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The Free Press and the State
Posted by: Jon Henke on Tuesday, June 27, 2006

Glenn Greenwald makes a generally compelling but incomplete — about which, more in a moment — case for a hands-off approach to media disclosure of classified information. His three primary points are...
(1) There is not a single sentence in the Times banking report that could even arguably "help the terrorists." [...] "Terrorists already knew that we were attempting to eavesdrop on their telephone calls because the Bush administration repeatedly talked about our surveillance programs. And, for the same reason, terrorists already knew that we were monitoring banking transactions — including specifically those effectuated through SWIFT."

(2) The reason there is "no evidence of abuse" is precisely because the administration exercises these powers in total secrecy. [...] "The reason why it is dangerous to allow the Government to act in secrecy — to troll at will through our financial transactions and listen in on our telephone conversations — is precisely because there is no way to learn of abuses. To assert, as Barone has, that abuse is "only theoretical" is to illustrate why oversight is needed, not to demonstrate that it is unnecessary. The defining ethos of our country is a distrust of government power — or at least it always used to be."

(3) The Founders unequivocally opted for excess disclosures by the media over excess government secrecy and restraints on the press. [...] "A free press, publishing government secrets, has been the enemy of governments wherever a free press existed. It is supposed to be that way. The reason the Founders guaranteed a free press is to ensure that there would be an adversary of the Government, an entity which uncovers and discloses government conduct which political leaders want to conceal. As a result, it was hardly unforeseen by the Founders that the Government would be hostile and resentful of the press. Hostility and adversarial struggles were supposed to be an intrinsic attribute of the government-press relationship. ... The Constitution resolves that conflict in favor of the press in the First Amendment to the Constitution by making the prohibition on anti-press government restraints absolute and unambiguous."
For those of you allergic to the shrieking, Poliblogger Steven Taylor makes essentially the same argument in far more measured terms, while acknowledging that "there is legitimate room for thoughtful disagreement on the topic". Unfortunately, rhetoric like "lynch mob", casual dismissals of the possibility of reasonable counterargument, and armchair psychoanalysis that assigns rationales and labels like "hysterical, deranged, hateful lynch mobs" to dissenters may be good red meat for his audience, but it does no credit to him, or, ultimately, the worthwhile cause for which he is arguing. Whittaker Chambers once observed something similar from Ayn Rand, for whom "disagreement can never be merely honest, prudent, or just humanly fallible. Dissent from revelation so final (because, the author would say, so reasonable) can only be willfully wicked."

Still, that rhetoric aside, I find the intellectual points of his argument compelling...but still incomplete. Incomplete, because, while I am predisposed to the view that government interference with the press would be a very bad thing, I also believe that there are legitimate national security secrets and that a State has a legitimate interest in keeping them secret. I believe that, with regards to those legitimate national security secrets, we have a compelling interest in preventing leaks, or, failing that, finding and prosecuting leakers. And I find the notion that a journalist has a confidentiality shield far beyond even that which Doctors or Lawyers have — one that shields them from disclosing details about a crime to which they were a witness or participant — absurd.

My question is: is there any legal line, any classified information at all, that the press could/should be prevented from, or held legally accountable for, disclosing? And if so, how and where do we draw that line? Critics on both sides of the debate seem to be sure that the other side is wrong, but it's far from clear to me that either side is guided by any consistent, applicable principle beyond "the other guys are idiots".
 
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It seems to me that we should not be questioning the right of the press to publish whatever information it has at its disposal. FWIW, I am of the opinion that the NYT had full right to publish all the details it did regardless of my own distaste for their doing so; it is their job, after all.

My ire is raised toward those in the government who, despite being sworn to secrecy, breached their oaths and trust to reveal the relevant details. The onus and focus of public anger should be on them.
 
Written By: D
URL: http://
The NY Times et. al. had every right to print the story once it was dropped in their laps, and there was little other than plead with them to not publish the information the Administration, legally, could do about stopping the information’s release.

Once it was published, however, all bets were off. There is nothing in the Constitution that screens the NY Times, or any other member of the professional media, from the same prosecution any other citizen would face for violating any federal, state or criminal law. The exemption they and their defenders believe "the press" possesses via the free speech clause in the First Amendment just does not exist, period, and there’s plenty of case law backing that basic fact.
 
Written By: TC
URL: http://
Well I will state what a Supreme Court Justice said, supposedly, in the "Pentagon Papers Case", words to the effect, "IF I thought that this revelation would cost the lives of soldiers I would oppose it." That’s the REAL line, IMO. The Pentagon Papers were embarassing, but not threatening, in any real sense. They added to the public’s stock of knowldege in re: the US’ then involvment in Vietnam. They didn’t touch on sources and methods and they revealed nothing about US plans for the theatre. The NYT could publish them...why shouldn’t I know WHY my government found it necessary to fight the war in SE Asia?

Revealing programs that ARE legal, and have been briefed to Congress that relate to the on-going collection of intelligence on US enemies crosses that line.

For me, find the leakers, and IF that means the reporters, and Bill Keller and "Pinch" Sulzberger spend exteneded amounts of time in jail on Federal Contempt Charges, too bad. Somewhere D.C. has forgotten that we are at war...

The US and Britain, the US Armed Services disagreed with one another over the course and conduct of the war. They fought like cats and dogs... Ernest J King DESPISED the British and made few attempts to hide it. My point and I DO ahve one, was that though they disagreed, vehemently, their disagreements did NOT end up on the front page(s) of the NYT or LAT!

We NEVER saw someone, some anonymous source leaking the D-Day invasion plans to the Press, along with disaparaging remarks about the plans efficacy. The goal of which was to bring the plan into dis-repute and by revealing it, KILL IT! Churchill FEARED the Cross-Channel Invasion, he was terrified of the potential cost of the invasion and then the subsequent cost of the campaign to Germany. His fears were valid, but BUT he and his minions NEVER leaked the details of Overlord to the Financial Times or the NYT. It just seems people in D.C. are acting AS IF it’s just "business as usual."
 
Written By: Joe
URL: http://
I agree with both TC and Joe on this one. The leakers should be found and prosecuted to the fullest extent of the law. If that takes reporters, editors and or owners of news outlets spending time cooling their heels on contempt charges, so be it.

Then, if in the course of the fact finding and or trial(s) in becomes clear that the national interest was at jeopardy and that any reasonable person could perceive this then the news outlets should be tried as well. They too, are not above the law.
 
Written By: DCB
URL: http://
The NY Times et. al. had every right to print the story once it was dropped in their laps, and there was little other than plead with them to not publish the information the Administration, legally, could do about stopping the information’s release.
I think it is the statement which says the Times "had every right to print the story once it was dropped in their lap" with which many of us disagree.

While freedom of the press is believed to be a fundamental Constitutional right, it isn’t an absolute right. IOW, just as the right to free speech doesn’t include incitements to violence, it could be argued that freedom of the press doesn’t include publishing things which are slanderous or libelous.

I think the same argument could be made concerning national secrets based in a legal intelligence program. And especially when it is deliberately and willfully published after it is explained what the downside is for the intelligence gathering effort underway.

BTW, I also agree that the leakers should be found and prosecuted.

 
Written By: McQ
URL: http://www.qando.net/blog
My ire is raised toward those in the government who, despite being sworn to secrecy, breached their oaths and trust

I’d say the onus is on those who insist on unecessarily pushing constitutional/legal limits. Common sense says there’d be far fewer leaks if the administration hadn’t purposely steered into the twilight zone just to settle a Nixonian grudge over executive power.
 
Written By: Andy Vance
URL: http://
Good post, Jon. A complicated issue, indeed.

But speaking of red meat, does anyone else smell fish?

Points have been made about the actual harm done to National Security when it’s seemingly clear that AQ already reckons that we are monitoring financial transactions. Hell, when we first heard of this, my wife turned to me and said, “Duh”. Wouldn’t it be criminal if the government wasn’t monitoring transactions to foreign persons and entities, especially if it was a substantial transaction?
But when there seems to be an attack, in concert, on the NYT specifically, isn’t it plausible that – with fear of ridicule from the likes of Joe, shark, and others – attacking the NYT is a great way to get the base all riled up?

Okay, I’ll say it…
A Rovian political scheme.

Now put that in your pipe and smoke it.

Cheers.


 
Written By: PogueMahone
URL: http://
Oh, and one more thing. If there is a terrorist attack in the US soon, I’m sure that there will be Right index fingers pointing at the NYT.
 
