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Media: "the inconveniences attending too much liberty"
Posted by: Jon Henke on Sunday, June 25, 2006

I have to admit to being very conflicted over the recent NYTimes/LATimes stories in which classified information was revealed on an anti-terrorism program. On the one hand, as Patterico points out, the "newspaper[s] made a deliberate choice to print classified details of an anti-terror operation that, by all accounts, was effective and legal." The prospect of media outlets publicizing information vital to national security with absolutely no legal consequences is troubling to say the least. This would, essentially, declassify anything that a cautious agency mole would like declassified, and the media outlets could become little more than the drop-box for spies. ("Don't leave the papers under a rock in the park; somebody might look. Tell the New York Times...they have immunity!") Patterico cancelled his subscription to the paper for reasons that are hard to argue with.

On the other hand, I also don't want to give government the power to control the media via preemptive classification — "you want to do a negative story on us? Well, now it's classified, so if you do it you go to jail!" — or to prevent the media from doing stories on genuinely problematic classified information. 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? And it's worth noting that the congressional briefings were expanded "in recent weeks after having learned that The New York Times was making inquiries." As Arlen Specter asked, "Why does it take a newspaper investigation to get them to comply with the law?"

Given the history of being "allergic to serious oversight", Poliblogger Steven Taylor makes the entirely reasponable point that...
And I am hardly upset with the media for releasing the information, because it seems quite obvious that the administration will not submit to adequate oversight without this kind of public attention.
And one might also remember that, given a choice between too much State and too much Newspaper, Thomas Jefferson chose the newspaper. ["Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter."]

I'm conflicted on the legal, moral and ethical questions in this case. But 'Hume's Ghost' asks the question properly...
I would ask these bloggers how the line between what and what can not be published is to be drawn? If journalists can be prosecuted for publishing what their conscience tells them to be information vital to the public interest, what is to stop the government from classifying anything that it does not want to be known? How are we to decide when a journalist can be prosecuted and when he can not? Are we really that willing to give the federal government such a tool as the ability to prosecute the press for revealing information it wishes to keep hidden?

Let's stop and have a discussion before we let terrorist inspired fear potentially cause us to sacrifice one of the fundamental requirements of a free society - a free press able to provide the public with the information they need need to be self-governing.

"I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it." — Thomas Jefferson
 
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Previous Comments to this Post 

Comments
Yeah, yeah...Jon you’re WORRIED that we may be SACRIFICING FREEDOM!" oi Vey man give it a rest....We faced down the Soviet Union for 50 years, the nation is FREER now than it was at the beginning of the Cold War.

And PLEASE, no more T Jefferson... yeah he said a LOT of liberal/libertaian things when he was an OPPOSITION politician. You ask me he would’ve said something entirely different about governing with or without papers AFTER he was President. Much of Jefferson’s "liberty schtick" comes from the era he was NOT on the national stage but in Va or when he was ambassador to France, NOT WRITING the Constitution.

I love your balance, should the NYT publish this? But then you end with the concern that now the government will proscecute and in the middle you worry about the Administration’s "allergies to versight", though in all the "revelations" it has been apparent CONGRESS WAS INFORMED!

At really no point do you worry about the securtity implications for the US, because the NYT published broad details of A LEGAL AND EFFECTIVE INTELLIGENCE PROGRAM. The focus is on the government, "Oh OH what shall we do" how about we ask the NYT to display a little "concern" too?

There’s a nice take over on another blog, via Instapundit, that makes the point that this is GOOD for the NYT. It’s a part of their marketing plan. Sales are falling, revenue is falling 10% per year, stock value plunging, so whip up some interest and readers by being "fearless" in confronting the Administration! So now the NYT is going to spend it’s time "defending liberty" by blowing the shistle on US security programs. Of course IF there is another large attack a la 9-11 the NYT and others will ask "Why we couldn’t connect the dots?" but like Thomas Jefferson they have it easy, they’re on the OUTSIDE looking in...
 
Written By: Joe
URL: http://
What ticks me off is the blind presumption by the left and some neo-libertarians that the media is honest in its endeavors. Back in late October 2000, we had strong evidence that the media weren’t going to be fair, and that tendency has continued to this day. Of course the media has to have the leeway to investigate institutional wrongdoing and malfeasance. No one is denying that. Some of us just wish the media would recognize and correct its own.
 
Written By: bains
URL: http://
I’m sorry, what exactly was the public interest the NYT was serving (It was very tempting to put scare quotes around that word.) with their article?
 
Written By: Mark A. Flacy
URL: http://
Sure it’s reasonable to question authority. And it’s certainly reasonable to wonder about how government might use the classification process in a less than altruistic way. But this was an effective, legal, national security operation WITH OVERSIGHT used in the middle of a war with the guys who took down the Trade Center. If this isn’t journalistic malfeasance, then nothing is.
 
Written By: John Laver
URL: http://
John Laver writes:
But this was an effective, legal, national security operation WITH OVERSIGHT used in the middle of a war with the guys who took down the Trade Center.
I share Jon Henke and Hume’s Ghost’s fretfulness about the important and delicate balancing here between, on the one hand, national security programs that must be secret, and on the other, the public’s right to know the extent of govt power and given opportunity to legislate some oversight.

We do not know whether, in fact, this particular operation is only used to go after "guys who took down the Trade Center," and it a very intrusive program. This "war" is, to say the least, unconventional, and will last for decades. Do we want the govt to operate such intrusive programs — and the illegal ones such as the NSA warrantless surveillance program as well — for the decades terrorists will be a serious problem? (I know, I know, many reject my characterization of the NSA program as illegal. But that is my steadfast view, which I’ve defended and explained many times.)
 
Written By: Mona
URL: http://
"the nation is FREER now than it was at the beginning of the Cold War."

I would love to see some evidence of that assertion.

"Sure it’s reasonable to question authority"

Sure is, but a lot of people seem to think that they are playing "Jeopardy", and frame their answers and accusations as questions.
 
