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The Press is not above the law
Posted by: Jon Henke on Saturday, August 12, 2006

Jonathan Adler reports...
The federal government may prosecute private citizens who illegally receive and retransmit classified information, held federal district court Judge T.S. Ellis III yesterday in United States v. Rosen.
With the judge-issued caveat that "violation of the statute must be both knowing and willful", this seems to me like a decision in the right direction. If one concedes that the government has the right to classify information, then one necessarily must conclude that it has the right to take steps to protect that information, including the prosecution of its disclosure. I'm not completely sure that journalists should be the subject of that prosecution, but I'll get to that in a moment. First, let's dispense with the notion of confidentiality as it applies to this circumstance.
journalists may not knowingly and willfully participate in the commission of a crime.
As wary as I am of federal intrusion into freedoms of the press, I'm also opposed to giving 'journalists' rights over and above those available to the rest of us. One might argue that doctors and lawyers have client confidentiality privileges, but those do not extend to crimes in which they participate or witness firsthand. The judge in United States v. Rosen has simply said that journalists may not knowingly and willfully participate in the commission of a crime. It's very difficult to argue that journalists should have the right to participate in crimes, so that they may then report on them.
Freedom of the press does not depend upon their ability to act as a legally untouchable dead drop for spies and leakers.
How we should distinguish between disclosures that should constitute a 'crime' and legitimately disclosed information, or between a journalist and a non-journalist are separate discussions, but equally important ones. They are not the subject of this post, though.

However, I'm not really certain that journalists should be prosecuted for reporting classified information. It seems to me that the person disclosing classified information is the criminal in need of prosecution, and the journalist mostly a witness to the crime. In the case of the unauthorized disclosure of classified information, it seems to me that the government should have the right to compel the testimony of witnesses, including—if necessary—journalists. Freedom of the press does not depend upon their ability to act as a legally untouchable dead drop for spies and leakers.
 
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Wasn’t this what the whole Judith Miller case was about? If someone committed a crime by leaking the name of a CIA agent to her, then she cannot claim immunity.

The problem is a little more vexing when the leaker claims to be revealing information suggesting the government itself is violating the law. What do you do if you work in the NSA and notice your boss or agency is doing something illegal. Is it a crime to be a whistleblower if you work in a confidential part of the government? Does it depend on the level of operational detail you leak? Is it OK if government officials selectively leak classified information in order to bolster the government’s case, rather than critique it? What’s the legal standard here?
 
Written By: Elrod
URL: http://
Elord, there is a federal whistleblower law enacted precisely for intelligence operatives who want to report what they believe is corruption or illegality. They are supposed to go to members of, I believe, the congressional Intelligence Committee, who have security clearances.

That said, it is highly doubtful that with the GOP controlling the Executive and both houses of Congress, such reporting could be effective. Bush and Cheney have either blocked the investigations of various committees into alleged illegalities on the part of the Executive, or rendered such investigations impotent.
 
Written By: Mona
URL: http://
It’s like the torture issue. Torture should be illegal, but of course there will sometimes be that situation where the interrogator decides to break the law BECAUSE IT’S THAT IMPORTANT.

Same with the journos...instead of dreaming of Pullitzers it had better be very important, important enough to risk jail, when they publish a leak.
 
Written By: Harun
URL: http://
"Elord, there is a federal whistleblower law enacted precisely for intelligence operatives who want to report what they believe is corruption or illegality. They are supposed to go to members of, I believe, the congressional Intelligence Committee, who have security clearances.

That said, it is highly doubtful that with the GOP controlling the Executive and both houses of Congress, such reporting could be effective. Bush and Cheney have either blocked the investigations of various committees into alleged illegalities on the part of the Executive, or rendered such investigations impotent."

GOP control of Congress = no Democrats on these committees? C’mon.
 
Written By: Harun
URL: http://
That said, it is highly doubtful that with the GOP controlling the Executive and both houses of Congress, such reporting could be effective.
Personally Mona, I would find it a lot easier to consider your comments if they didn’t all come with a gratuitous dose of Greenwaldian bad faith. It’s juvenile and tiresome, and I’m about at the point where I quit reading you altogether.

sorry/
peter.
 