Written By: PogueMahone
URL: http://
A Rovian political scheme.
Oh man ... another victim of the conspiracy theory fever swamps?

Say it ain’t so, Pogue [not that I’ll believe your denial]!
 
Written By: McQ
URL: http://www.qando.net/blog
Points have been made about the actual harm done to National Security when it’s seemingly clear that AQ already reckons that we are monitoring financial transactions.
Sure.

And terrorists in Iraq already reckon that we are trying to kill them.

That doesn’t mean that I can release the details of the next military operation in the Iraqi theater, now does it?
 
Written By: Mark A. Flacy
URL: http://
Terrorists already knew that we were attempting to eavesdrop on their telephone calls because the Bush administration repeatedly talked about our surveillance programs. And, for the same reason, terrorists already knew that we were monitoring banking transactions — including specifically those effectuated through SWIFT

That cannot possibly be true, since we already know that the SWIFT program was used to capture Hambali.

But, hey, to follow Joe’s example, using Greenwald’s logic, it would have been A-OK for the Times to publish, say, the D-Day plans on June 5, 1944. After all, the Germans surely already we knew we would attack them!

Why anyone would pay attention to such an addle-minded person as Greenwald is beyond me.
 
Written By: A.S.
URL: http://
Say it ain’t so, Pogue [not that I’ll believe your denial]!
Hah!. Just hittin’ the cups early, ma’ brutha’.
 
Written By: PogueMahone
URL: http://
Good post Jon. As I mentioned in the chatroom, Greenwalds post shows him at both his best, and worst. He makes a good logical argument that this isnt such a big deal as people are making it. But he has to preface that with his raving "New and Improved Grand Unified Theory of Bush Cultism"(tm) I’m no expert on the details of this thing, but I read this. And it seems to put some doubt on Greenwalds assertions that the NY Time didnt actually reveal any details of importance. Again, I dont know a lot about this story, but a kind of factual, argument/counter-argument is something the blogosphere sure could use a lot more of.
 
Written By: ChrisB
URL: http://
But, hey, to follow Joe’s example, using Greenwald’s logic, it would have been A-OK for the Times to publish, say, the D-Day plans on June 5, 1944. After all, the Germans surely already we knew we would attack them!
Oh, man. Give it a rest, will ya’?

D-Day, Enigma, etc…
If this was in any way comparable, there would be no debate about it. The editors at the NYT would have a long drop with a short rope right in the middle of Times Square.

Besides, the Germans thought we would attack at Calais. And we used the press to misinform German Intelligence.

Could this be the same???

(hittin’ the cups early)
 
Written By: PogueMahone
URL: http://
My question is: is there any legal line, any classified information at all, that the press could/should be prevented from, or held legally accountable for, disclosing? And if so, how and where do we draw that line?
A good post and a difficult question. I’m still reluctantly siding with the press on this particular issue, but I could jump sides with more information. I do recognize that there is a point at which I would not side with them.

Is there currently a line? Has the U.S. ever prosecuted the press over an issue like this? I don’t mean for not revealing sources, I’m all for prosecuting that, I mean prosecuting them for printing a story.

Also, how would such a prosecution proceed? I would imagine that an administration would need heaps of popular support to prosecute the press, considering the PR the press as an industry would put out. If true, I don’t know if Bush could pull it off. Who could? Reagan? Clinton if he "triangulated" enough?
 
Written By: Scout
URL: http://
If the administration tried to prosecute the NY Times for publishing this information two things would happen:

1. Every single newspaper in the country would be up in arms shrieking about freedom of the press, the first amendment, and constitutional rights, up to and including the WSJ editorial page; and they would be right to do so. If you thought the complaining was loud about Fitzgerald throwing Judith Miller in the klink, you haven’t seen nuthin’ yet.

2. To paraphrase Tom Cruise from A Few Good Men: the administration would lose, and it would lose huge. They might (might) be able to find a federal district court judge that would allow the prosecution to proceed, but I doubt they could get a single circuit to agree, and if it reached the Supreme Court, I would be extremely surprised if they got more than one justice (Thomas) to go along with them. If you can’t ban virtual child pornography, try prosecuting journalists for publishing truthful information that the public has an interest in knowing (not the same as in the "public’s interest.")

Whether the administration hasn’t proceeded on this course because of 1. or 2., I don’t know, likely both.

As for Jon’s questions:
My question is: is there any legal line, any classified information at all, that the press could/should be prevented from, or held legally accountable for, disclosing? And if so, how and where do we draw that line?
As to the first, I would say "no." I think the general procedure under which the Justice Department and the press have, however informally in some instances, operated under for quite some time now works just fine. Justice has rules that only allow going after a reporter (and then just for his/her sources) as a last resort (and possibly other conditions), and the press (usually, at least these days, it seems) consults with the administration before publishing sensitive material. The NY Times withheld the NSA spying story for over a year at the request of the administration; it withheld the bank story for several months. Ultimately, it was unconvinced of the administration’s arguments. This informal procedure would, and I think has, prevent the publication, to use an example from the comments, on June 5th, 1944 of "Allies to Invade Europe Tomorrow at Normandy."

I would say that it is likely obvious that the terrorists would be concerned that we are monitoring their communications, bank transmissions, internet searches, etc., whether or not the NY Times publishes the information (or in the case of the SWIFT monitoring, the UN does in 2002). This would, of course, cause them to be circumspect in their use of such forms of communication, financial transfers, etc. But to accomplish their goals, they sometimes have to take risks, and that means communicating via cell phone and email; or making bank transfers, despite the fact that we’re monitoring those communications (or they suspect that we’re monitoring them). To a certain extent they can hide in plain sight, relying on the sheer volume of traffic to keep them anonymous. But ultimately, some of them will be caught; a risk they’re willing to take to further their ends.
 
Written By: Ugh
URL: http://
It’s about "prior restraint" McQ. The Feds (or any section of gov’t) would get slapped down dead by the judiciary if they shuttered a newspaper or TV station to prevent them from publishing a story the government wanted kept under the covers. Scalia himself would throw them in the stockade.

Slander and libel laws are precisely there for redress if some media outlet prints false or defamatory statements—and this is the out the media always plays—with the express intent to malign the person or persons involved. Unless the target can prove it was done with "malice aforethought," nine times out of ten they get a pass.

The government has rarely gone after the institutional press in the past because the press had performed responsibly; they weren’t blatantly picking sides (by that I mean "obviously" because Duranty’s reporting back in the day shows picking sides is old hat at the Times, but then they controlled what Americans knew).
 
Written By: TC
URL: http://
Jon:

Not every viewpoint is worthy of respectful debate. Do you engage in restrained, patient, respectful debates with holocaust deniers, or apologists of Stalin, or followers of Fred Phelps?

Relatedly, though independently, writing about political issues can have legitimate and constructive purposes other than trying to engage one’s opponents in measured discoure in order to persuade them to change their minds. Some people, for all sorts of reasons, are beyond reasoned persuasion. Moreover, one may want to write about a political issue with the intent of sounding an alarm, or moving to people to action. You can try to condescendingly dismiss it as "red meat" if you want, but if one believes that the country faces genuine political crises, it is hardly unreasonable to write with the intent to spur people to recognition and action. A different argumentative tone is appropriate for that objective.

Always sitting back calmly and mildly indulging academic debates on political issues is not the only form of legitimate political discussion, nor — as practitioners of that method often patronizingly assume — is it always the superior form. Sometimes, what appears to be moderate discourse is simply a failure or inability to recognize radical dangers or pure malice.

There are scores of controversial issues about which I am ambivalent and on which I believe there is room for reasonable debate. But in my view, there is no reasonable debate possible about whether we ought to imprison journalists for publishing articles disclosing legitimately controversial government actions.

That debate was resolved long ago by the First Amendment. There are all sorts of countries - China, Cuba, Syria - which do imprison journalists based on articles they publish about the government. For the reasons I outlined in my post, we simply don’t imprison journalists in America for articles they publish provided they raise any colorable issue of public concern. Those who want to begin doing that are doing nothing less than waging war on the most basic constitutional principles of our country. Why should that viewpoint be accorded respect and, therefore, legitimacy?

I’m no more interested in debating whether we should start locking up journalists than I am interested in debating whether we should re-institute slavery, execute homosexuals, or criminalize Christianity. Would you debate the latter proposals in a calm and respectful tone?