Written By: timactual
URL: http://
This has got to be a joke right? You people support letting the Bush admin start prosecuting journalists for publishing state secrets, AND call yourselves libertarians? I don’t claim that the press operates in good faith atall, but c’mon, prosecution for publishing Bush’s dirty laundry? It’s absurd! Do you people work for the RNC or something?

I don’t have a problem with the government having secrets, but it’s THEIR JOB to keep those secrets secret. If the information is damning enough and finds it’s way into a reporters hands, I say politician beware. If the press makes a mis-step and publishes something they shouldn’t, let the people punish them where it hurts, in the pocketbook.
 
Written By: D. Mason
URL: http://
I would love to see some evidence of that assertion.
Excuse me... you’ve never taken a US History class? 1947...Jim Crowe...June Cleaver...Rock Hudson is in a closet...

50 years later Danica Patrick, Hillary Clinton could, conceivably, be taking the oath of office for the Presidency, Blacks are entering the middle class in record numbers, and we’re debating gay marriage. 25% of the jobs people perform today we UNHEARD of in 1970...you’re busy communicating about issues of import, instantaneously, with people around the world. You can read The Making of the Atomic Bomb, Dark Sun, US Nuclear Weapons, or Carey Sublette’s Nuclear Weapons FAQ and learn about some of the most intimate details of our nations most secret weapons. You can peruse John Pike’s Global Security website and examine 1 metre photo’s of the USAF Base in Qatar and have an intell analysis that notes changes from previous SPOT satellite passes and draws the conclusion that the US CentCom is preparing to attack Iraq. And you can ACTUALLY ASK FOR EVIDENCE OF THE GREATER FREEDOM TODAY THAN IN 1947.

What are you some kind of Rothbardian An-Cap... because the "state" still exists or because you have to pay an INCOME tax or becasuse the court system(s) haven’t been privitized you have LESS freedom or NO freedom. You know I try not too be too snarky, but that had to be one of the most IGNORANT questions I’ve heard made on this site.
 
Written By: Joe
URL: http://
D. Mason, as Jon’s eloquent post shows, saying you’re a "libertarian" means you get to take any or all sides in this debate.

You should know that there are factions in American Libertarianism.

A "Majoritarian" libertarian would define the "public interest" as it is manifested in democratically-elected government policies. These libs accept the need for "rule-of-law", and are resigned to suffering the occasional "tyranny of the Majority" for the sake of popular, National progress.

An "Individualist" lib. would define the "public interest" as whatever he thinks is his "best" interest at the given moment. These libs posit an anarchic model that suffers from a crippling paradox: anarchy relies on the "self-governing" individual for success, while it wars openly against any popular, social mechanisms that might encourage that "self-policing"

The "free press" organs, in sofar as they pretend to counterbalance "majoritarian" policies, step into this same Paradox.

The goal now for majoritarian Libertarians, Republicans and classical Liberals, is not to regulate the free press, but to use their own presses to highlight these rogue organs’ clear disregard for America’s popular majority.

Kudos to the blogosphere! Just judging from today’s copius blog-postings on the topic, this process is well underway.
-Steve
 
Written By: steve
URL: http://
You people support letting the Bush admin start prosecuting journalists for publishing state secrets, AND call yourselves libertarians?

I’m NOT a libertarian.....
but c’mon, prosecution for publishing Bush’s dirty laundry?
Uh BUSH’S DIRTY LAUNDRY... you mean a legal program with Conressional knowledge designed to collect data on folks who would be gald to inflict antoher 9-11 on the US is Bush’s "Dirty Laundry?" I’m sorry, when did that become dirty laundry at all?
It’s absurd! Do you people work for the RNC or something?

Do YOU suffer from BDS? Are you such a potato head that if something is BAD for the Administration that it must GOOD for eveyone else? That you can’t see the revelation of the existence and details of this program hurts the UNITED STATES, not just the Administration? Is this the where you’re at, "Hurt Bush good"... "Bush evillllll"
I don’t have a problem with the government having secrets, but it’s THEIR JOB to keep those secrets secret.

Good point! I mean it’s the GOVENMENT’S job to keep secret the fact that we can read Japanese Diplomatic and Naval codes. It’s the government’s job to keep secret the plan to defend Midway. It’s the government’s job to keep secret ULTRA. It’s the government’s job to keep the Overlord invasion plans secret. And it the NYT or the LAT or the Strib or the ChiTrib discover them, well it’s OK to publish them right? As I asked TM above, have you TAKEN a US history class? You can say this, given the number of SECRETS that have been held and whose release would have been devastating, but you still can contend, "It’s the government’s job..."
If the information is damning enough and finds it’s way into a reporters hands, I say politician beware.
Yeah, "Damning" information... like how Al-Quaeda finances itself, who’se involved, where the money’s flowing. What may be in the pipeline next, all that "D@MNING" information that we just CAN NOT trust the government with!
If the press makes a mis-step and publishes something they shouldn’t, let the people punish them where it hurts, in the pocketbook.
And if it gets a few hundred or few thousand folks killed, who cares!? ’Cuz that pocketbook thing is going to teach’em!
 
Written By: Joe
URL: http://
Yeah, yeah...Jon you’re WORRIED that we may be SACRIFICING FREEDOM!" oi Vey man give it a rest...
Yes. I worry about sacrificing freedom. I’m a libertarian. This should come as no surprise to you. That you don’t share my concern also comes as no surprise to me.
At really no point do you worry about the securtity implications for the US,
I spent the entire first paragraph on exactly that concern.
What ticks me off is the blind presumption by the left and some neo-libertarians that the media is honest in its endeavors.
I make that assumption about neither the media nor the government.
But this was an effective, legal, national security operation WITH OVERSIGHT
Maybe so. But as Specter pointed out, the administration didn’t really give the proper level of oversight until the New York Times sniffed around it.
This has got to be a joke right? You people support letting the Bush admin start prosecuting journalists for publishing state secrets, AND call yourselves libertarians? I don’t claim that the press operates in good faith atall, but c’mon, prosecution for publishing Bush’s dirty laundry?
I haven’t expressed much in the way of support for anything at all, yet. It’s a very complicated question, and framing it as either ’prosecuting journalists for publishing Bush’s dirty laundry’ or ’treasonous liberal media’ is obstructively simplistic. There are serious questions surrounding this kind of issue, and when I see people immediately jumping to the simplistic answer, it’s hard to believe they’re really considering the complexities.
D. Mason, as Jon’s eloquent post shows, saying you’re a "libertarian" means you get to take any or all sides in this debate.
I’ve taken no side. I merely explained some of the serious questions. It’s the people who are absolutely certain there are no serious quesstions to consider who worry me.
 
