveillance Program or the Department of Treasury’s effort to track terrorist financing, we have been unable to persuade the media to act responsibly and protect the means by which we protect this nation.

    To gain a better understanding of the damage caused by unauthorized disclosures of this type, I ask that you perform an assessment of the damage caused by the unauthorized disclosure of some of our most sensitive intelligence programs. While your assessment may range beyond the President’s Terrorist Surveillance Program and Treasury’s Terrorist Finance Tracking Program, I am particularly interested in the damage attributable to these two unauthorized disclosures.

    Sincerely,
    Pat Roberts
    Chairman

    Roberts simply wants the DNI to declare what damage has been done. Once Negroponte has a findng of damage in his hands, it must be referred to DOJ for action (much the way the Plame referral was executed).

    Neo (cba5df)

  54. Patterico, the quote you give in comment 52 is from a Supreme Court decision that overturned a conviction because the jury instructions improperly required that a defendent’s belief that the law didn’t apply to him be reasonable. The Court ruled:

    “1. A good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness, whether or not the claimed belief or misunderstanding is objectively reasonable. …”

    The portion of the opinion that you are quoting was in support of the second part of the ruling which rejected the defendent’s additional claim that a good faith belief that the law was unconstitutional would also negate willfulness. The Court said:

    “2. It was proper for the trial court to instruct the jury not to consider Cheek’s claim that the tax laws are unconstitutional, …”

    So the government must prove intent to violate the law but the government does not have to prove that the defendent believed the law was constitutional. I do not see how you can read the decision as not requiring proof of intent to break the law.

    James B. Shearer (783070)

  55. That’s steve, Xrlq. He’s not dumb. It’s just that his reason is completely clouded by politics, a desire to support journalists, and his Bush-hatred.

    Willfully ignorant, then – which is worse than dumb in my book. Truly dumb people – those who can’t think or reason, as opposed to those who merely choose not to – deserve sympathy rather than derision. But we don’t have a good word for voluntarily dense people, so I often use words like “dumb,” “idiot,” “moron,” etc. as a shorthand. My guess is that the overwhelming majority of individuals either you or I have blogged about under the category “morons” fall into the same category.

    Xrlq (eac760)

  56. SBK wrote:

    Truzenzuzex, you say it would be unethical to NOT prosecute the NYT. My question to you is isn’t our moral obligation to protect our troops and citizens in the most expedient and effective manner possible the higher ethical calling?

    Indeed, protecting our troops and citizens is my main argument for the ethical imperative to prosecute both the Two Times and the leakers.

    Going after the leakers is more effeicent, more expedient with a higher likelihood of shutting down future leaks that may put our people in harms way than going after the NYT.

    That may be so. The problem is, how do we deter and punish other newspapers, or even the Two Times themselves, from continuing to seek out government sources and further damage the nation.

    Let’s examine a hypothetical. Suppose we do what Paterico suggests. Let’s say that the NYT reporter declines to reveal his source, even after he has been immunized. He is then shunted off to prison for contempt under a hail of criticism from the media. How long will he stay there?

    We have seen in the case of Susan McDougal that some people are willing to pay the price of prison to protect what they believe in. Even if the reporter isn’t rabidly anti-Bush, it’s a good bet he believes his status as a reporter is essentially that of a “high priest of truth.” He is as ideologically twisted as any, and will likely suffer prison until the judge is forced to release him or an appeals court makes the call. Then, the government will have achieved none of its aims, and the reporter will be martyred. The damage to the administration will be arguably as severe as a criminal trial.

    On the other hand, a criminal prosecution will cost the Two Times and their shareholders big bucks, even if there is no conviction. As a for-profit enterprises, the company stockholders will surely put pressure on the publilsher to be more judicious in what they publish. A civil suit would serve just as well, if there were such a provision in the law – in fact, I would prefer one. It would be much more effective against publically held companies and would still allow us to ferret out the leakers.