I don’t deny that my post contained rhetoric that would likely ward off those who are chomping at the bit to imprison journalists, but I also don’t think it can be denied (and, indeed, you acknowledge) that my post builds the case I make using reason, logic and well-documented factual assertions. The same cannot be said for the name-calling, insult-spewing, truly bloodthirsty people who are not - as you imply - calmly suggesting that we merely examine the possibility of drawing new journalistic lines, but instead, are screaming at the top of their lungs that Bill Keller and James Risen are friends of the Terrorists, sickening traitors, and criminals deserving of life-long imprisonment. Check out the latest Powerline or Michelle Malkin postings — or just about anything linked to on this topic by the oh-so-moderate, non-extremist Instapundit — if you have any questions about what I mean. And yet I don’t see any posts from you taking them to task for their argumentative tone. Why is that?

Do you actually think such people can be or deserve to be reasoned with? And if "lynch mob" isn’t an accurate and fair term for this behavior, what would you call it?
 
Written By: Glenn Greenwald
URL: http://glenngreenwald.blogspot.com
Oh, man. Give it a rest, will ya’?

D-Day, Enigma, etc…
If this was in any way comparable, there would be no debate about it. The editors at the NYT would have a long drop with a short rope right in the middle of Times Square.

Besides, the Germans thought we would attack at Calais. And we used the press to misinform German Intelligence.

Could this be the same???


It’s funny - you assert that the situations are different in some way, but then fail to identify any way in which they actually are different. Let me make it easier for ya - both situations (the actual Times publication of the SWIFT program and the theoretical publication of D-Day plans) are situations in which a national security purpose for secrecy is asserted and which the enemy has good cause to suspect the general nature of the program. So, could you clairify your objection? Or is your objections essentialy "they are different because... because... just because!"
 
Written By: A.S.
URL: http://
Well Jon, I havne’t been reticent in criticizing Greenwald’s hyperbolic and shrill tone at times, but really, in light of Malkin’s doing this,
I don’t find his speaking of "hysterical, deranged, hateful lynch mobs" as much over the top, if at all.

To continue with Whittaker Chambers on the subject of Ayn Rand:
From almost any page of Atlas Shrugged, a voice can be heard, from painful necessity, commanding: "To a gas chamber - go!" [...] In the end that tone dominates.
Surely Malkin is so demonizing the NYT and the ACLU with those propaganda posters — and all the calls to imprison journalists coming from various sources including some to whom Grenwald links — surely all this falls only a tad short of the kind of rhetoric that would suggest some jounralists belong in gas chambers. One cannot have a reasoned debate with the sort of thing Malkin posted, to which Greenwald linked in the context of his most hyperbolic language.
 
Written By: Mona
URL: http://
Do you actually think such people can be or deserve to be reasoned with? And if "lynch mob" isn’t an accurate and fair term for this behavior, what would you call it?

Except, Glenn ole’ boy NO ONE HAS BEEN LYNCHED! See there IS a difference between rhetoric and action...just thought I’d point out that the NYT and LAT staff can sleep safely in their beds tonight, because the "mob howling for their blood" is only doing so in a metaphorical sense.
 
Written By: Joe
URL: http://
Methinks that Mr. Greenwald throwing red meat to the mob on his site and then presenting a reasonable side here is a not good thing.
 
Written By: Robert Fulton
URL: http://
I’d say the onus is on those who insist on unecessarily pushing constitutional/legal limits. Common sense says there’d be far fewer leaks if the administration hadn’t purposely steered into the twilight zone just to settle a Nixonian grudge over executive power.

Really Andy, and what programs has Congress NOT been informed of? Oh and fewer leaks, REALLY so you’re just coming to the watching of the D.C. scene where "leaking" is considered a fine art? Administrations leak, I’m sure Jimmy Carter had’em...my point is and was that there is a difference between leaking in 2000 and today, ESPECIALLY about on-going intelligence programs that the Senate and House knew of!
Finally, when did "Executive Power" become a dirty word, or do you think a committee of 535 Congresspersons can manage a war? The PRESIDENT is Commander-in-Chief and has certain powers granted him by the US Constitution! So Executive Power is not evil, but a requirement for proscecution of a war, or at least the Founders thought so. Congress has some oversight and veto powers, so to speak, but the President is in charge of military, diplomacy, and National Security Affairs.
 
Written By: Joe
URL: http://
Glenn,

This raises the question of who you’re trying to convince, however (if anyone). I assume you do not consider your site strictly a place to distribute red meat for the base (and I apologize that I cannot check it myself, but my current circumstances prevent me from visiting Blogspot sites), but rather a place for rational discourse intended to persuade others to your way of thinking.

Assuming that to be the case, comments like ’lynch mob’ are, by their nature, so inflammatory that they will turn many people off regardless of the logic of your argument, even people who might otherwise be willing to change their mind. In being willing to write off those who are not willing to be convinced, you may inadvertently also write off others who see your rhetoric and choose to go elsewhere. I think Jon’s post points to this. He concedes your points, but it appears he was at least somewhat put off by your choice of words.
 
Written By: Andrew Olmsted
URL: http://andrewolmsted.com
Except, Glenn ole’ boy NO ONE HAS BEEN LYNCHED! See there IS a difference between rhetoric and action...just thought I’d point out that the NYT and LAT staff can sleep safely in their beds tonight, because the "mob howling for their blood" is only doing so in a metaphorical sense.
If you were Jim Risen, and watched virtually everyone in the party of power — from the President, Attorney General, and top Senators and Congressmen on down, to political pundits and opinion makers — openly speculating about criminal prosecutions against you — while many of them called you a traitor and accused you of committing treason in a time of war, including on national television networks and in leading political journals — would you be "sleep(ing) safely in (your) bed tonight?" I don’t think you would be.

I also think these threats would have a very significant effect on your thought process the next time you went to publish a story that the Bush administration directed you not to publish. That probably wouldn’t be very good for your sleeping patterns either, let alone for free press rights in our country.

A lynch mob is a group that is gathering and seeking to lynch someone. A lynch mob is formed prior to the lynching itself. If a group which gathers together and starts publicly and hatefully calling someone a "sickening traitor" and demanding their life-long imprisonment — complete with propaganda posters and the like — doesn’t qualify as a pre-lynching "lynch mob," what would?
 
Written By: Glenn Greenwald
URL: http://glenngreenwald.blogspot.com
Really Andy, and what programs has Congress NOT been informed of?
Isn’t that really the whole question? We don’t know what Congress has not been informed of, because the Bush administration appears to view Congress as an impediment to its war strategy rather than a partner.
 
Written By: Andrew Olmsted
URL: http://andrewolmsted.com
A lynch mob is a group that is gathering and seeking to lynch someone. A lynch mob is formed prior to the lynching itself. If a group which gathers together and starts publicly and hatefully calling someone a "sickening traitor" and demanding their life-long imprisonment — complete with propaganda posters and the like — doesn’t qualify as a pre-lynching "lynch mob," what would?
Er...has anyone actually endorsed dragging Bill Keller from his home and stringing him up from the nearest tree? Yes, there have been some noises about criminal prosecution, but the odds of a successful prosecution are rather remote even if the government actually decides to pursue one. Furthermore, criminal prosecution is virtually the antithesis of a lynch mob, which exists to take justice into its own hands rather than allow a court of law to adjudicate.

There are many rhetorical excesses coming from the right on this matter. I fail to see how rhetorical excess from the left will help matters.
 
Written By: Andrew Olmsted
URL: http://andrewolmsted.com
It’s about "prior restraint" McQ. The Feds (or any section of gov’t) would get slapped down dead by the judiciary if they shuttered a newspaper or TV station to prevent them from publishing a story the government wanted kept under the covers.
I’m not arguing prior restraint, TC. I’m arguing responsible journalism. With rights come responsibilities, and I’m arguing that it isn’t clear to me yet that the Times properly exersised their responsibility in the matter as it pertains to national security. And yes I’m suggesting they do have a reasonable responsibility to help keep secrets in which it would not be in the public’s best interest to have divulged.
Slander and libel laws are precisely there for redress if some media outlet prints false or defamatory statements—and this is the out the media always plays—with the express intent to malign the person or persons involved. Unless the target can prove it was done with "malice aforethought," nine times out of ten they get a pass.
Laws which protect national secrets also exist, TC. and for the same obvious reasons that slander and libel laws exist.
Also, how would such a prosecution proceed? I would imagine that an administration would need heaps of popular support to prosecute the press, considering the PR the press as an industry would put out. If true, I don’t know if Bush could pull it off. Who could? Reagan? Clinton if he "triangulated" enough?
I have no idea ... I would assume under the ageis of the National Security Act or some such law.

