The case for espionage

[stevo]

This is a great article and covers just about every corner of the situation. I would suggest that you read this, it is quite long, but it is also very comprehensive. I don't have much of a background in law so I would definitley like to hear what those of you with law backgrounds have to say.

http://www.commentarymagazine.com/Pr...06advance.html

COMMENTARY
March 2006

Has the New York Times Violated the Espionage Act?

Gabriel Schoenfeld

“Bush Lets U.S. Spy on Callers Without Courts.” Thus ran the headline of a front-page news story whose repercussions have roiled American politics ever since its publication last December 16 in the New York Times. The article, signed by James Risen and Eric Lichtblau, was adapted from Risen’s then-forthcoming book, State of War.1 In it, the Times reported that shortly after September 11, 2001, President Bush had “authorized the National Security Agency [NSA] to eavesdrop on Americans and others inside the United States . . . without the court-approved warrants ordinarily required for domestic spying.”

Not since Richard Nixon’s misuse of the CIA and the IRS in Watergate, perhaps not since Abraham Lincoln suspended the writ of habeas corpus, have civil libertarians so hugely cried alarm at a supposed law-breaking action of government. People for the American Way, the Left-liberal interest group, has called the NSA wiretapping “arguably the most egregious undermining of our civil liberties in a generation.” The American Civil Liberties Union has blasted Bush for “violat[ing] our Constitution and our fundamental freedoms.”

Leading Democratic politicians, denouncing the Bush administration in the most extreme terms, have spoken darkly of a constitutional crisis. Former Vice President Al Gore has accused the Bush White House of “breaking the law repeatedly and insistently” and has called for a special counsel to investigate. Senator Barbara Boxer of California has solicited letters from four legal scholars inquiring whether the NSA program amounts to high crimes and misdemeanors, the constitutional standard for removal from office. John Conyers of Michigan, the ranking Democrat on the House Judiciary Committee, has demanded the creation of a select panel to investigate “those offenses which appear to rise to the level of impeachment.”

The President, for his part, has not only stood firm, insisting on both the legality and the absolute necessity of his actions, but has condemned the disclosure of the NSA surveillance program as a “shameful act.” In doing so, he has implicitly raised a question that the Times and the President’s foes have conspicuously sought to ignore—namely, what is, and what should be, the relationship of news-gathering media to government secrets in the life-and-death area of national security. Under the protections provided by the First Amendment of the Constitution, do journalists have the right to publish whatever they can ferret out? Such is certainly today’s working assumption, and it underlies today’s practice. But is it based on an informed reading of the Constitution and the relevant statutes? If the President is right, does the December 16 story in the Times constitute not just a shameful act, but a crime?


II

Ever since 9/11, U.S. intelligence and law-enforcement authorities have bent every effort to prevent our being taken once again by surprise. An essential component of that effort, the interception of al-Qaeda electronic communications around the world, has been conducted by the NSA, the government arm responsible for signals intelligence. The particular NSA program now under dispute, which the Times itself has characterized as the U.S. government’s “most closely guarded secret,” was set in motion by executive order of the President shortly after the attacks of September 11. Just as the Times has reported, it was designed to track and listen in on a large volume of calls and e-mails without applying for warrants to the Foreign Intelligence Security Act (FISA) courts, whose procedures the administration deemed too cumbersome and slow to be effective in the age of cell phones, calling cards, and other rapidly evolving forms of terrorist telecommunication.

Beyond this, all is controversy. According to the critics, many of whom base themselves on a much-cited study by the officially nonpartisan Congressional Research Service, Congress has never granted the President the authority to bypass the 1978 FISA Act and conduct such surveillance. In doing so, they charge, the Bush administration has flagrantly overstepped the law, being guilty, in the words of the New Republic, of a “bald abuse of executive power.”

Defenders answer in kind. On more than twelve occasions, as the administration itself has pointed out, leaders of Congress from both parties have been given regularly scheduled, classified briefings about the NSA program. In addition, the program has been subject to internal executive-branch review every 45 days, and cannot continue without explicit presidential reauthorization (which as of January had been granted more than 30 times). Calling it a “domestic surveillance program” is, moreover, a misnomer: the communications being swept up are international in nature, confined to those calls or e-mails one terminus of which is abroad and at one terminus of which is believed to be an al-Qaeda operative.