Written By: Jon Henke
URL: http://www.QandO.net
And it’s worth noting that the congressional briefings were expanded "in recent weeks after having learned that The New York Times was making inquiries." As Arlen Specter asked, "Why does it take a newspaper investigation to get them to comply with the law?"
A completely WRONG statement. If Congress was being briefed- and it was- then the law was being COMPLIED with.

 
Written By: shark
URL: http://
On the other hand, I also don’t want to give government the power to control the media via preemptive classification — "you want to do a negative story on us? Well, now it’s classified, so if you do it you go to jail!" — or to prevent the media from doing stories on genuinely problematic classified information
Fine but on the other hand when the f*ck did Bill Keller become the defacto power to control classified info? Between the two Jon, you’d better fear Keller more because at least at the end of the day the govt is accountable to us. Keller is accountable to who exactly?
 
Written By: shark
URL: http://
I, too, hesitate to proclaim that the media should have formal restrictions placed upon it.

I am, however, very much in favor of the government cracking down on leaks and the leakers.
 
Written By: Eric
URL: http://
Jon,

I think there are some very important issues here, and some weighty competing interests on both sides that deserve a full airing. Kudos to you for beginning to do that here. I hope to respond to your post in coming days.

But let me ask you this: why do you blindly accept Arlen Specter’s views on what is the "proper" level of oversight? "But as Specter pointed out, the administration didn’t really give the proper level of oversight until the New York Times sniffed around it." Look, if the program was legal — i.e., it complied with Congressionally passed statutes — then it didn’t necessarily *need* any further oversight.

Apparently some members of Congress were briefed, even before the NYT came sniffing around. But naturally Arlen Specter doesn’t think any briefing is extensive enough if it doesn’t include *him*, because he’s a damn egomaniac. He loves to lecture the Supreme Court about how they don’t have the right to step on Congress’s toes, but just because he says something in a huffy tone doesn’t necessarily mean that he’s right.
 
Written By: Patterico
URL: http://patterico.com
Joe, even though you convieniently overlooked it, Bush does classify his dirty laundry(unconstitutional wiretaps anyone?). If I thought, even for a moment, that reprocussions against reporters who publish classified info would ONLY affect them in matters of national security I would be ok with it, but this government will call anything national security if they decide doing so is to their own benefit. Since there is no way the people could hand that kind of power to the government without abuse, press protection should remain untouched. Is there a risk involved with such a practice? Sure, but I believe that for the well being of the nation it’s worth it to have a free press. It’s not as though the press frequently publishes truly sensative classified information. Some risks are just worth taking.
 
Written By: D. Mason
URL: http://
Jon,

The House and Senate intelligence committees were fully briefed, according to Tony Snow. Does Arlen Specter have to be told about every classified program we have?
 
Written By: Patterico
URL: http://patterico.com
My initial, emotional reaction was anger with the NYT. I immediately assumed this was a weak, partisan contribution to the "Republicans can’t be trusted" slogan — weak because there doesn’t seem to be anything to not trust if you examine what was actually being done — and someone needs to put a stop to this. As I said, this was an emotional reaction.

However, rationally speaking and regardless of what I feel, I can’t go along with the idea of any government action against the NYT. Administration PR against them, party PR, people complaining and debating, cancelling subscriptions, are all things I agree with. But I can’t agree with any use of goverment power to silence the press.

Now if a reporter were, for example, to somehow break into the Pentagon, photograph classified files, and print the contents in the newspaper, then I’m all for prosecution and severe punishment. But if someone hands information over to them and they decide to print it, I can’t decide to use the law against them even if I question their policies, politics and patriotism.

The problem in this scenario is the person(s) that gave the information to the NYT. They are the ones responsible that should be held accountable. Someone with security clearance to know about the program broke the security. What is the legal process and remedy for leaking classified information? That is what I want pursued.
 
Written By: Scout
URL: http://
Joe, even though you convieniently overlooked it, Bush does classify his dirty laundry(unconstitutional wiretaps anyone?).

Uh that would be the monitoring of foreign communications, and hence having no legal protection, that was briefed to Congress? You begin to sound like a sufferer of BDS.

Since there is no way the people could hand that kind of power to the government without abuse, press protection should remain untouched. Is there a risk involved with such a practice?


To an extent true.. I’m glad that the Pentagon Papers were released and the bombing of Camdodia was a good release. But this case is in a different league. It is a LEGAL program, and Congress was briefed... as someone else asked just who is Bill Keller accountable to?
Sure, but I believe that for the well being of the nation it’s worth it to have a free press. It’s not as though the press frequently publishes truly sensative classified information. Some risks are just worth taking.
It’s not simply a choice between a Free Press and National Security. You make a False Dichotomy here...and No the Press hardly EVER releases any sensitive data. No, no the NYT has not been talking about issues of communication monitoring or financial tracking or the detainment of AQ large fish...
 
Written By: Joe
URL: http://
Hey, I like that new word you invented, by accident I presume.

Reasponsable. A neat combination of reasonable and responsible.

Although I glossed over it in my post, there is nothing I disagree with in Jon’s first paragraph.
 
Written By: Hume’s Ghost
URL: http://dailydoubt.blogspot.com
Jon,

You’ve raised intersting questions. However, I think you’ve picked a bad example to raise these question. The reason is that in this case the answer to the following question is very easy:

"I would ask these bloggers how the line between what and what can not be published is to be drawn?"