    Truzenzuzex (738f4b)

  57. Truzenzuzex, you argue that Times reporters will stay in jail and never give up those who leaked classified information, with the result that the leakers will not be punished, and the reporters will become martyrs. You argue that a criminal prosecution of the reporters would be better. In my opinion, a direct criminal prosecution of the reporters and editors is much more likely to give them martyr status than is calling them as witnesses in a criminal investigation of the leakers. And I’m not nearly as certain as you are that they wouldn’t eventually talk. The degree to which reporters who don’t talk are viewed by the public as martyrs or as wrongdoings is an open question, and one that all of us can help shape.

    Tim K (7e41e8)

  58. Tim K:

    Truzenzuzex, you argue that Times reporters will stay in jail and never give up those who leaked classified information, with the result that the leakers will not be punished, and the reporters will become martyrs. You argue that a criminal prosecution of the reporters would be better. In my opinion, a direct criminal prosecution of the reporters and editors is much more likely to give them martyr status than is calling them as witnesses in a criminal investigation of the leakers.

    You may be correct. My point was that this “martyr” status will be afforded these miscreants regardless of how the administration approaches the problem, vis-a-vis Patterico’s suggested course of action, or mine.

    In other words, going only after the leakers isn’t likely to solve the “martyr” and bad publicity problems that Patterico uses in part to justify his approach.

    And I’m not nearly as certain as you are that they wouldn’t eventually talk. The degree to which reporters who don’t talk are viewed by the public as martyrs or as wrongdoings is an open question, and one that all of us can help shape.

    Indeed, I could be wrong about whether or not they would talk – that part is pure speculation by all of us.

    And you are right about another thing – the degree to which the reporter/editor/publisher can by “martyred” will be affected by the ability of partisans to make their case for or against. However, that is true of both Patterico’s approach or mine.

    My argument is premised on what I see as the ethics of the situation, not the ultimate outcome.

    Truzenzuzex (738f4b)

  59. Andrew McCarthy, a former prosecutor, has a persuasive argument in National Review that agrees with Patterico on why the best course is to pursue the leakers, not the reporters:

    There is but a single viable strategy here. The focus of the prosecution must be the public officials who leaked, not the journalists who published. The journalists must be given immunity from prosecution. That would extinguish their privilege against self-incrimination, meaning they could be ordered to reveal their sources to a federal grand jury. There is no legal privilege to refuse. We saw that in the Valerie Plame investigation, in which a prosecutor moved aggressively against a leak that pales beside the gravity of what we are discussing.

    If the immunized reporters declined an order to testify, they could be jailed for up to 18 months for contempt-of-court. Jail is an unpleasant place. Recall that it took Judith Miller only a few months there to rethink her obstructionist stance in the Plame case. And the mere specter of imprisonment inspired Matthew Cooper to surrender his source on the verge of a contempt citation.

    Chances are that the journalists who have exposed leaked national-security information over the past several months do not want to spend 18 months in prison. If they were put in that position, we would very likely learn who did the leaking. Those officials could then be indicted. A prosecution against government officials does not entail the same free-speech complications.

    On the other hand, even if the subpoenaed reporters flouted the law by never giving up their sources — even if they took the incredibly arrogant position that their secrets take precedence over the nation’s secrets — 18 months’ imprisonment is a powerful disincentive. Fewer reporters would run the risk. Fewer would-be government leakers would bank on a reporter’s perseverance. The leaks would dry up in a hurry.

    That ought to be the goal here.

    Tim K (7e41e8)

  60. The lawyers here have certainly explored a number of technicalities that I, for one, was not aware.

    Still, the Administration is charged with governance and that is founded, in a democracy, on persuasion.

    The two prime goals to be addressed by Bush are 1) stop or at least reduce further damage to national security and 2) reduce the political power of liberal media.

    A highly politicized direct criminal prosecution of the NYT might achieve goal #1 but would just radicalize and perhaps strengthen liberals and be a step backwards for Goal #2.

    While Senator McCarthy was ultimately proven correct in his core assertions, his Senate hearings were ham-handed and ultimately gave the Left a rallying cry, a cause, and a constellation of “noble” martyrs that resonant to this day (see “Good Night and Good Luck”).

    One reason I think Bush agreed to a special prosecutor for the Plame case was that he calculated that, ultimately, Wilson and the media would come out looking like idiots and liars. That I think was the ultimate conclusion.