As for "pulling it off" I’d only note that your requirement of someone who’s a PR genius to do so shows little faith in the legal system to handle such a case without being unduly influenced.
 
Written By: McQ
URL: http://www.qando.net/blog
Well Jon, I havne’t been reticent in criticizing Greenwald’s hyperbolic and shrill tone at times, but really, in light of Malkin’s doing this, I don’t find his speaking of "hysterical, deranged, hateful lynch mobs" as much over the top, if at all.
Ah, I see, Mona ... so since Malkin is doing it, it’s ok if Glenn does it, is that it?

Come on, you’re a grandmother ... would you let your grandkids get away with such an excuse? I sure wouldn’t accept that from mine.

Perhaps it’s because some expect better from Greenwald than the hyperbole.

Lynch mob? Please. It’s fine to feel strongly about something and even state your argument in strong terms. But "hysterical, deranged, hateful lynch mobs" simply caused me to immediately tune out. That isn’t reasoned argument ... that’s a rant. And they’re a dime a dozen on blogs as you well know (as do I since I pay my dime regularly and write a few here and there. But when I do I know I’m going to turn off a good percentage of the people who begin to read it and never get my message across to them).

I never read past Greenwald’s title. Why would I? What reasoned argument would lie below something entitled "The Bush lynch mob against the nation’s free press"? I’d just as soon read DU where those sorts of titles are common (and so are the rants).
 
Written By: McQ
URL: http://www.qando.net/blog
As for "pulling it off" I’d only note that your requirement of someone who’s a PR genius to do so shows little faith in the legal system to handle such a case without being unduly influenced.
Heh. Well, I admit that I was of the mind that such a prosecution would take place in the Senate, which I do think could be influenced, rather than the courts. But as I said I don’t know how such a thing proceeds.
 
Written By: Scout
URL: http://
McQ writes:
Ah, I see, Mona ... so since Malkin is doing it, it’s ok if Glenn does it, is that it?
That would be fine retort if it had been my (very poor) argument. However, my point is that given what Malkin posted — which inspires a visceral reaction and hatred of the NYT, the ACLU and journalists, depicting them as traitors who kill citizens and soldiers — it is not far from inaccurate to characterize her tactics as those employed by "hysterical, deranged, hateful lynch mobs."

 
Written By: Mona
URL: http://
If a group which gathers together and starts publicly and hatefully calling someone a "sickening traitor" and demanding their life-long imprisonment — complete with propaganda posters and the like — doesn’t qualify as a pre-lynching "lynch mob," what would?
Well, if you put it that way, everyone hoping for a Fitzmas present—waiting for Dark Sith Karl to be frogmarched to prison; gleefully hoping he’d be made some prison con’s "Maytag"—would obviously qualify, Double G, acording to your description.

What you described is a just a mass of angry gas. It’s when they decide, "let’s go get him and kill him," that the rhetoric switches to call to vigilante action. Then, you’re looking at a "lynch mob." There’s certainly no "pre-lynching" if the crowd is howling for the person to be thrown behind jailhose bars.

McQ:
Laws which protect national secrets also exist, TC. and for the same obvious reasons that slander and libel laws exist.
Agreed, but they relate almost exlusively to the leakers, not the media outlet who publishes the leaked material. As with a slander or libel prosecution, the defense—in this case the Feds—would have to prove malicious intent.

It would be a bear of a case to make with Keller & Co. sitting there reciting their near-bullet proof defense: "the people’s right to know" when they are accused of acting "irresponsibly."

I’ve worked in and around "journalism" and I have to tell you, the whole idea that there is a standard for what constitutes "responsible" is a tenuous, at best. When "If it bleeds, it leads," is your driving edict, anything goes.
 
Written By: TC
URL: http://
Ah, I see, Mona ... so since Malkin is doing it, it’s ok if Glenn does it, is that it?
The point is not that it’s permissible for one side to engage in hyperbole because the other side did first. The point is that many people do act in a way that puts them beyond reasoned dialogue, while others act in a way that renders "lynch mob" an accurate descriptive term, rather than hyperbole.

Refusing to call a crowd of people a "lynch mob" when they are screaming "TRAITOR!," compiling hateful propaganda signs, and calling for life-long imprisonment of journalists is not the hallmark of someone who engages in reasoned debate, but rather, is the hallmark of someone who refuses to describe, or is unable to recognize, dangerous extremism when they see it.

Reasoned, measured respect in the face of that behavior is, in my view, a moral failure, not a sign of elevated discourse.
That isn’t reasoned argument ... that’s a rant. And they’re a dime a dozen on blogs as you well know (as do I since I pay my dime regularly and write a few here and there. But when I do I know I’m going to turn off a good percentage of the people who begin to read it and never get my message across to them
As I said to Jon, and as you just implicitly recognized, there are many different types of objectives one might have when writing a blog post. Some posts might be devoted to persuading others to change their views. Some are devoted to galvanizing people who are already persuaded, or to encourage them to recognize the severity of the problem. For everyone who blogs, some posts are probably simply for the purpose of venting or ranting. None can be said to be the only legitimate type of blog post. Each has its value.

And, as I explained, moderate, reasoned discourse is simply inappropriate for some issues and/or with some groups of people. I don’t think that people who advocate throwing journalists in prison for publishing articles about controversial government programs are people who can be reasoned with. Since you are one such person (from what I can tell), it’s unsurprising that you’d disagree.
I never read past Greenwald’s title. Why would I? What reasoned argument would lie below something entitled "The Bush lynch mob against the nation’s free press"? I’d just as soon read DU where those sorts of titles are common (and so are the rants).
I went back and looked at your last few posts to see how I could accommodate this criticism and improve the titles of my blog posts. I found this:
Why the Democrats can’t be trusted with national security: Part 46,352
I’m sure that post title of yours opened all kinds of minds and led people everywhere who didn’t already agree with you to perk up and listen very attentively to everything you had to say on the topic.
 
Written By: Glenn Greenwald
URL: http://glenngreenwald.blogspot.com
And, GG, you cannot question me on this, for I have absolute moral authority....

My last name is Lynch.
 
Written By: TC
URL: http://
in light of Malkin’s doing this,
I’m sure that post title of yours opened all kinds of minds and led people everywhere who didn’t already agree with you to perk up and listen very attentively to everything you had to say on the topic.
I think QandO’s tu quoque-meter just pegged.
 
Written By: Andrew Olmsted
URL: http://andrewolmsted.com
I do try to avoid the shreiking.

However, I sometimes wonder if my traffic wouldn’t be higher if I engaged in more of it...
 
Written By: Steven Taylor
URL: http://poliblogger.com
That would be fine retort if it had been my (very poor) argument. However, my point is that given what Malkin posted — which inspires a visceral reaction and hatred of the NYT, the ACLU and journalists, depicting them as traitors who kill citizens and soldiers — it is not far from inaccurate to characterize her tactics as those employed by "hysterical, deranged, hateful lynch mobs."
It is lightyears from such a characterization, Mona.

 
Written By: McQ
URL: http://www.qando.net/blog
Andrew Olmsted observes:
I think QandO’s tu quoque-meter just pegged.
Well, yes, Except as has been clear in many of Greenwald’s posts, and as is obvious from what he is arguing here, he does not perceive it solely as his role to engaged in scholarly, sedate discourse as if in the rarified atmosphere of the academy. He is a polemicist, an agitator, a caller-to-arms against what he regards as a serious threat to a core liberty(s) (most recently a free press.) Discussing that subject in tones befitting a law review journal is not the style he has has chosen, and he conscioulsy writes off certain sectors as being beyond persuasion. (Tho when he is purely parsing law, as he did in the matter of the meaning of FISA and the case law that means it binds the Executive, he can and does adopt a semi-scholarly MO.)

McQ is critical of hyperbole and headlines containing it, which McQ says he won’t read past. That’s fine, if he also doesn’t care whether anyone who might not think ill of all Democrats vis-a-vis national security reads his posts. But I had not perceived that McQ regards his blogging as serving the same purpose that Greenwald largely sees his serving, yet there was that hyperbolic headline of McQ’s that would be off-putting to huge swathes of readers.
 