Written By: Peter Jackson
URL: http://www.liberalcapitalist.com
"GOP control of Congress = no Democrats on these committees? C’mon"

The Democrats can probably make a fuss, and some already do, but since they are in the minority, they cannot use the powers of the committees to investigate. No subpoenas, no witnesses, no staff investigators, no official publicity, etc.
 
Written By: timactual
URL: http://
"if they didn’t all come with a gratuitous dose of Greenwaldian bad faith."

For those of us who don’t know what you are talking about, what is "Greenwaldian bad faith" and where does it appear in the comment? It seems to be a pretty straightforward comment to me.
 
Written By: timactual
URL: http://
Just for discussion, what do you consider criminal? In other words, what is your personal set of criteria for determining if an action is a crime?

I hope the answer isn’t "whatever the government says is a crime," because that would be most un-libertarian, reflective of authoritarian thinking.
 
Written By: Nicolai Brown
URL: http://www.nicolaibrown.com
If classified information is given to a reporter, and the reporter does not reveal it, a crime may have been committed, the reporter was an observer, and nothing was "revealed."

If the reporter reports, the reporter was actively engaged in the crime.

The reporter’s choices are 1) do nothing, 2) publish, or 3)take it to the IG or the appropriate legislative oversight committee. In choice 1 and 3 they are an observer, in choice 2 they are a participant.
 
Written By: Terry J
URL: http://
I hope the answer isn’t "whatever the government says is a crime," because that would be most un-libertarian, reflective of authoritarian thinking.
Well technically, in order for a government to rule successfully, it is the only body that legally defines crime and criminal behaviors. I suspect that that’s not your implication.
 
Written By: bains
URL: http://
Jon Henke is wrong in that he assumes that a person with classified knowledge ready to spill always takes the initiative and asks for NOTHING from the journalist but privacy as he/she clears their "conscience".

But that does not account for powerful, connected journalists moving between the political-journalist-publication-think tank worlds and always with an eye open for career advancement or enrichment Pumping possible sources and offering a variety of rewards for disclosing business or governmental secrets that serve the jouralist or the journalist employer’s interests.

Journalists have been in major financial scandals on business beats for obtaining inside business information then acting on it, frequently in collusion with the discloser. Bad news? Great opportunity to invest in shorting a stock. Some journalists became multimillionaires off that scam before ethics laws and the SEC tightened down.

Sometimes a journalist can offer a "concerned" person a book deal through their publications contacts for particularly good dirt. Or practice checkbook journalism. Or, if it involves classified secrets judged quite valuable by the reporter or the owner of the media - a phone call to get a well-compensated job offer for the leaker at a think tank keenly interested in undermining an Administration or powerful politican.

For lesser classified secrets, in some cases, an opportunity to bypass the elected representatives and pursue political egendas both reporter and leaker agree on, or a chance to anonymously get revenge on an official they have had a run-in with.

Reporters are not high priests and priestesses immunized from having to follow some of our highest importance laws by the Holy 1st Amendment - despite the notion of some libertarians that Veneration of the Sacred Test begins and ends over Freedom of the Owners and Agents of the Press to do as they want. Sorry, it does not ovveride all other laws and vital considerations of the nation and Constitution. Frequently the publishers and reporters are the initiators of disclosing damaging leaks that end up killing innocent Americans that start the ball rolling by looking for a squealer or two to confirm what they suspect. Or they can serve as the enablers of and facilitators of recalcitrant leakers. And many greedy or ideologically driven reporters have gone about damaging the nation, noted persons, or a business to mainly to further their own political agendas and financial interests. (See Mary Mapes, Jack Grubman). Some reporters have made a nice income on the side blackmailing notables to keep certain info they find private (See the NYPost Page 6 scandal)

No immunity! A grand jury should investigate both leaker and reporter suspects in cases of national security violations, character assassination for pay, and SEC violations, and other "it takes at least two to play the game" abuses.
 