Defenders further maintain that, contrary to the Congressional Research Service, the law itself is on the President’s side.2 In addition to the broad wartime powers granted to the executive in the Constitution, Congress, immediately after September 11, empowered the President “to take action to deter and prevent acts of international terrorism against the United States.” It then supplemented this by authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” The NSA surveillance program is said to fall under these specified powers.3

The debate over the legality of what the President did remains unresolved, and is a matter about which legal minds will no doubt continue to disagree, largely along partisan lines. What about the legality of what the Times did?


III

Although it has gone almost entirely undiscussed, the issue of leaking vital government secrets in wartime remains of exceptional relevance to this entire controversy, as it does to our very security. There is a rich history here that can help shed light on the present situation.

One of the most pertinent precedents is a newspaper story that appeared in the Chicago Tribune on June 7, 1942, immediately following the American victory in the battle of Midway in World War II. In a front-page article under the headline, “Navy Had Word of Jap Plan to Strike at Sea,” the Tribune disclosed that the strength and disposition of the Japanese fleet had been “well known in American naval circles several days before the battle began.” The paper then presented an exact description of the imperial armada, complete with the names of specific Japanese ships and the larger assemblies of vessels to which they were deployed. All of this information was attributed to “reliable sources in . . . naval intelligence.”

The inescapable conclusion to be drawn from the Tribune article was that the United States had broken Japanese naval codes and was reading the enemy’s encrypted communications. Indeed, cracking JN-25, as it was called, had been one of the major Allied triumphs of the Pacific war, laying bare the operational plans of the Japanese Navy almost in real time and bearing fruit not only at Midway—a great turning point of the war—but in immediately previous confrontations, and promising significant advantages in the terrible struggles that still lay ahead. Its exposure, a devastating breach of security, thus threatened to extend the war indefinitely and cost the lives of thousands of American servicemen.

An uproar ensued in those quarters in Washington that were privy to the highly sensitive nature of the leak. The War Department and the Justice Department raised the question of criminal proceedings against the Tribune under the Espionage Act of 1917. By August 1942, prosecutors brought the paper before a federal grand jury. But fearful of alerting the Japanese, and running up against an early version of what would come to be known as graymail, the government balked at providing jurors with yet more highly secret information that would be necessary to demonstrate the damage done.

Thus, in the end, the Tribune managed to escape criminal prosecution. For their part, the Japanese either never got wind of the story circulating in the United States or were so convinced that their naval codes were unbreakable that they dismissed its significance. In any case, they left them unaltered, and their naval communications continued to be read by U.S. and British cryptographers until the end of the war.4

If the government’s attempt to employ the provisions of the 1917 Espionage Act in the heat of World War II failed, another effort three decades later was no more successful. This was the move by the Nixon White House to prosecute Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers, which foundered on the rocks of the administration’s gross misconduct in investigating the offense. The administration also petitioned the Supreme Court to stop the New York Times from publishing Ellsberg’s leaked documents, in order to prevent “grave and irreparable danger” to the public interest; but it did not even mention the Espionage Act in this connection, presumably because that statute does not allow for the kind of injunctive relief it was seeking.


Things took a different turn a decade later with an obscure case known as United States of America v. Samuel Loring Morison. From 1974 to 1984, Morison, a grandson of the eminent historian Samuel Eliot Morison, had been employed as a part-time civilian analyst at the Naval Intelligence Support Center in Maryland. With the permission of his superiors, he also worked part-time as an editor of Jane’s Fighting Ships, the annual reference work that is the standard in its field. In 1984, dissatisfaction with his government position led Morison to pursue full-time employment with Jane’s.