    As much as I too would love to see a judge gavel some MSM types to long prison terms, those calling for immediate prosecution of Keller and staff lack political finesse.

    Don’t misunderestimate Bush.

    Whitehall (efb88d)

  61. Whitehall said, “those calling for immediate prosecution of Keller and staff lack political finesse.”

    To those of us calling for prosecution of Keller, et al., at the NY Times, it isn’t a matter of finesse, political or otherwise. No, that’s not it at all. While we do recognize the many political considerations which are a real part of the context in which the dispute rages, we see politics largely as a secondary, diversionary, or tangential element, an important element, but not a controlling one.

    Politics isn’t illegal, leaking government secrets is, and publishing government secrets is also illegal. We insist on a sharp focus on the specifics of who leaked, and who published.

    If we allow the issue of damage to national security to be conditioned on some expedient calculation of future political advantage, we are misdirected away from the most appropriate tasks of identifying the crime and exposing those responsible to criminal indictment.

    And, compelling the criminals to face the public consequences of their despicable behavior is not only the right and proper application of jurisprudence, it’s also good politics.

    Black Jack (d8da01)

  62. Treason by the New York Times…

    Glenn Reynolds asserts that Bill Keller, the news editor of the New York Times, is either not very bright or Keller thinks that you (I think Glenn means Keller’s critics) are not very bright. Glenn’s assertion responds to an open…

    Right on the Left Beach (72c8fd)

  63. Dear Blackjack,

    On one plane, I share your wishes for imprisonment of the responsible employees of the NYT.

    But I wish for something of even greater value to the Republic – the destruction of the New York Times as THE arbeiter of public discourse.

    I think we should focus on that greater goal. An unemployed Bill Keller and a bankrupt Pinch Sulzberger would be a perfectly satisfactory outcome in my opinion.

    Throw a couple of NYT employees into jail and the NYT will continue to print and with even more fierce partisianship. Readership would go UP! They will just go on printing a bunch of sob stories about how unjust it all was – for years. Hollywood will be making movies about it for decades. Think about this equation:

    Bill Keller = Ethel Rosenberg

    Who’ll play Keller? George Clooney?

    Whitehall (efb88d)

  64. I don’t think we should prosecute. We should however, require the Times to register as an agent of al Qaeda.

    Ken Hahn (c2b86f)

  65. I don’t think we should prosecute. We should however, require the Times to register as an agent of al Qaeda.

    Where is htis registry? Or is it top secret?

    actus (6234ee)

  66. The Council Has Spoken!…

    This week the winning Council post was my discussion of The Dance of Escalation and Reaction in the Middle East. In second place was a rather reasonable and reasoned response to another current crisis, How Do You Solve a Problem…

    ShrinkWrapped (72c8fd)

  67. […] Patterico offers the strongest argument I’ve read to date as to why the Department of Justice should not prosecute the New York Times just yet.* I disagree. My reason is simple: I don’t care whether Bill Keller or any of the other yahoos involved in the latest act of treason are brought to justice, or merely criticized for being the treasonous bastards that they are. I really don’t. What I do care about is the precedent that the Bush Administration’s actions, or inactions, as it were, will set. If the New York Times is not prosecuted for publishing classified information in this instance, one of the following precedents will have been set: […]

    damnum absque injuria » Why We Must Prosecute the Times (38c04c)

  68. I actually think you can have it both ways. Several days ago a lefty journalist (and I forget who) swore that Keller et. al. would NEVER reveal their sources but would sit in jail forever instead.

    Convene a grand jury, compel the NY Time reports, editors, and Pinch himself to testify, and then jail them when they won’t reveal their sources.

    Since the NY Times was happy to hang Judith Miller out to dry, there should be no objection.

    And as they sit in jail, day after day after day, we can slowly and methodically close the net around the leakers. And I wouldn’t let the NY Times guys out until all 20 have been caught.

    The market should take care of the rest.

    Jane (5a66ce)

  69. There is more than one way to skin a cat. The leaker hunt seems to be a great way to start..

    Rob (2793e3)

  70. […] Why We Shouldn’t Prosecute the Reporters and Editors of the L.A. Times and New York Times — Just Yet by Patterico’s Pontifications […]

    The Sundries Shack (0542f4)


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