Written By: Mona
URL: http://
Y’all remember when Henry Waxman - you know, the Ranking Member on the Government Reform Committee - accused Karl Rove of treason last year?

I’m sure that Glenn Greenwald posted about how Waxman was leading a "lynch mob"... after all, if he didn’t, that would be "the hallmark of someone who refuses to describe, or is unable to recognize, dangerous extremism when they see it". I’m just having a little trouble locating the post on Greenwald’s blog. Can anyone point me to that post? It’s got to be there, right?
 
Written By: A.S.
URL: http://
I went back and looked at your last few posts to see how I could accommodate this criticism and improve the titles of my blog posts. I found this:

Why the Democrats can’t be trusted with national security: Part 46,352

I’m sure that post title of yours opened all kinds of minds and led people everywhere who didn’t already agree with you to perk up and listen very attentively to everything you had to say on the topic.
Yeah, that’s eminently comparable to ""The Bush lynch mob against the nation’s free press", isn’t it?

Yeesh.
 
Written By: McQ
URL: http://www.qando.net/blog
McQ is critical of hyperbole and headlines containing it, which McQ says he won’t read past. That’s fine, if he also doesn’t care whether anyone who might not think ill of all Democrats vis-a-vis national security reads his posts.
Uh, yeah, Mona, which I plainly stated in my reply, which I assume you read, where speaking of rants I said:
(as do I since I pay my dime regularly and write a few here and there. But when I do I know I’m going to turn off a good percentage of the people who begin to read it and never get my message across to them).
I take it, given your reply, you agree?
 
Written By: McQ
URL: http://www.qando.net/blog
A.S. writes:
I’m just having a little trouble locating the post on Greenwald’s blog. Can anyone point me to that post? It’s got to be there, right?
And I’m wondering if you really looked. Greenwald hadn’t started blogging in July of 2005.
 
Written By: Mona
URL: http://
I’m heading to bed, so I regret that I can’t respond more fully tonight, but I want to do so in the morning. In the meantime, a couple comments...
Not every viewpoint is worthy of respectful debate. Do you engage in restrained, patient, respectful debates with holocaust deniers, or apologists of Stalin, or followers of Fred Phelps?
The difference between holocaust denial and questioning the legal ramifications of a leak of classified information related to national security are vast. Differences not of degree, but of nature. Surely you don’t think that reasonable people cannot disagree on the legal ramifications of the disclosure of classified information?

And if you don’t agree with that, then when does, e.g., Kevin Drum get compared to "apologists of Stalin"? He’s argued that it’s true that "exposing these programs is bad because terrorists will stop using telephones and international credit transfers" and that it’s a net benefit to keep these programs secret. Surely, the notion that the NYTimes disclosed classified information and that disclosing classified information is bad and/or illegal is not restricted to the Right and equivalent to Fred Phelps?

You’re a tremendously smart fellow, with whom I tend to agree more often than not — on substance, if not on rhetoric — but it seems to me that you’re building tendentious characterizations that gin up righteous anger among the choir, but obscure the point. I realize that demagoguery, snark and hyperbole are useful tools — I’ve been angered a time or twelve myself — but I think you’ve got better, more persuasive tools in your toolbox. In any event...
But in my view, there is no reasonable debate possible about whether we ought to imprison journalists for publishing articles disclosing legitimately controversial government actions.
...I tend to agree that, in most instances, we should not. But where do you draw the line? Anywhere? The line cannot be at "controversial", because that’s a subjective and ultimately useless line — and, anyway, no illegality was even alleged. And, really, what government activity isn’t, or cannot be, controversial? Is there anything at all the government can legitimately suppress or respond to with legal consequences? If so, what?

Finally: you made a well-deserved blogospheric name for yourself pointing out the fairly plain letter of the law in regards to the NSA case. Why does the letter of the law not apply in this case?

Understand, while I think — for reasons mentioned in the post — the government can legitimately subpoena a journalist in order to discover the criminal who leaked classified information, I’m inclined to agree with you on most of the substantive points here. I just don’t see how there can be no case at all that, at least in some instances, journalists can be subject to rules regarding classification that apply to all of the rest of us.
 
Written By: Jon Henke
URL: http://www.QandO.net
Mona wrote:
However, my point is that given what Malkin posted — which inspires a visceral reaction and hatred of the NYT, the ACLU and journalists, depicting them as traitors who kill citizens and soldiers — it is not far from inaccurate to characterize her tactics as those employed by "hysterical, deranged, hateful lynch mobs."
I do not think it is reasonably disputable that those organizations are fine with more Americans, soldiers and civilians, dying rather than fewer as a result of the Constitution being respected the way they feel it should be. It would be good of you to hourly take note of the degree to which you and your fellow travellers are in a very small minority.

Possibly also on the half hour.

And your protrayal is quite accurate, if Malkin were chasing her "victims" down with hounds and hanging them without trial from trees.

Other than that it’s not far from accurate.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
And I’m wondering if you really looked. Greenwald hadn’t started blogging in July of 2005.

Coincidentally, that’s the same month that Waxman accused Rove of treason! What a perfect topic for Greenwald to begin his blogging career!
 
Written By: A.S.
URL: http://
The major flaw in Greenwald’s arguements lie in this statement from a comment above:

"there is no reasonable debate possible about whether we ought to imprison journalists for publishing articles disclosing legitimately controversial government actions."

I agree with this statement. Journalist who publish articles disclosing LEGITIMATELY CONTROVERSIAL government actions should not be prosecuted.

The ultimate problem that people have with the NYT et al is that the SWIFT program, as described in their articles, wasn’t remotely controversial. This is why this article has caused such a broader and larger outpouring of anger than did their earlier national security damaging article. While I didn’t see much controversy surrounding that secret program, I could see a faintly logical rationale given a ... certain ... mindset. I still thought that the leakers should be found and imprisoned, but I could - barely - understand those who differed.

However, there was no legitimate reason for the NYT article. It was 100% damage to America, 0% benefit. What’s more, they had to have known this before they published (as vividly demonstrated by Keller’s vanishing act and later self-serving and factually deprived statement). Greenwald’s comments therefore don’t apply in this case. Those that leaked it AND those who published it should be prosecuted to the fullest extent of the law.
 
Written By: J T
URL: http://
Coincidentally, that’s the same month that Waxman accused Rove of treason! What a perfect topic for Greenwald to begin his blogging career!
Is it a reading comprehension issue? Greenwald was not blogging in July of 2005. His first posts in 10/05, as I recall, were sort of dull (to non-lawyers), non particularly inflammatory (but timely) analyses of the Scooter Libby indictment. And there was one in that month on the day after Brazil (where he usually lives) upheld in a referendum the right to bear arms. He sure seemed to approve.

Nothing about Waxman was timely in October of ’05, that I recall.
 
Written By: Mona
URL: http://
I see, Mona. Well, it’s never too late in my book to begin condemning Henry Waxman. Let’s see it!
 
Written By: A.S.
URL: http://
Jon writes:
I just don’t see how there can be no case at all that, at least in some instances, journalists can be subject to rules regarding classification that apply to all of the rest of us.
I agree that Greenwald paints in all black and white on the issue per se, where there is some room for color. Let’s say Ted Hall, Julius Rosenberg and the other spies for Stalin that were passing secrets of the Atomic Bomb to Stalin decided just to hand over their purloined data to, oh, The Nation, which published it all. Some on the left, after all, have excused this espionage on the basis that it was not safe for the U.S. to hold a nuclear monopoly, and that world peace was served by what Hall and others did.

So, if The Nation had seen it that way, and had printed all those secrets so Americans could be told what horrible weapons we were amassing, would Greenwald really insist those making that publication decision ought not be prosecuted?

I’m not asking rhetorically, as I’d really like to see if he would flatly preclude all prosecution of journalists for violating the Espionage Act, and I cannot honestly say I see that the issue is as morally clear cut as proposals to execute homosexuals.
 
Written By: Mona
URL: http://
I’ve blogged an historical hypothetical case, which meets the "public interest" standard in detail, yet would have been worthy of a firing squad had anyone published.
 