Written By: C. Ford
URL: http://
If classified information is given to a reporter, and the reporter does not reveal it, a crime may have been committed, the reporter was an observer, and nothing was "revealed."
!tihslluB

Giving classified information to a person without a suitable clearance and a need-to-know is a crime. Period.
 
Written By: Mark A. Flacy
URL: http://
It’s a troublesome situation. I’m more concerned about the suppression of information than about its unauthorized disclosure. Self-interest works pretty well to prevent reporters from disclosing information that when disclosed presents a direct and immediate threat to American lives - they’d be crucified.

The whistleblower laws directing reporting illegal activities within classified cirumstances to congress really are inadequate. Congress is completely dysfunctional when attempting to compel a president of their own party to stop breaking the law, especially if they themseleves would be committing illegal acts by publicly discussing the information. Regardless of whether they possess the theoretical ability to stop illegal behavior, they will in reality often be hog-tied or even genuinely indifferent.

I can’t argue against punishing the government worker who leaks the info - it might be not in the nation’s interest, but the government has the right to do so.
Journalists’ motives may not always be pure, and their decisions may not always be the right ones, but such is true for any influential piece of our system.

A free press is vital to the survival of the state. If irresponsible leaks genuinely damage the republic, let the journalists be published by the hand of the marketplace and public opinion.

The circumstances when I would consider the acceptability of prosecuting journalists would be as follows:

a) must prove in a court of law that published information was direct and primary cause of deaths of American citizens:

b)must go hand in hand with total redraw of government ability to classify info - impartial monitoring system, maybe directly elected, overseeing all desired classification. Almost every government on earth classifies info solely to protect itself politically, US is no exception, problem needs a solution.
 
Written By: glasnost
URL: http://
if they themseleves would be committing illegal acts by publicly discussing the information.
Congress, however, has the ability to pass legislation which would protect members from prosecution in such cases.

According to your screed, we already *have* an imperial presidency since Congress cannot control the Executive branch.
 
Written By: Mark A. Flacy
URL: http://
Personally Mona, I would find it a lot easier to consider your comments if they didn’t all come with a gratuitous dose of Greenwaldian bad faith.
There was no ’bad faith’ in her comment at all. It is very unlikely that a GOP controlled House and Senate would exercise strong oversight, or that whistleblowing would be as effective in the face of partisan committees.
 
Written By: Jon Henke
URL: http://QandO.net
I disagree. If she were making a generic argument about partisan conflicts of interests, why throw in the gratuitous references to the GOP in particular, followed by more gratuitous swipes at Bush and Cheney? She could just as easily have written "That said, it is highly doubtful that anytime a single party controls the Executive and both houses of Congress, such reporting could be effective," and left it at that.
 
Written By: Xrlq
URL: http://xrlq.com
If one concedes that the government has the right to classify information...

Governments don’t have "rights"; governments have powers.

The judge in United States v. Rosen has simply said that journalists may not knowingly and willfully participate in the commission of a crime.

I think this ignores an important question: should the dissemination of this of this material be a crime in the first place? I’ll accept that a government may have the power (not the right) to classify certain material. Does that mean that it also has the power to classify any material it deems fit for classification? Or should there be some better criterion than that so that a government simply can’t use classification as a means to hide its mistakes?
 
Written By: Suetonius
URL: http://
I also think that the whole condemnation of leaking ignores an important point: why is leaking so important these days (and by this I mean the post-WWII era)? Is it because our system of classification is far too "robust?" As an average citizen there has been a lot of leaked material over the decades that I have found pertinent to my life, my freedoms, etc., and wasn’t on its face a danger to the national security, and as that is the case, I’d like to know why this information wasn’t simply freely available?
 
Written By: Suetonius
URL: http://
According to your screed, we already *have* an imperial presidency

I don’t know the answer to that.

since Congress cannot control the Executive branch.

This certainly seems true from my POV.
 
Written By: glasnost
URL: http://

 
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