Let’s see, the program is legal, effective and "the House and Senate intelligence committees were fully briefed". Also, NYT had no information that anybody besides terrorists was targeted. Is this so hard to see this "line" in this particular case? I guess, if you work for NYT it is. Consider their eagerness to prosecute the leakers in Plame affair where ZERO damage to national security was done. But if NYT is the leaker that’s ok then, they are the press.
 
Written By: IR
URL: http://
Jon,

My only question, when you’re discussing Jefferson & newpapers, is how you could leave out one of his much more famous quotes. It shows that he’s not a big fan of the newspapers in general, and should put into better context just how highly he values a free press...

The man who reads nothing at all is better educated than the man who reads nothing but newspapers.


 
Written By: Brad Warbiany
URL: http://unrepentantindividual.com/
Yes, Jefferson said that about the Federalist papers which were character attacking him and calling him an atheist (which one can imagine was qutie an insult back then.) That doesn’t mean he was against the freedom of the press, however.
 
Written By: Hume’s Ghost
URL: http://dailydoubt.blogspot.com
Joe, you my friend seem to be the one suffering from BDS. You’re deranged if you think Bush is acting in good faith with his domestic spying. You’re deranged if you think government officials who parse their words so carefully and guard their secrets so closely are doing so for the betterment of the nation.

Bill Clinton was obviously up to no good when he tried to re-define the word "is". George Bush reveals himself to be of similar character with his attempt at re-defining "Commander in Chief" to include across the board power to ignore duly enacted laws when we’re at "war". A war, might I add, that was created out of whole cloth, by him. Seems like a handy exscuse to me. A trillion dollar exscuse, backed by false claims.

If you think the deception and obfuscation carried out by this regime are for the good of the nation then you, sir, are deranged.
 
Written By: D. Mason
URL: http://
Ok, leave the NYTimes alone. However, given the recent decision by SCOTUS thanks to the Plame case brig nail the reporters and editors for their sources. Perfectly legal and within the bounds of the Constitution.
 
Written By: John (AGJ)
URL: http://averagegayjoe.blogspot.com
Test...
 
Written By: Joe
URL: http://
You’re deranged if you think Bush is acting in good faith with his domestic spying. You’re deranged if you think government officials who parse their words so carefully and guard their secrets so closely are doing so for the betterment of the nation.
Of course not, he’s interested SOLEY in some nefarious plot involving the Trilateral Commission and those responsible for chemical trails along with his rich Oil Buddies to create a Fascist Amerika with himself as "King" or "Village Idiot for Life." Gee D. I guess it’s NOT so freak’n obvious that the Administration DOESN’T have the national interest at heart...That first block quote said, "D.’s on the edge..." We can say "I disagree with the President’s policy because I think that it will NOT solve the problem and in fact may COMPOUND it", but that’s a far cry from saying, "The President is in it for HIMSELF, he’s takin’ over!" Sorry right now I’d put you in with the Kossac/DU/Justin Raimondo Potatohead Crew...
 
Written By: Joe
URL: http://
A war, might I add, that was created out of whole cloth, by him. Seems like a handy exscuse to me. A trillion dollar exscuse, backed by false claims.
Dude, I must have been on the Brown Acid, because I sure remember airplanes smashing into a number of building’s ’round these parts and prior to that I members some Usama feller declaring war on the US an’ Infidels an’ such, an’ PRIOR to that I seems to REE-call folks named Habash, Arafat, an’ groups with a whole passel of lettres in their names, Fatah, PLO, PFLP, Hizbollah, Hamas, all saying’ how that wanted us our friend in Israel to die. But I reckon all that was just Chimpy McShrub media manipulation....some Dark Rovian plot to get the sheeple to give away their Freedoms for Security.
 
Written By: Joe
URL: http://
Of course not, he’s interested SOLEY in some nefarious plot involving the Trilateral Commission and those responsible for chemical trails along with his rich Oil Buddies to create a Fascist Amerika with himself as "King" or "Village Idiot for Life."
That’s a nice strawman you’ve erected! Shame you had to knock it down.

I never claimed any of those things you’re trying to attribute to me. There is a far cry between failing to act in good faith and conspiring to take over a nation. I’m quite sure Bush’s actions fall somewhere in the middle though. His words sound noble and pure(and a little akward at times), but his actions paint an entirely different picture. Refute that in any way you can, or accuse me of wearing a tin-foil hat, whatever you feel more comfortable with. I have a suspicion about which you’ll choose.
Sorry right now I’d put you in with the Kossac/DU/Justin Raimondo Potatohead Crew...
Of course you would, afterall I disagreed with you so I must be some looney liberal commie right? It’s much easier to dismiss someone who disagrees with Bush policy as crazy or deranged than to actually back your man huh? Is it hard to put makeup on a pig joe? Just asking.
Dude, I must have been on the Brown Acid, because I sure remember airplanes smashing into a number of building’s ’round these parts and prior to that I members some Usama feller declaring war on the US
And why don’t you tell me the story about how Iraq was involved with that?
 
Written By: D. Mason
URL: http://
And why don’t you tell me the story about how Iraq was involved with that?
Dude never said that it WAS...the program in question doesn’t DEAL with OIF, it deals with Al-Quaeda financial transactions. You might have missed that one.
His words sound noble and pure(and a little akward at times), but his actions paint an entirely different picture. Refute that in any way you can, or accuse me of wearing a tin-foil hat, whatever you feel more comfortable with. I have a suspicion about which you’ll choose.
Yepper you got it... no evidence...noble words... deeds are EVIL..Yepper you get the tinfoil hat.
 
Written By: Joe
URL: http://
So, D, please explain to us just what "faith" and what aim you mean by this:
You’re deranged if you think Bush is acting in good faith with his domestic spying. You’re deranged if you think government officials who parse their words so carefully and guard their secrets so closely are doing so for the betterment of the nation.
 
Written By: bains
URL: http://
By the way Jon, I think that the entire premise you have here is faulty. You need to take into account that the media in many instances here are simply acting in bad faith. Calculating this dilemma against a media that is acting as a "watchdog" is one thing, calculating with a media that is actively trying to aid and abet one of the major political parties to the detriment of the other one is quite another.
 