In the course of his job-seeking, Morison had passed along three classified photos, filched from a colleague’s desk, which showed a Soviet nuclear-powered aircraft carrier under construction. They had been taken by the KH-11 satellite system, whose electro-optical digital-imaging capabilities were the first of their kind and a guarded military secret. The photographs, which eventually appeared in Jane’s Defence Weekly, another publication in the Jane’s family, were traced back to Morison. Charged with violations of the Espionage Act, he was tried, convicted, and sentenced to a two-year prison term.5

Finally, and bearing on issues of secrecy from another direction, there is a case wending its way through the judicial process at this very moment. It involves the American Israel Public Affairs Committee (AIPAC), which lobbies Congress and the executive branch on matters related to Israel, the Middle East, and U.S. foreign policy. In the course of these lobbying activities, two AIPAC officials, Steven J. Rosen and Keith Weissman, allegedly received classified information from a Defense Department analyst by the name of Lawrence Franklin. They then allegedly passed on this information to an Israeli diplomat, and also to members of the press.

Both men are scheduled to go on trial in April for violations of the Espionage Act. The indictment, which names them as part of a “conspiracy,” asserts that they used “their contacts within the U.S. government and elsewhere to gather sensitive U.S. government information, including classified information relating to national defense, for subsequent unlawful communication, delivery, and transmission to persons not entitled to receive it.” As for Franklin, who admitted to his own violations of the Espionage Act and was promised leniency for cooperating in an FBI sting operation against Rosen and Weissman, he was sentenced this January to twelve-and-a-half years in prison, half of the maximum 25-year penalty.6


IV

Despite their disparate natures and outcomes, each of these cases bears on the NSA wiretapping story. In attempting to bring charges against the Chicago Tribune, both Frances Biddle, FDR’s wartime attorney general, and other responsible officials were operating under the well-founded principle that newspapers do not carry a shield that automatically allows them to publish whatever they wish. In particular, the press can and should be held to account for publishing military secrets in wartime.

In the case of the Tribune there was no indictment, let alone a conviction; in the Pentagon Papers case, the prosecution was botched. But Morison was seen all the way through to conviction, and the conviction was affirmed at every level up to the Supreme Court (which upheld the verdict of the lower courts by declining to hear the case). It would thus seem exceptionally relevant to the current situation.

In appealing his conviction, Morison argued along lines similar to those a newspaper reporter might embrace—namely, that the Espionage Act did not apply to him because he was neither engaged in “classic spying and espionage activity” nor transmitting “national-security secrets to agents of foreign governments with intent to injure the United States.” In rejecting both of these contentions, the appeals court noted that the law applied to “whoever” transmits national-defense information to “a person not entitled to receive it.” The Espionage Act, the court made clear, is not limited to spies or agents of a foreign government, and contains no exemption “in favor of one who leaks to the press.”

But if the implication of Morison seems straightforward enough, it is also clouded by the fact that Morison’s status was so peculiar: was he convicted as a miscreant government employee (which he was) or, as he maintained in his own defense, an overly zealous journalist? In the view of the courts that heard his case, the answer seemed to be more the former than the latter, leaving unclear the status of a journalist engaged in the same sort of behavior today.

The AIPAC case presents another twist. In crucial respects, the status of the two defendants does resemble that of journalists. Unlike Morison but like James Risen of the New York Times, the AIPAC men were not government employees. They were also involved in a professional activity—attempting to influence the government by means of lobbying—that under normal circumstances enjoys every bit as much constitutional protection as publishing a newspaper. Like freedom of the press, indeed, the right to petition the government is explicitly stipulated in the First Amendment. Yet for allegedly taking possession of classified information and then passing such information along to others, including not only a representative of the Israeli government but also, as the indictment specifies, a “member of the media,” Rosen and Weissman placed themselves in legal jeopardy.




The AIPAC case thus raises an obvious question. If Rosen and Weissman are now suspended in boiling hot water over alleged violations of the Espionage Act, why should persons at the Times not be treated in the same manner?