Written By: Kevin Murphy
URL: http://interocitor.com
"If you were Jim Risen, and watched virtually everyone in the party of power — from the President, Attorney General, and top Senators and Congressmen on down, to political pundits and opinion makers — openly speculating about criminal prosecutions against you — while many of them called you a traitor and accused you of committing treason in a time of war, including on national television networks and in leading political journals — would you be "sleep(ing) safely in (your) bed tonight?" I don’t think you would be.
Written By: Glenn Greenwald"


Not that I don’t believe you, but, would you please provide direct quotes from the President, AG, and the top Senators and Congressmen all of whom are "openly speculating about criminal prosecutions against you — while many of them called you a traitor and accused you of committing treason in a time of war".
Note, I am not asking for quotes from pundits and opinion makers, just the politicians.
Like I say, its not that I don’t believe you, but the complaints I’ve been seeing is that these top politicos are not speaking out enough (except for Rep. King).
 
Written By: Anonymous
URL: http://
The NYT decides to publish a story exposing a “legal” classified intel program, that achieves the cooperation and monitoring that the NYT editorial stated was required and they themselves in their editorial called for…………….

The NYT did the right thing early on by holding the story and having open dialog with the Administration (huh, the press talking with the government over matters that required such)...............

In the end however, they made a decision to run a story on a program that they asked for (rightfully so) and it was a decision to disclose a classified program that they were simply not qualified to make. Half right early on, then all wrong in the end...........................
 
Written By: Steve
URL: http://gettingnothingbutstaticfrommsm.blogspot.com/
Has anyone thought about this statement;

"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."

It is the Naturalization Oath of Allegiance
to the United States of America. I would assume that you could easily construct a case that all citizens are bound by this oath.

Therefore the editors of the NY times (once again assuming they are citizens of the US) are bound by this oath and they have broken it.

This part "I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;" would cover their obligation to listen to the gov’t request to NOT disclose a legal and classified program.

"But in my view, there is no reasonable debate possible about whether we ought to imprison journalists for publishing articles disclosing legitimately controversial government actions." Well I haven’t seen where this action was controversial as it was sanctioned by the congress.

So let me be part of the mob...Let’s hang ’em! (and their sources)

 
Written By: DCB
URL: http://
Jon,

you asked a good question here:


Where’s the line, you ask? For starters, certainly not here and not in this case.

My best stab at an actual law that would follow some actual semi-responsible law and could still suject journalists to prosecution in some case would look something like: for publishing classified information, the Admin has to be informed, and they have to wait for the Admin to make a case in writing that this info being in the public domain a) wasn’t already publicly available *anywhere* (as all the info in the NYTimes article is/was) or obviously deducible, and b) could be directly and specifically used by known and specified indivduals/groups to immediately kill US citizens. They can make the argument, and then the NYTimes is free to publish, and then the government’s case in writing and the Times’s disagreement goes to a federal judge and he decides.

However, this law would only be possible after completely revamping the current legal state of classified information, wherein political, elected officials like the president and his direct subordinates can classify anything they want with no merit-based test whatsoever on whether said information must be kept secret to protect national security.

The government’s unbridled ability to classify combed with laws flat-out making it illegal to publish classified info without conditions attached, is a huge, glaring open barn door to controlling the media through fear and punishment.

Nothing in the NYT article was classified. Hell, there wasn’t any specific information at all besides info readily available in the public domain. Certainly nothing that could help a terrorist avoid having his banking transaction monitored. Nothing. Nada. Zero. This is a fictional crisis over a national security "breach" that doesn’t exist, unless raising public awareness of information already publicly available is somehow equivalent to espionage.

Don’t go there.



 
Written By: asphalt
URL: http://
The leakers gave the information to the NYT. The Times gave it to the terrorists.

Would it be legal for a private citizen to obtain top secret information from government sources and then send it to the enemy during war time by, say, mail? Isn’t publishing it just another way of transferring it to the enemy, one that simply has the color of protected speech?

If it is not considered a crime to dessiminate top secret information to the enemy if it is published instead of mailed, why would spies ever transmit any information by other means than publishing it? Providing such information to the enemy would always be a protected act if delivered by means of the press.
 
Written By: C. Fahy
URL: http://
Well, wonder no more, said program is now dead.

Europeans will no longer work with the US on it. The reporting has effectively killed it by making it public. I guess this is no big thing? Thoughts?

Funny enough, the IHT which reported this is owned by the NYT.
 
Written By: capt joe
URL: http://
asphalt -

The very existence of the program was classified as well as the way it acquired information. It had to be leaked to the press by those who had access to the info because the press didn’t have access to it. Because it was classified.

"Nothing in the NYT article was classified."

Yeah, that’s why they had to spend so much time with the government begging them not to expose the program.

Can anyone be more deliberately ignorant?
 
Written By: inmypajamas
URL: http://
Refusing to call a crowd of people a "lynch mob" when they are screaming "TRAITOR!," compiling hateful propaganda signs, and calling for life-long imprisonment of journalists is not the hallmark of someone who engages in reasoned debate, but rather, is the hallmark of someone who refuses to describe, or is unable to recognize, dangerous extremism when they see it.
Well, I applaud you for yet another attempt to block out debate. Lets see, now calling someone you believe violated national security for disgraceful reasons a traitor is out because it’s "extreme". Questioning the patriotism of those on the left is verboten because you act like shrill little girls when the legit question is raised. We can’t support the war unless we served/are serving/"signed up" our kids to fight. We can’t discuss Cindy Sheehan’s positions or comments because she lost a son and her "moral authority is absolute". At the rate you people are going, the only thing left for us to comment on will be the weather, provided that it’s not a global warming discussion of course.

In the meantime, calling for Bush impeachment because he LIED, because he did it for OIL, because he’s a traitor for "exposing" Valerie Plame, because "neocons" are "warmongers"......well, that’s all perfectly reasoned and rational and civil discourse, isn’t it!

Mr. Greenwald, you’re a moral cretin and a hypocrite.
 
Written By: shark
URL: http://
inmypajamas writes:
The very existence of the program was classified as well as the way it acquired information. It had to be leaked to the press by those who had access to the info because the press didn’t have access to it. Because it was classified.

"Nothing in the NYT article was classified."

Yeah, that’s why they had to spend so much time with the government begging them not to expose the program.

Can anyone be more deliberately ignorant?
Yes, well:
The report by Comras referenced here is the same one cited in my post yesterday to demonstrate that it was already public knowledge that the U.S. has access to and actively monitors financial transactions effectuated through SWIFT. In the Globe article, even Bush’s own former high-level terrorism official makes clear that nothing in the Times report disclosed any significant operational information not previously in the public domain. And the Globe article identifies multiple other instances in which similar information was publicly disclosed by the Bush administration itself as a means of boasting about its anti-terrorism record.
Do read Greenwald’s whole thing. (And yes, as is characteristic, he’s bombastic, but the substance is what it is.)

 
Written By: Mona
URL: http://
I wonder if the bombastic Greenwald will be able to provide the quotes I requested when Greenwald said the: "President, Attorney General, and top Senators and Congressmen on down, to political pundits and opinion makers — openly speculating about criminal prosecutions against you — while many of them called you a traitor and accused you of committing treason"
(I requested direct quotes from the President, AG, and top Senators and Congressmen).

Or is the the bombastic Greenwald was simply being bombastic?
 
Written By: Anonymous
URL: http://
Here’s a line, Jon: If I had, as a private citizen, somehow obtained and publicized on a sign in my front yard, any of the information that the NYT published, could I be jailed under current law?

I’ve always thought it humorous how everyone is quite familiar with the second and subsequent clauses of the First Amendment, since that’s where the goodies are, but rarely tarry over the first clause: "Congress shall make no law." What this means is that Congress could not pass a law prescribing criminal penalties for newspapers (or blogs) that publish classified information, but that in no way implies that employment by or use of a newspaper is some kind of legal magic cape that shelters individuals breaking other laws that are constitutional for Congress to make. Freedom of the press is, after all, an individual right of the people, not some institutional right intended to make some institutions more equal than others.

yours/
peter.
 
Written By: Peter Jackson
URL: http://www.liberalcapitalist.com
I wonder if the bombastic Greenwald will be able to provide the quotes I requested when Greenwald said the: "President, Attorney General, and top Senators and Congressmen on down, to political pundits and opinion makers — openly speculating about criminal prosecutions against you — while many of them called you a traitor and accused you of committing treason"
(I requested direct quotes from the President, AG, and top Senators and Congressmen).
There is no cheaper tactic than demanding that someone provide quotes that you could easily find yourself and then acting as though you’re somehow vindicated when your demands aren’t met. Anyone who pays even passing attention to the news would be aware of the statements I was referencing. And, if you were really interested, you could easily find them yourself using the tool called "Google" and a couple of obvious search terms. Nonetheless, since you need to be spoon fed, here you go:

From the Washington Post, May 22, 2006:
Attorney General Alberto R. Gonzales raised the possibility yesterday that New York Times journalists could be prosecuted for publishing classified information based on the outcome of the criminal investigation underway into leaks to the Times of data about the National Security Agency’s surveillance of terrorist-related calls between the United States and abroad.