Written By: shark
URL: http://
Of course not, he’s interested SOLEY in some nefarious plot involving the Trilateral Commission and those responsible for chemical trails along with his rich Oil Buddies to create a Fascist Amerika with himself as "King" or "Village Idiot for Life."
Dude, you forgot the neocon connection for the JOOOOOOOOOOOOOOOOOOOOS!
 
Written By: shark
URL: http://
The reality is that the leaks should be illegal and prosecuted. If there is some dark horrible secret, then the agent would still take the risk to leak it because it’s so bad, but as of now it seems like there are no consequences for the leakers.
 
Written By: Harun
URL: http://
While I have nothign but contempt for the New York times and everythign connected with it. . .I will choose to save my true Vitriol for whatever slimebucket it was that actually GAVE the NEw YOrk TImes a bullet for their unloaded gun. .
 
Written By: RYan
URL: http://
Mona said:
We do not know whether, in fact, this particular operation is only used to go after "guys who took down the Trade Center," and it a very intrusive program.
And since the publication of this article I assume we now know the extent of the program and that it was not used to only go after "guys who took down the Trade Center..." We don’t?
Via Hot Air
SWIFT negotiated with the U.S. Treasury over the scope and oversight of the subpoenas. Through this process, SWIFT received significant protections and assurances as to the purpose, confidentiality, oversight and control of the limited sets of data produced under the subpoenas. Independent audit controls provide additional assurance that these protections are fully complied with.
All of these actions have been undertaken with advice from international and U.S. legal counsel and following our longstanding procedures on compliance, established by our Board.
So once again the U.S. is proven to betray confidentialities just as what occurred with the probably fabricated story on eastern European prisons.
Well, Mona SWIFT appears to have installed oversight protections, Congress was briefed-Spector wisely was not-the program was legal, it was not, as you suggest, intrusive so what was the real point in publishing this article?
Everyone is reluctant to pursue charges against the NYT. How do you feel about an investigation into the identity of the leaker? Leave the Times alone and start burning their treasonous informants.
 
Written By: tom scott
URL: http://
Scout - But I can’t agree with any use of goverment power to silence the press.
Well, why not? Do you place the Press higher than the Executive, Congress, or the Courts?

Do you think the 1st Amendment negates the Preamble of the Constitution which specifies the critical goals the Constitution is written to establish? That the 1st Amendment overrules all text and Amendments but the 1st?

The Press is no more above the law and the REST of the Constitution than the other 3 branches and a Newspaper Editor or owner (Now including all us global bloggers & foreign press like AlJazeera) are not magically transformed to be above the laws the rest of us are under.

What we will find if the Bushies develop enough a scrotum and spine to go after the leakers is we will find not so much people of conscience but people of opposition to the present elected government and the changes happening within their particular fiefdom that our system has elected policymakers accountable to the people, not unaccountable bureaucrats, make. They leak to like-minded media thinking it is a safe harbor as "inviolable sources" to wage political struggle without fear of being burned. And Press in opposition to the present elected government are only too happy to oblige to get money out of the PR, and a chance to hurt the people they oppose so angrily, even at the price of national security. They are - both the leakers and press - playing with fire with this - but are too arrogant to think they are placing their own sweet asses, all they truly care about, not the country, in danger. The NSA leak ranks right up there with past leaks that got CIA people and US soldiers killed. "SPRINT" is a level or two lower.

If the leakers are caught, I can bet you that they, almost to a person, will be people that did not raise their concerns to superiors, did not pursue independent channels of complaint within their federal agencies, did not use the Federal Whistleblower Statute...and if rebuffed in those venues, did not communicate with their Congress Rep or Senators asking for assistance. Or tender their resignation on principle. You will find they are disgruntled employees whose opinions were rejected, political activists engaged in political sabotage, or people who have turned discretely, but genuinely Anti-American. Few if any are pure "conscience-players", though if they are nabbed that will be their excuse.

We have laws that are empowered from We The People. Bill Keller, NYTimes reporters and the Controlling Sulzberger Family are not above those laws as "Press" anymore than I as a weapons owner am above all regulations due to the 2nd Amendment.

Even if the NYTimes hadn’t been screaming about special prosecutors to find and nail who leaked deskjockey Valerie Plame’s name out, I’d have no respect for them from past stunts that have killed Americans in consequence. But for the NSA leaks, I’d like to see direct prosecution of both Keller and the Sulzbergers here and in Israel and Switzerland (who own 81% of the controlling Class B shares) - under the Espionage Act. And if convicted, none can remain under SEC rules as corporate officers or directors. The SEC can even order the Sulzberger Family, if they are damaged goods under the Espionage Act, to relinquish the Class B share structure and convert it to common A shares to retain equity in their old family business. (B Shares comprise only 19% of net equity in NYTimes ownership, but give the Sulzbergers control at present). If they wish to use their media as a political attack machine and violate laws and jeopardize national security in the process of achieving their political goals(something the oldline Ochs-Sulzbergers never DARED to do) - let them accept consequences.

If any of us willing to break laws to advance our own political agenda - we would have to accept consequences if caught. I see no part of the Constitution that specifically exempts anyone from laws except the President under Article II and Congress during Hearings - and neither from high crimes and misdemeanors or Congress from "public disturbance".

This isn’t a libertarian issue. If it is, it is limited to those "libertarians" so ignorant of the rest of the Constitution they believe "Absolute Freedom of the Press" forces us all to negate whole other sections of the Constitution and all Legislative laws arising in consequence to the Constitution when it involves crimes involving members of the Press.



 
Written By: C. Ford
URL: http://
"This isn’t a libertarian issue. If it is, it is limited to those "libertarians" so ignorant of the rest of the Constitution they believe "Absolute Freedom of the Press" forces us all to negate whole other sections of the Constitution and all Legislative laws arising in consequence to the Constitution when it involves crimes involving members of the Press."
I.E.

Mona

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Dude, you forgot the neocon connection for the JOOOOOOOOOOOOOOOOOOOOS!
D@mn, how could I have forgotten THEM!? Thanks dude... next time they’re in from the start!
 