To begin with, there can be little argument over whether, in the case of the Times, national-defense material was disclosed in an unauthorized way. The Times’s own reporting makes this plain; the original December 16 article explicitly discusses the highly secret nature of the material, as well as the Times’s own hesitations in publishing it. A year before the story actually made its way into print, the paper (by its own account) told the White House what it had uncovered, was warned about the sensitivity of the material, and was asked not to publish it. According to Bill Keller, the Times’s executive editor, the administration “argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country’s security.” Whether because of this warning or for other reasons, the Times withheld publication of the story for a year.7

Nor does James Risen’s State of War hide this aspect of things. To the contrary, one of the book’s selling points, as its subtitle indicates, is that it is presenting a “secret history.” In his acknowledgements, Risen thanks “the many current and former government officials who cooperated” with him, adding that they did so “sometimes at great personal risk.” In an age when government officials are routinely investigated by the FBI for leaking classified information, and routinely charged with a criminal offense if caught in the act, what precisely would that “great personal risk” entail if not the possibility of prosecution for revealing government secrets?

The real question is therefore not whether secrets were revealed but whether, under the espionage statutes, the elements of a criminal act were in place. This is a murkier matter than one might expect.

Thus, one subsection of the Espionage Act requires that the country be in a state of war, and one might argue that this requirement was not present. Although President Bush and other leading officials speak of a “war on terrorism,” there has been no formal declaration of war by Congress. Similarly, other subsections demand evidence of a clear intent to injure the United States. Whatever the motives of the editors and reporters of the New York Times, it would be difficult to prove that among them was the prospect of causing such injury.

True, several sections of the Act rest on neither a state of war nor on intent to injure, instead specifying a lower threshold: to be found guilty, one must have acted “willfully.” Yet this key term is itself ambiguous—“one of the law’s chameleons,” as it has been called. Does it mean merely acting with awareness? Or does it signify a measure of criminal purposiveness? In light of these and other areas of vagueness in the statutes, it is hardly surprising that, over the decades, successful prosecution of the recipients and purveyors of leaked secret government information has been as rare as leaks of such information have been abundant.


V

But that does not end the matter. Writing in 1973, in the aftermath of the Pentagon Papers muddle, two liberal-minded law professors, Harold Edgar and Benno C. Schmidt, Jr., undertook an extensive study of the espionage statutes with the aim of determining the precise degree to which “constitutional principles limit official power to prevent or punish public disclosure of national-defense secrets.”8 Their goal proved elusive. The First Amendment, Edgar and Schmidt found, despite providing “restraints against grossly sweeping prohibitions” on the press, did not deprive Congress of the power to pass qualifying legislation “reconciling the conflict between basic values of speech and security.” Indeed, the Espionage Act of 1917 was just such a piece of law-making, and Edgar and Schmidt devote many pages to reviewing the discussion that led up to its passage.

What they show is a kind of schizophrenia. On the one hand, a “series of legislative debates, amendments, and conferences” preceding the Act’s passage can “fairly be read as excluding criminal sanctions for well-meaning publication of information no matter what damage to the national security might ensue and regardless of whether the publisher knew its publication would be damaging” (emphasis added). On the other hand, whatever the “apparent thrust” of this legislative history, the statutes themselves retain plain meanings that cannot be readily explained away. The “language of the statute,” the authors concede, “has to be bent somewhat to exclude publishing national-defense material from its [criminal] reach, and tortured to exclude from criminal sanction preparatory conduct necessarily involved in almost every conceivable publication” of military secrets.

Thus, in the Pentagon Papers case, four members of the Court—Justices White, Stewart, Blackmun, and Chief Justice Burger—suggested that the statutes can impose criminal sanctions on newspapers for retaining or publishing defense secrets. Although finding these pronouncements “most regrettable,” a kind of “loaded gun pointed at newspapers and reporters,” Edgar and Schmidt are nevertheless compelled to admit that, in this case as in many others in modern times, the intent of the espionage statutes is indisputable:

If these statutes mean what they seem to say and are constitutional, public speech in this country since World War II has been rife with criminality. The source who leaks defense information to the press commits an offense; the reporter who holds onto defense material commits an offense; and the retired official who uses defense material in his memoirs commits an offense.

For Edgar and Schmidt, the only refuge from this (to them) dire conclusion is that Congress did not understand the relevant sections of the Espionage Act “to have these effects when they were passed, or when the problem of publication of defense information was considered on other occasions.”