"We are engaged now in an investigation about what would be the appropriate course of action in that particular case, so I’m not going to talk about it specifically," he said on ABC’s "This Week."

In December, the Times broke a story about the secret program.

On the talk show, when asked if journalists could be prosecuted for publishing classified information, Gonzales responded, "There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility."
And in the very first press conference Bush gave after the NY Times disclosed the warrantless eavesdropping program, he said this:
There is a process that goes on inside the Justice Department about leaks, and I presume that process is moving forward. My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we’re discussing this program is helping the enemy. . . .

You’ve got to understand — and I hope the American people understand — there is still an enemy that would like to strike the United States of America, and they’re very dangerous. And the discussion about how we try to find them will enable them to adjust. . . . But it is a shameful act by somebody who has got secrets of the United States government and feels like they need to disclose them publicly. . . .

We’re at war, and we must protect America’s secrets. And so the Justice Department, I presume, will proceed forward with a full investigation. I haven’t ordered one, because I understand there’s kind of a natural progression that will take place when this kind of leak emerges.
And the administration subsequently leaked that there was, indeed, a DoJ investigation that included not only possible criminal prosecution against the leakers, but also against the NYT itself.

And that doesn’t include the numerous Senators and House members who are close allies of the administration who have repeatedly accused the Times of treason and called for criminal prosecution against them. Senate hearings were held on this question, and numerous Senators expressly advocated criminal prosecution. If you need more quotes, go to www.Google.com and enter "Senate hearings Espionage Act New York Times" and you will find more than you count.
 
Written By: Eddie
URL: http://
asphalt -

The very existence of the program was classified as well as the way it acquired information. It had to be leaked to the press by those who had access to the info because the press didn’t have access to it. Because it was classified.

"Nothing in the NYT article was classified."

Yeah, that’s why they had to spend so much time with the government begging them not to expose the program.

Can anyone be more deliberately ignorant?



A rather classic case of flawed logic.

The fact that the BushAdmin begged them not to publish the story does not equal information = classified. The press not having access to it does not equal information = classified. It’s been absolutely proved that the info that the US was monitoring the SWIFT database was publicly available; it was simply low-profile. Do you know what OFAC is? I’m guessing you don’t, but it’s publicly available knowledge.

The NYTtimes named the SWIFT association and our relationship with it - publicly available info - explained the SWIFT association - again, public info - and provided a few examples of successful prosecutions based on the information - probably publicly available also, and certainly not something the terrorists didn’t already know, nor something particularly relevant to their decision-making matrix.

Publishing publicly available info and raising public awareness of a low-profile program may or may not be ideal for counterterrorism purposes, but it sure as heck ain’t illegal.
 
Written By: glasnost
URL: http://
Mona/Greenwald -

Yes, well, if the information in the article were all just public knowledge, I guess that the government, the 911 chairs, and even John Murtha were just barking up the wrong tree, thinking that there was actually anything that needed to be withheld from the article.

They were debating the public outing of a classified program and all the Globe’s protestations to the contrary don’t change the facts on the ground. The NYT took it upon themselves to declassify a classified program that the NYT even admits was legal and effective for no other reason than their own fear of a theoretical abuse of power that may possibly come in the future.

The NYT is certainly playing a lot of defense right now for simply re-printing previously public knowledge.
 
Written By: inmypajamas
URL: http://
Publishing publicly available info and raising public awareness of a low-profile program may or may not be ideal for counterterrorism purposes, but it sure as heck ain’t illegal.
I’ll tell you what. Please find in all those nifty public sources the exact same information that the NYT published. Make sure that you put it all together and get all the details correct.
 
Written By: Mark A. Flacy
URL: http://
There is no cheaper tactic than demanding that someone provide quotes that you could easily find yourself and then acting as though you’re somehow vindicated when your demands aren’t met.

The burden of proof is on the person making the assertion.

However, thank you, you have shown the AG speculating about charges against the NYT.
OTOH, in the quote you provided the President was speaking about the leakers, not the NYT.
The "subsequently leaked" link to the Huffington Post article includes a quote from Porter Goss hoping for a grand jury investigation with reporters asked to out their sources (the leakers), not prosecuting the NYT.

So far one direct quote from a person (the AG) actually speculating about charges.

No quotes from the President, AG, Senators and Congressmen, calling Risen/NYT treasonous and traitors.



Re google, again, burden of proof is on the person making the assertion.
 
Written By: Anonymous
URL: http://
Andrew Olmsted:
Er...has anyone actually endorsed dragging Bill Keller from his home and
stringing him up from the nearest tree?
Not exactly stringing someone up from a tree, but this indivduals
suggestions
would lead to what I would consider to be worse.
It’s time to do the right thing. It’s time to bomb the New York Times out of
existence, and put the appropriate parties on trial for sedition.
...
The New York Times and al-Jazeera, is there any difference?
Andrew Olmsted:

I fail to see how rhetorical excess from the left will help matters.
I would tend to agree, but I would also add that such excess responses are
more or less human nature.
 
Written By: John Harrold
URL: http://
Let me tackle one of the premises of this post, to wit:

(1) There is not a single sentence in the Times banking report that could even arguably "help the terrorists."

The argument is that the terrorists knew of this program, had adapted accordingly, and were not likley to be detected going forward.

My response is, so what? As an alternative example, the enhanced airport security procedures are well publicized and have not caugth anyone in years, but no one advocates their complete elimination. Why not? Because even though terrorists have adapted, they are re-channeled into less convenient, less secure financing channels.

Just hypothetically (although if this is accurate, I am sure the Times will report it soon enough) - suppose we have some whiz-bang means of marking and tracking currency, and are having good success tracking and busting Qaeda couriers with knapsacks stuffed with Benjamins.

Don’t you think it would be fair to partially credit the SWIFT program (in this *hypothetical* instance), which redirected Qaeda into a more vulnerable channel?

If folks believe Bill Keller, the Admin effort to convince him that publication would prompt Qaeda to change tactics was "half-hearted"; their real concern was that public hue and cry would prompt Europe to kill the program. Which is hapening. Which is the mechanism by which the publication of this story helped Qaeda.

Folks who think I am making this up can check this excerpt from Suskind’s "One Percent Solution", courtesy of the point-missing MahaBlog. The topic is Al Qaeda adaptatins to electronic surveillance:

Eventually, and not surprisingly, our opponents figured it out. It was a matter, really, of deduction. Enough people get caught and a view of which activities they had in common provides clues as to how they have have been identified and apprehended.

“We were surprised it took them so long,” said one senior intelligence official. …

…The al Qaeda playbook, employed by what was left of the network, its affiliates and imitators, started to stress the necessity of using couriers to carry cash and hand-delivered letters. This slows the pace of operations, if not necessarily their scale, and that was, indeed, a victory. …




 
Written By: Tom Maguire
URL: http://
inmypajamas:

The NYT is certainly playing a lot of defense right now for simply re-printing previously public knowledge.

Because of political posturing, the ignorant and credulous right-wing noise machine that rushes eagerly to condemn without carefully examining the facts, and not-so-subtle threats from people like you all the way up to the Attorney General. "Playing defense = guilt" is the equation of a thug.

They were debating the public outing of a classified program and all the Globe’s protestations to the contrary don’t change the facts on the ground.

I’m not really sure that this program was classified. I haven’t seen you present any documentation or evidence that demonstrates that. But anyway,

Quoting from "Third report of the Monitoring Group established pursuant to Security Council resolution 1363 (2001) and extended by resolution 1390 (2002)"
found at UNODC.org:

31. 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.


Meanwhile, Mark Flacy:

Please find in all those nifty public sources the exact same information that the NYT published.

Let’s see, what exactly did the article say?

Name of SWIFT program: I.E. program related to SWIFT.
That’s been covered.