Written By: Joe
URL: http://
"I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it." — Thomas Jefferson

*****

As long as people recognize that one of the inconveniences of to much liberty is the occasional mass slaughter of our fellow citizens, then why not publish everything about the exact methods we are using to hunt down the enemies of our liberty.

I don’t know that I would take Jefferson to much to heart on the subject of newspapers. Communication back then was weeks, and months removed from events. Not instantaneous and globally available.

I think what the New York Times did was to serve their own interests, and not our nations. Now, I don’t know how much our anti-terror efforts have been damaged by this article, but it certainly doesn’t give me happy thoughts.

If Specter thought there should be more oversight, then why didn’t he, and/or the committees he is on ask for it?

http://counterterrorismblog.org/2006/06/reports_of_us_monitoring_of_sw.php
Yesterday’s New York Times Story on US monitoring of SWIFT (Society for Worldwide Interbank Financial Telecommunication) transactions certainly hit the street with a splash. It awoke the general public to the practice. In that sense, it was truly new news. But reports on US monitoring of SWIFT transactions have been out there for some time. The information was fairly well known by terrorism financing experts back in 2002. The UN Al Qaeda and Taliban Monitoring Group , on which I served as the terrorism financing expert, learned of the practice during the course of our monitoring inquiries. The information was incorporated in our report to the UN Security Council in December 2002. That report is still available on the UN Website. Paragraph 31 of the report states:

“The settlement of international transactions is usually handled through correspondent banking relationships or large-value message and payment systems, such as the SWIFT, Fedwire or CHIPS systems in the United States of America. Such international clearance centres are critical to processing international banking transactions and are rich with payment information. The United States has begun to apply new monitoring techniques to spot and verify suspicious transactions. The Group recommends the adoption of similar mechanisms by other countries.”

Suggestions that SWIFT and other similar transactions should be monitored by investigative agencies dealing with terrorism, money laundering and other criminal activity have been out there for some time. An MIT paper discussed the pros and cons of such practices back in 1995. Canada’s Financial Intelligence Unit, FINTRAC,, for one, has acknowledged receiving information on Canadian origin SWIFT transactions since 2002. Of course, this info is provided by the banks themselves.

While monitoring SWIFT-handled transfers is a useful tool in identifying and tracking certain suspicious transactions, its importance should not be overstated. The information in SWIFT’s hands is no better than the information which it is provided by the banks handling the transactions at both ends. And there is already an obligation on banks in the US and Europe to report all “suspicious transactions” The problem is that FINCEN and the corresponding FIUS in other countries have simply been overwhelmed by the enormous amount of transactions that are reported to them (see my earlier blog) Another problem is that European Banks are just getting around to providing (and requiring) information, such as names, account numbers and addresses of originators and recipients of transactions channeled or handled by them through SWIFT or other international transfer facilitators (see my earlier blog). And most banks outside of Europe, the United States and other OECD countries, still do not require, or verify, such information.

The fact is that there is really very little privacy today when it comes to the international transfer of funds. That is why criminal networks, money launderers and terrorist groups have increasingly turned to Hawalas and cash couriers for such transactions.
http://counterterrorismblog.org/2006/06/us_government_terrorist_financ.php

http://counterterrorismblog.org/2006/06/initial_comments_about_terrori.php
 
Written By: Keith, Indy
URL: http://
C. Ford,

I like your argument. Surely we can agree that this is an unusual circumstance. I am more conservative than libertarian, but the right thing to do here isn’t clear to me.

Not prosecuting the NYT in this instance furthers the precedent that "anything goes" for the press. They will continue to push and likely increase the danger to the country.

Prosecuting them sets a modern precedent that the government is willing to silence the press when circumstances warrant, which I suspect the press will rebel against. What happens when another one, two, or ten tests the government’s willingness to prosecute?

In my mind, neither of these is a desirable precedent to set.

To be clear, I dispise the modern press that puts personal political concerns above all else, regardless of their politics. I would like to see the Espionage Act prosecutions that you described. I’m just not sure they are in our best interest.

Pretend that the NYT, after writing the story, didn’t publish it but emailed it to an AQ leader. That should be a clear case of espionage. But is publishing it for the world to read the same thing? I can see the argument both ways. The NYT has put us in a bad situation that could have been avoided if they would have heeded the government’s request. Some precedent is going to be set, and as I said I don’t like the choices.

What I would prefer to see is the leaker prosecuted, convicted, and receive the maximum punishment. My preferred method of determining the leaker is to get the NYT to give up the source. Sources are not protected by law, journalists just always refuse to give them up. When they refuse to give up the source, and they will, then prosecute the NYT. Even suggest that the "leak" doesn’t exist and that the NYT stole the information themselves as spies, whatever can be done.

Punishing the leak for leaking, rather than the press for publishing, seems to me to be the better way to resolve this difficult situation.
 
Written By: Scout
URL: http://
This is a serious question, but this is not a serious test case of that question.

Folks, this is not really a secret program. If there was really anything about this program that was secret, I might understand why people would consider the leak against US interests, although I’d still call it the price we pay for a free country and not support punishment. But there’s no new information here except a slightly higher level of detail. It’s common knowledge that our government is working with the international banking system to monitor, target, and deny funding to suspected terrorist agents and groups. For pete’s sake, every terrorist expert who wrote an article like "what do we do about 9/11?" mentioned this angle. The PATRIOT act contained explicit provisions for this sort of thing. If some Al-Quieda agent was sitting around wondering "gee, i wonder if this bank account transaction involves a risk that someone will red-flag it for terrorism activity?", they could figure that out by listening to Fox News transcripts from 2001, 2002, 2003, 2004, 2005, etc.

If this article had been rewritten to lavishly praise the Bush admin’s work with this program while including exactly the same info, and been released by Fox News instead of the NYTimes, people would be linking to it and saying "great article! look, we’re kicking GWOT butt!" instead of talking about prosecution.

If and when the NYT publishes something that actually specifically hurts the GWOT, info that tells Al-Quieda anything my little sister doesn’t know, something like "Hey, Mr. Abdul Slamma-Jamma, we’ve heard that the government is monitoring YOUR acccounts right now, hurry and close them" - then I’ll be all with you on prosecuting the source and heaping scorn on the NYT. Until, this is a false crisis for political purposes.
 