Edgar and Schmidt may or may not be right about Congress’s incomprehension. But even if they are right, would that mean that newspapers can indeed publish whatever they want whenever they want, secret or not, without fear of criminal sanction?

Hardly. For in 1950, as Edgar and Schmidt also note, in the wake of a series of cold-war espionage cases, and with the Chicago Tribune episode still fresh in its mind, Congress added a very clear provision to the U.S. Criminal Code dealing specifically with “communications intelligence”—exactly the area reported on by the Times and James Risen. Here is the section in full, with emphasis added to those words and passages applicable to the conduct of the New York Times:

§798. Disclosure of Classified Information.

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

(b) As used in this subsection (a) of this section—
The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;
The terms “code,” “cipher,” and “cryptographic system” include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;
The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;
The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;
The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

Not only is this provision completely unambiguous, but Edgar and Schmidt call it a “model of precise draftsmanship.” As they state, “the use of the term ‘publishes’ makes clear that the prohibition is intended to bar public speech,” which clearly includes writing about secrets in a newspaper. Nor is a motive required in order to obtain a conviction: “violation [of the statute] occurs on knowing engagement of the proscribed conduct, without any additional requirement that the violator be animated by anti-American or pro-foreign motives.” The section also does not contain any requirement that the U.S. be at war.

One of the more extraordinary features of Section 798 is that it was drawn with the very purpose of protecting the vigorous public discussion of national-defense material. In 1946, a joint committee investigating the attack on Pearl Harbor had urged a blanket prohibition on the publication of government secrets. But Congress resisted, choosing instead to carve out an exception in the special case of cryptographic intelligence, which it described as a category “both vital and vulnerable to an almost unique degree.”

With the bill narrowly tailored in this way, and “with concern for public speech having thus been respected” (in the words of Edgar and Schmidt), Section 798 not only passed in Congress but, perhaps astonishingly in hindsight, won the support of the American Society of Newspaper Editors. At the time, the leading editors of the New York Times were active members of that society.


VI

If prosecuted, or threatened with prosecution, under Section 798, today’s New York Times would undoubtedly seek to exploit the statute’s only significant loophole. This revolves around the issue of whether the information being disclosed was improperly classified as secret. In all of the extensive debate about the NSA program, no one has yet convincingly made such a charge.

The Times would also undoubtedly seek to create an additional loophole. It might assert that, unlike in the Chicago Tribune case or in Morison, the disclosure at issue is of an illegal governmental activity, in this case warrantless wiretapping, and that in publishing the NSA story the paper was fulfilling a central aspect of its public-service mission by providing a channel for whistleblowers in government to right a wrong. In this, it would assert, it was every bit as much within its rights as when newspapers disclosed the illegal “secret” participation of the CIA in Watergate.

But this argument, too, is unlikely to gain much traction in court. As we have already seen, congressional leaders of both parties have been regularly briefed about the program. Whether or not legal objections to the NSA surveillance ever arose in those briefings, the mere fact that Congress has been kept informed shows that, whatever legitimate objections there might be to the program, this is not a case, like Watergate, of the executive branch running amok. Mere allegations of illegality do not, in our system of democratic rule, create any sort of terra firma—let alone a presumption that one is, in turn, entitled to break the law.

As for whistleblowers unhappy with one or another government program, they have other avenues at their disposal than splashing secrets across the front page of the New York Times. The Intelligence Community Whistleblower Protection Act of 1998 shields employees from retribution if they wish to set out evidence of wrongdoing. When classified information is at stake, the complaints must be leveled in camera, to authorized officials, like the inspectors general of the agencies in question, or to members of congressional intelligence committees, or both. Neither the New York Times nor any other newspaper or television station is listed as an authorized channel for airing such complaints.

Current and former officials who choose to bypass the provisions of the Whistleblower Protection Act and to reveal classified information directly to the press are unequivocally lawbreakers. This is not in dispute. What Section 798 of the Espionage Act makes plain is that the same can be said about the press itself when, eager to obtain classified information however it can, and willing to promise anonymity to leakers, it proceeds to publish the government’s communications-intelligence secrets for all the world to read.