****

Bunch of info about SWIFT: location, vague statistics on number and type of transactions SWIFT handles. All stuff you can find on http://www.swift.com/index.cfm?item_id=1008

***

Info that the gov. is looking at this stuff. Again, easy to tell from the UN report. Not only that, given all of the repeated references to new programs to track terrorist financial transactions by none other than GWB, any sensible terrorist organization would have drawn up a list of major private financial associations and assumed that they were all targets, and SWIFT would have been on there. Any half-baked terrorist is also avoiding CHIPS and Fedwire, also mentioned here. And even the amateurs not smart enough to specifically know what to avoid are avoiding financial instituations generally. There have been many, many stories and reports on hawala and the efforts of terrorists to use it and avoid the banking system - stories from 2004, 2003, and so on.

***

Mentioning a few terrorists we’ve nailed with the help of this program. This is the first thing I didn’t know before I read the article, so go ahead, make your case on *exactly* how knowing that we arrested somebody based on info from this database is more damaging than just knowing that we’re monitoring the database,
which they already knew.

What isn’t here?

Any info about the technical means of how we are monitoring that someone could use to interfere with it.

Any info about the parameters of any broad-based pattern matching algorythmns or specifications that could help anyone determine what transaction might be monitored and what might not.

Any information about investigations currently in progress.

In operational matters article does not say anything more than that the program exists and that we use a database. It talks about legal concerns, US law, the SWIFT cooperative, Bush Admin actions to persuade SWIFT, yada yada yada. It’s a civics history of the effort. That’s all there is. Have you even read the article, Mark?

If you can come up with an example of any of the three types of info I throw out here as provided by this article, I’ll be happy to reconsider what I’ve said.
Otherwise, the dog don’t bark.

Don’t take my word for it:

From Larry Johnson at No Quarter: (http://noquarter.typepad.com/my_weblog/2006/06/president_bush_.html)


Excuse me, but where is the beef? As someone who works on a daily basis on money laundering issues and who is credited (see page 3, footnote 15), along with my partner, for identifying a money laundering technique employed by terrorists, I am mystified why this is even considered a story. It is no secret that the U.S. Government has been trying to monitor terrorist financial transactions since 9-11. Anyone who works in the banking/financial sector knows that SWIFT—the Society for Worldwide Interbank Financial Telecommunication—is a major, but not only mechanism, for moving financial assets around the world.

The only "secret" I can see, based solely on my understanding of how financial investigations work, is the fact that the CIA has access to this data without any judicial oversight. This is the classic FBI vs. CIA connundrum. If you use a law enforcement approach you are subject to judicial oversight. If you are doing "international" intelligence you have no effective oversight; the key is not to get caught.


Bio:


Larry C. Johnson is CEO and co-founder of BERG Associates, LLC, an international business-consulting firm that helps corporations and governments manage threats posed by terrorism and money laundering. Mr. Johnson works with US military commands in scripting terrorism exercises, briefs foreign governments on a regular basis on terrorist trends, and conducts undercover investigations on product counterfeiting and smuggling.
Mr. Johnson, who worked previously with the Central Intelligence Agency and U.S. State Department’s Office of Counter Terrorism, is a recognized expert in the fields of terrorism, aviation security, crisis and risk management.
 
Written By: ecorectic
URL: http://
From ecorectic:

I’m not really sure that this program was classified. I haven’t seen you present any documentation or evidence that demonstrates that. But anyway...

From the Times first story:

Nearly 20 current and former government officials and industry executives discussed aspects of the Swift operation with The New York Times on condition of anonymity because the program remains classified.

Does that count? Or is the Times lying?

Or here is 9/11 co-chair Tom Kean describing how he was briefed so that he could help try to dissuade the Times:

But faced with a possible Times story, Treasury wanted to tell Kean about the program, and two officials traveled to his office in Far Hills, New Jersey. “They sat here and closed all the doors and told me that my security clearance had been reactivated for the purpose of the briefing,” Kane says. “They gave me a full briefing about the program; they were here quite a while.”

Reactivated his clearance? Why, unless the briefing included classified info? Or are these just lies?
 
Written By: Tom Maguire
URL: http://
Classified “off the record” arguments used as sources of confirmation?

In reviewing the details presented by the NY Times in their disclosure of the covert SWIFT tracking program, their defense of their actions, and how they came by the information, as well as the details given in the Letter to the Editor from the Secretary of Treasury, a seemingly alarming and so far overlooked implication is evident. The Times claims to have over 20 sources of confirmation for their story, which at first glance might lead us to think that our government is chocked full of criminal leakers! But whom exactly are the Times referring to?

The Treasury Secretary describes numerous contacts with the Times reporters and editorial staff over recent months in which members of the Administration (including the Treasury Secretary himself and his Under Secretary), plus a prominent group of bi-partisan congressmen, as well as the bi-partisan co-chairs of the 911 Commission, ALL sated their case for why the program needed to remain secret, as well why it was a fully legal and proper type of covert anti-terrorist operation.

So, the obvious conclusion is that the NY Times turned around and listed ALL of the officials who came to them in private, and almost certainly "off the record", with the their pleas to NOT run the story as confirmation that the story was true! Either that or we must assume that 20 OTHER people with access to classified info on covert operations all spilled the beans to the Times. I find the latter possibility doubtful at best (especially when such people must have known that they faced 10 to 20 years in jail for doing so). So it is clear that much of the information printed by the Times was "leaked" by the government officials who were tying to convince the Times to keep it secret!

This raises some serious issues of journalistic integrity on its own accord. Let’s start with the code of journalism and look at the basic differences between "off the record" conversations and "deep background" or "protected" sources. The latter two are the sources from which journalists have historically been able to get information without quoting their sources in print. On the other hand, information acquired from "off the record" conversations is supposed to be excluded completely from any published articles.

Are we to assume that when numerous officials went to the NY Times to argue against publication of this covert program, insisted that the details should remain secret on the grounds of national security, and explained why the program is totally legal (as well as outlining the protections in place to protect the privacy of those not involved in terrorist transactions) that they expected all of the information they provided to be used as confirmation and the details they provided to be included in the eventual publication of the story. I think not.

The Times was very clever when they included many of the arguments made for keeping the story under wraps in the story itself. In doing so they appear to be presenting "both sides" of the argument surrounding disclosure of classified information. However, it certainly appears that their published arguments attributed to "supporters" of keeping the operation secret MUST have come from "off the record" sources. What kind of "whistle blower" would have come to the Times with arguments for them not to publish the story?

What are the implications of these events? Should this and every future Administration now assume that whenever they present arguments to a media outlet for keeping a fully legal covert operation secret that their arguments will be used as confirmation for the story and included in the text of the publication at the sole discretion of the editor and publisher? Should the government ever share classified information a publication to try to convince an editor why that information should not be made public if the editor can decide to ignore the government’s arguments and then include that additional “off the record” classified information as both confirmation and substantive parts of their publication? What kind of sense would that make? It might have been better to let the Times run with whatever they had in first place which might have led terrorists to assume that we would track EVERY financial transaction (and let drug dealers and the mafia think the same thing), instead of wasting breath explaining all the safeguards in place to protect privacy — safeguards that terrorists and other criminals will now exploit or circumvent to avoid detection of their financial transactions.

What is the solution? I am tempted to suggest the creation of a special court that would listen to the arguments of journalists and the government before passing rulings on allowing the publication of classified information. The arguments from the government might have to be given in private, only to the judges, so as to avoid providing the journalists with any additional classified information. Meanwhile, the journalists might even have to disclose their sources (in private or otherwise) to support the credibility of their allegations and avoid charges of conspiracy in relation to the Espionage Act. If such a special court (something similar to the FISA court) ruled in favor of the government, the media would be banned from disclosing anything related to the classified information in question and the responsible parties (reporters, editors and/or publishers) would face immediate criminal charges if they did. If, on the other hand, the court ruled in favor of the media, then the information could be published and the government could decide what if any of their rebutal arguments would be released to counter or justify the disclosed information.

It seems that we have a growing need for arbitation on these types of issues. I won’t even try to second guess what a court decision would have been on either the NSA intercepts or the SWIFT financial tracking cases, but seems as if having some form of adjudication, even if it involves "prior restraint" on issues of national security in time of war, is in the national and even public interest. So, could this case contribute to what some would consider restrictions on freedom of the press? Should it? What is a reasonable solution here?

David Forsyth, MA
Malibu, California
6/28/06

 
Written By: David Forsyth
URL: http://groups.yahoo.com/group/IRandPolitics/

 
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