Written By: glasnost
URL: http://
glasnost,
If this article had been rewritten to lavishly praise the Bush admin’s work with this program while including exactly the same info, and been released by Fox News instead of the NYTimes, people would be linking to it and saying "great article! look, we’re kicking GWOT butt!" instead of talking about prosecution.
In your hypothetical, if the government came out saying the program was working, they believed the story would damage the program, and they had asked Fox not to run the story, then I for one would still be talking about prosecution. If it was a praise piece and the government didn’t ask them to stop it, I would assume, perhaps incorrectly, that it wasn’t leaked classified information.
If and when the NYT publishes something that actually specifically hurts the GWOT, info that tells Al-Quieda anything my little sister doesn’t know...
While I can appreciate your point of view, let me point out that the government said the program was working. In your view, this means that whomever it was working on either didn’t rise to the level of your sister’s knowledge, or did but didn’t care. If, as you say, the NYT’s "slightly higher level of detail" isn’t anything new, then it shouldn’t have any impact and the program should continue to work as it did before.

Here is a hypothetical for you: If the government announces in the near future that since the NYT story the program has ceased to work, will you hold the same viewpoint?

Here’s an exaggerated hypothetical: The NYT gets a classified leak about port security with a "slightly higher level of detail" than we already know about. The government asks them not to run it, they do anyway, and as a provable direct result Manhattan is reduced to ash. Who, in your view, would be at fault — the NYT, the leaker, or the government?
 
Written By: Scout
URL: http://
If and when the NYT publishes something that actually specifically hurts the GWOT, info that tells Al-Quieda anything my little sister doesn’t know, something like "Hey, Mr. Abdul Slamma-Jamma, we’ve heard that the government is monitoring YOUR acccounts right now, hurry and close them" - then I’ll be all with you on prosecuting the source and heaping scorn on the NYT. Until, this is a false crisis for political purposes.
Whilst your sister might have known of the existence of these financial records and the ability of government’s to monitor and compile profiles on them apparently AQ and others were NOT. Israel monitored Western Union transfers to West Bank accounts to nail terrorists. It took THEM years to piece together that Israel was linking Western Union transfers to THEM. So whilst your li’l sis may be quite the intell pro... our opponents may not be so bright.

BTW, this discussion seems, in part, based on an odd theory, that you have Right to Know EVERYTHING your government does. It’s YOUR government, but no you don’t get to know it just because YOUR dime paid for it. It’s a Representativee Government, your Representatives get to know it, and they did the President AND the House and Senate Intelligence Committees. I can’t remember the NYT being elected to ANYTHING, and I have a hard time accepting that they have MORE of a "right to know" than me. After all, the 1st Amendment, as I and others have said, doesn’t trump the rest of the Constitution, nor does it give the Press MORE rights than you or I.
 
Written By: Joe
URL: http://
You’re deranged if you think Bush is acting in good faith with his domestic spying.
Deranged? Mistaken, possibly, but hardly deranged.

And "domestic spying"? I would hardly consider monitoring of international calls "domestic spying".
 
Written By: Don
URL: http://
"the nation is FREER now than it was at the beginning of the Cold War."

I would love to see some evidence of that assertion.
Well, Nixon leagalized ownership of gold (which FDR banned).

Joe pointed out the improvements in Civil Rights, etc.

In general, we probably are less free: the Endangered Species Act, for example, has been a bane of property rights. But more than before, we are moving in the right direction. At the benigging of the Cold War, it appeared that the left would emerge victorious. The left lost, and while a lot of its excesses remain, we can go about overturning them one step at a time. Like when Nixon legalized gold . . .
 
Written By: Don
URL: http://
Mona: I know, I know, many reject my characterization of the NSA program as illegal. But that is my steadfast view, which I’ve defended and explained many times.
I haven’t seen anything on the NSA program that makes me think it is illegal. I’m not fully convinced it is legal, but I’m leaning that way.

On the other hand, post 9/11 it is clear that it is a program with great potential value for security.

I can think of lots of laws and acts that in my mind are clearly illegal: mostly violations of either the 10th or 2nd Amendments. Most are based upon New Deal or Great Society legislation.
 
Written By: Don
URL: http://
Scout:

let me point out that the government said the program was working


While it’s not a good idea to consider such a statement verified just on the government’s say-so, I’m willing to believe that this is possibly true, to one extent or another, if by "working" you mean to say that the government has at some point in time intercepted money belonging to groups deemed terrorist by the USGov.

However, if someone was to say that this program was 100% effective and was catching every terrorist-supporting transaction made by every radical Islamist sympathizer, I’d find that highly unlikely.

And that’s why, ironically, the system is working to X%: because terrorists have a 1/x% chance of beating it. I’d bet my bottom dollar that the average muslim radical still using the banking system is aware of the possibility of having it caught - like I said, the fact that we’re looking is very common knowledge, disscussed casually by government officials, pundits, and etc. on the record all the time. But since the chance of getting caught even though we’re looking is less than 100%, they try anyway. The riskier/dumber/more pressured ones.

The smarter ones traded the banking system for the informal hawala system years ago. There have been plenty of articles on the unregulated hawala system, and how it spiked in popularity after the Patriot Act being passed and the much-discussed bank programs at that time. This has never been a supersecret program, and I don’t see any detail published here that would allow a terrorist to thwart the system except by dropping out of banking entirely, which is the same cost-benefit choice they were facing before.

Joe:

the public’s right to know will often conflict with military advantage. If we’re firing torpedoes at Japanese subs that don’t work, the public has a right to know, so we can hold the government accountable. On the other hand, the Japanese now know that some of our torpedoes don’t work - except that if they had a brain in their heads they’d have noticed this themselves by now. It’s a conflict of interest, but there are adverse consequences to not informing the public of the government’s action. Certainly, no one can say that it’s not the public’s right to demand to be told. The government may have the right not to inform us, if the courts agree, but usually only in "ticking bomb" situations.