VII

If the Times were indeed to run afoul of a law once endorsed by the American Society of Newspaper Editors, it would point to a striking role reversal in the area of national security and the press.

Back in 1942, the Chicago Tribune was owned and operated by Colonel Robert R. McCormick. In the 1930’s, as Hitler plunged Europe into crisis, his paper, pursuing the isolationist line of the America First movement, tirelessly editorialized against Franklin Roosevelt’s “reckless” efforts to entangle the U.S. in a European war. Once war came, the Tribune no less tirelessly criticized Roosevelt’s conduct of it, lambasting the administration for incompetence and much else.

In its campaign against the Roosevelt administration, one of the Tribune’s major themes was the evils of censorship; the paper’s editorial page regularly defended its publication of secrets as in line with its duty to keep the American people well informed. On the very day before Pearl Harbor, it published an account of classified U.S. plans for fighting in Europe that came close to eliciting an indictment.9 The subsequent disclosure of our success in breaking the Japanese codes was thus by no means a singular or accidental mishap but an integral element in an ideological war that called for pressing against the limits.

During World War II, when the Chicago Tribune was recklessly endangering the nation by publishing the most closely guarded cryptographic secrets, the New York Times was by contrast a model of wartime rectitude. It is inconceivable that in, say, June 1944, our leading newspaper would have carried a (hypothetical) dispatch beginning: “A vast Allied invasion force is poised to cross the English Channel and launch an invasion of Europe, with the beaches of Normandy being the point at which it will land.”

In recent years, however, under very different circumstances, the Times has indeed reversed roles, embracing a quasi-isolationist stance. If it has not inveighed directly against the war on terrorism, its editorial page has opposed almost every measure taken by the Bush administration in waging that war, from the Patriot Act to military tribunals for terrorist suspects to the CIA renditions of al-Qaeda operatives to the effort to depose Saddam Hussein. “Mr. Bush and his attorney general,” says the Times, have “put in place a strategy for a domestic anti-terror war that [has] all the hallmarks of the administration’s normal method of doing business: a Nixonian obsession with secrecy, disrespect for civil liberties, and inept management.” Of the renditions, the paper has argued that they “make the United States the partner of some of the world’s most repressive regimes”; constitute “outsourcing torture”; and can be defended only on the basis of “the sort of thinking that led to the horrible abuses at prisons in Iraq.” The Times’s opposition to the Patriot Act has been even more heated: the bill is “unconstitutionally vague”; “a tempting bit of election-year politics”; “a rushed checklist of increased police powers, many of dubious value”; replete with provisions that “trample on civil liberties”; and plain old “bad law.”

In pursuing its reflexive hostility toward the Bush administration, the Times, like the Chicago Tribune before it, has become an unceasing opponent of secrecy laws, editorializing against them consistently and publishing government secrets at its own discretion. So far, there has been only a single exception to this pattern. It merits a digression, both because it is revealing of the Times’s priorities and because it illustrates how slender is the legal limb onto which the newspaper has climbed.




The exception has to do with Valerie Plame Wilson. The wife of a prominent critic of the administration’s decision to go to war in Iraq, Plame is a CIA officer who, despite her ostensible undercover status, was identified as such in July 2003 by the press. That disclosure led to a criminal investigation, in the course of which the Times reporter Judith Miller was found in contempt of court and jailed for refusing to reveal the names of government officials with whom she had discussed Plame’s CIA status. In the end, Miller told what she knew to the special prosecutor, leading him to indict I. Lewis “Scooter” Libby, an aide to Vice President Cheney, for allegedly lying under oath about his role in the outing of Plame.

The Times has led the pack in deploring Libby’s alleged leak, calling it “an egregious abuse of power” equivalent to “the disclosure of troop movements in wartime,” and blowing it up into a kind of conspiracy on the part of the Bush administration to undercut critics of the war. That its hysteria over the leak of Plame’s CIA status sits oddly with its own habit of regularly pursuing and publishing government secrets is something the paper affects not to notice. But if the Plame case reveals a hypocritical or partisan side to the Times’s concern for governmental secrecy, it also shows that neither the First Amendment nor any statute passed by Congress confers a shield allowing journalists to step outside the law.

The courts that sent Judith Miller to prison for refusing to reveal her sources explicitly cited the holding in Branzburg v. Hayes (1972), a critical case in the realm of press freedom. In Branzburg, which involved not government secrets but narcotics, the Supreme Court ruled that “it would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on . . . the reporter to violate valid criminal laws,” and that “neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.”

The Plame affair extends the logic of Branzburg, showing that a journalist can be held in contempt of court when the unauthorized disclosure of intelligence-related information is at stake.10 Making this episode even more relevant is the fact that the classified information at issue—about which Judith Miller gathered notes but never published a single word, hence doing no damage herself to the public interest—is of trivial significance in comparison with disclosure of the NSA surveillance program, which tracks the surreptitious activities of al-Qaeda operatives in the U.S. and hence involves the security of the nation and the lives of its citizens. If journalists lack immunity in a matter as narrow as Plame, they also presumably lack it for their role in perpetrating a much broader and deadlier breach of law.




“Unauthorized disclosures can be extraordinarily harmful to the United States national-security interests and . . . far too many such disclosures occur,” said President Clinton on one occasion, adding that they “damage our intelligence relationships abroad, compromise intelligence gathering, jeopardize lives, and increase the threat of terrorism.” To be sure, even as he uttered these words, Clinton was in the process of vetoing a bill that tightened laws against leaking secrets. But, his habitual triangulating aside, he was right and remains right. In recent years a string of such devastating leaks has occurred, of which the NSA disclosure is at the top of the list.

By means of that disclosure, the New York Times has tipped off al Qaeda, our declared mortal enemy, that we have been listening to every one of its communications that we have been able to locate, and have succeeded in doing so even as its operatives switch from line to line or location to location. Of course, the Times disputes that its publication has caused any damage to national security. In a statement on the paper’s website, Bill Keller asserts complacently that “we satisfied ourselves that we could write about this program . . . in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record.” In his book, James Risen goes even further, ridiculing the notion that the NSA wiretapping “is critical to the global war on terrorism.” Government officials, he writes, “have not explained why any terrorist would be so naïve as to assume that his electronic communication was impossible to intercept.”

But there are numerous examples of terrorists assuming precisely that. Prior to September 11, Osama bin Laden regularly communicated with top aides using satellite telephones whose signals were being soaked up by NSA collection systems. After a critical leak in 1998, these conversations immediately ceased, closing a crucial window into the activities of al Qaeda in the period running up to September 11.

Even after September 11, according to Risen and Eric Lichtblau in their December story, terrorists continued to blab on open lines. Thus, they wrote, NSA eavesdropping helped uncover a 2003 plot by Iyman Faris, a terrorist operative, who was apprehended and sentenced to 20 years in prison for providing material support and resources to al Qaeda and conspiring to supply it with information about possible U.S. targets. Another plot to blow up British pubs and subways stations using fertilizer bombs was also exposed in 2004, “in part through the [NSA] program.” This is the same James Risen who blithely assures us that terrorists are too smart to talk on the telephone.

For its part, the New York Times editorial page remains serenely confident that the problem is not our national security but the overreaching of our own government. Condescending to notice that the “nation’s safety is obviously a most serious issue,” the paper wants us to focus instead on how “that very fact has caused this administration and many others to use it as a catch-all for any matter it wants to keep secret.” If these are not the precise words used by Colonel McCormick’s Tribune as it gave away secrets that could have cost untold numbers of American lives, the self-justifying spirit is exactly the same.




We do not know, in our battle with al Qaeda, whether we have reached a turning point like the battle of Midway (whose significance was also not fully evident at the time). Ongoing al-Qaeda strikes in the Middle East, Asia, and Europe suggest that the organization, though wounded, is still a coordinated and potent force. On January 19, after having disappeared from view for more than a year, Osama bin Laden surfaced to deliver one of his periodic threats to the American people, assuring us in an audio recording that further attacks on our homeland are “only a matter of time. They [operations] are in the planning stages, and you will see them in the heart of your land as soon as the planning is complete.” Bin Laden may be bluffing; but woe betide the government that proceeds on any such assumption.