The press’s job is to inform us. The government will often see not keeping us informed as a function of its job. Both of these things can endanger a country.
How the balance is struck is a matter for public debate and the courts to decide.


Don:

I haven’t seen anything on the NSA program that makes me think it is illegal.

The Foreign Intelligence Surveillance Act specifically prohibits monitoring the phone calls of US citizens by any executive agency only a warrant is first issued by the Foreign Intelligence Surveillance Court. This law has never been found unconstitutional by a court, and like every other law that is not found unconstitutional, is in effect, period. It has been reported and admitted that the creators of the NSA program are not seeking warrants from this court before wiretapping US citizens. Thus, the program is illegal. Don’t thank me for catching you up on the last 3 years of news or anything.


can think of lots of laws and acts that in my mind are clearly illegal:

Son, time to learn the difference between illegal and unconstitutional. It’s sort of a logical absurdity to suggest that a law is illegal. Sort of like calling the Constitution Unconstitutional.

As for your opinions on Constitutionality: they’re all well and good for public debate, but they provide no basis for action or substantive merit until a court of law agrees with you. I, as well, think plenty of laws out there are unconstitutional, although not the same ones, but my opinions are no basis for calling my disobediance of said laws itself legal.
 
Written By: glasnost
URL: http://
C Ford:

This is a rather hateful rant, but more importantly, it’s full of invective and unsubstantial moral judgements.

The NSA program is blatantly and obviously illegal. The article about it did nothing more than expose the illegality of the program, i.e., its failure to follow legally required protocol. It revealed no useful operational information except for the general fact of our ability to tap phone calls en masse, something our enemies have been well aware of for decades. Osama Bin Laden stopping using phones in the 1990’s so the NYTimes did not break this particular bit of info.

The "official channels" for people concerned with illegal government actions are, quite frankly, laughable. They have about as much utility as complaining that you don’t like your software license agreement, your security clearance vetting process, or your income tax. But either way, your beef here is with the people who leaked the info to the press.

As for the press, sure, no one’s above the law, congradulations, now please go ahead and tell me what law they broke, ok kid? Don’t even go into the Espionage Act of 1916. It’s worded vaguely enough to make it reasonable to throw Jon Henke and all of us in jail for continuing to spread the secret that the NSA wiretap program exists - in other words, it’s vague to the point of prima facie uselessness. No court in the land would convict someone based on it - which is why the Admin isn’t doing it. If they could, they would. It is, basically a dead law. That’s why there are 0 convictions from it. Now, I agree that it’s bad for the republic and the rule of law to have laws on the books that can’t possibly be enforced under our current system of government as we know it. Obviously, the law should be formally repealed or struck down in court. But neither of these appropriate solutions will happen until the government tries to use it on someone.

Everything else in your post is invective, opinion, and empepheral speculation on people’s motives, in which case, feel free to spew away, but don’t pretend you have a substantive argument.

PS: I’d like to see the NYTimes given a Medal of Honor for publishing the NSA story, personally. I’d also the current and former heads of the NSA imprisoned for breaking the law, after being found guilty in court of course. How bout we charge Gen. Hayden with breaking FISA and the NYTimes with violating the espionage act in parallel cases, and see what the courts think? Anytime, buddy. It’d be Christmas and the Super Bowl.
 
Written By: glasnost
URL: http://
glasnost,

I don’t think we are in disagreement. The mention of "prosecution" in my comment addressed to you was in context of my previous comment above it, where I was arguing that I would prefer prosecution of the leak, not the press. I realize that was not clear. I agree that this is not a case where there should be an attempt to legally pursue the press.

I agree with your supposition that the program is not 100% effective. I think you’d agree with me that even if it is only 1% effective, revealing as few details as possible is desirable — assuming the legislative branch has some oversight as a powers check. We’ll likely find out more about any oversight that was in place in the coming weeks.

What is your position on legally pursuing the leak itself?
 
Written By: Scout
URL: http://
Glasnost:
IThe Foreign Intelligence Surveillance Act specifically prohibits monitoring the phone calls of US citizens by any executive agency only a warrant is first issued by the Foreign Intelligence Surveillance Court. This law has never been found unconstitutional by a court, and like every other law that is not found unconstitutional, is in effect, period. It has been reported and admitted that the creators of the NSA program are not seeking warrants from this court before wiretapping US citizens. Thus, the program is illegal. Don’t thank me for catching you up on the last 3 years of news or anything.
Don’t worry, I won’t. By repeating someone else’s talking points on a law you’ve never even read, you haven’t caught anybody up on anything, so there’s nothing to thank you for. For purposes of FISA, 50 U.S.C. 1801(f) defines "electronic surveillance" to include all of the following:


  1. the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;


  2. the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

  3. the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or


  4. the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.



The first definition is a nonstarter. The targets of the international wiretaps were known or suspected terrorists abroad, not U.S. citizens or nationals in the U.S., and besides, even the person who is in the U.S. has no reasonable expectation of privacy while placing or receiving a call to or from a police state. The second definition would apply if NSA was tapped lines inside the U.S., but would not apply if they tapped lines just outside the U.S., which I presume they were sensible enough to do. The third definition misses by a country mile, as either the sender or the intended recipients were outside the U.S. and, as noted above, had no reasonable expectation of privacy. The fourth is completely irrelevant, as it relates to non-wire communications inside the U.S., but FWIW, once again requires a reasonable expectation of privacy that was never there to begin with.

Thus, unless you can show that NSA was dumb enough to tap lines inside the U.S. rather than tapping non-U.S. lines about to feed into the U.S., there was no "electronic surveillance" for purposes of FISA, and FISA does not apply here. If they did tap domestic rather than foreign lines, there was indeed an "electronic surveillance" per def’n 2, but the analysis does not end there, unless you think FISA trumps the constitutional executive powers under a declaration of war.

D. Mason:
A war, might I add, that was created out of whole cloth, by [President Bush].
Actually, wars in this country are declared by Congress, not the President, but thank you for playing.
 
Written By: Xrlq
URL: http://xrlq.com/

 
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