The 9/11 Commission, in seeking to explain how we fell victim to a surprise assault, pointed to the gap between our foreign and domestic intelligence-collection systems, a gap that over time had grown into a critical vulnerability. Closing that gap, in the wake of September 11, meant intercepting al-Qaeda communications all over the globe. This was the purpose of the NSA program—a program “essential to U.S. national security,” in the words of Jane Harman, the ranking Democratic member of the House Intelligence Committee—the disclosure of which has now “damaged critical intelligence capabilities.”

One might go further. What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism. If information about the NSA program had been quietly conveyed to an al-Qaeda operative on a microdot, or on paper with invisible ink, there can be no doubt that the episode would have been treated by the government as a cut-and-dried case of espionage. Publishing it for the world to read, the Times has accomplished the same end while at the same time congratulating itself for bravely defending the First Amendment and thereby protecting us—from, presumably, ourselves. The fact that it chose to drop this revelation into print on the very day that renewal of the Patriot Act was being debated in the Senate—the bill’s reauthorization beyond a few weeks is still not assured—speaks for itself.

The Justice Department has already initiated a criminal investigation into the leak of the NSA program, focusing on which government employees may have broken the law. But the government is contending with hundreds of national-security leaks, and progress is uncertain at best. The real question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate secret and what is not. Like the Constitution itself, the First Amendment’s protections of freedom of the press are not a suicide pact. The laws governing what the Times has done are perfectly clear; will they be enforced?

GABRIEL SCHOENFELD is the senior editor of COMMENTARY. His previous articles on intelligence matters in these pages include “Could September 11 Have Been Averted?” (December 2001), “How Inept is the FBI?” (May 2002), and “What Became of the CIA” (March 2005).

1 State of War: The Secret History of the CIA and the Bush Administration. Free Press, 240 pp., $26.00.

2 The non-partisan status of the Congressional Research Service has been called into question in this instance by the fact that the study’s author, Alfred Cumming, donated $1,250 to John Kerry’s presidential campaign, as was reported by the Washington Times.

3 What the U.S. government was doing, furthermore, differed little if at all from what it had done in the past in similar emergencies. “For as long as electronic communications have existed,” as Attorney General Alberto Gonzalez has pointed out, “the United States has conducted surveillance of [enemy] communications during wartime—all without judicial warrant.”

4 David Kahn concludes in The Codebreakers (1967) that in part, “the Japanese trusted too much to the reconditeness of their language for communications security, clinging to the myth that no foreigner could ever learn its multiple meanings well enough to understand it properly. In part they could not envision the possibility that their codes might be read.”

5 In January 2001, a decade-and-a-half after his release, and following a campaign on his behalf by Senator Daniel Patrick Moynihan, Morison was granted a full pardon by President Bill Clinton on his final day in office.

6 If Franklin continues to cooperate with the authorities, his sentence will be reviewed and probably reduced after the trial of Rosen and Weissman.

7 According to Jon Friedman’s online Media Web, the Times’s publisher, Arthur Sulzberger, Jr., also met with President Bush before the NSA story was published.

8 “The Espionage Statutes and Publication of Defense Information,” Columbia Law Review, Vol. 73., No. 5., May 1973.

9 If the Japanese were not paying close attention to American newspapers, the Germans were. Within days of Pearl Harbor, Hitler declared war on the United States, indirectly citing as a casus belli the American war plans revealed in the Tribune.

10 Whether Plame was in fact a secret agent—according to USA Today, she has worked at CIA headquarters in Langley, Virginia since 1997—remains an issue that is likely to be explored fully if the Libby case proceeds to trial.

Personally, I think this paper presents a clear-cut case for an investigation of the New York Times and the source of the leak. Wouldn't you agree?

[Ustwo]

Originally Posted by stevo

Personally, I think this paper presents a clear-cut case for an investigation of the New York Times and the source of the leak. Wouldn't you agree?

I did find the tie in with the Palm case very amusing. But remember the press is NOT biased

[alpha phi]

Yup!!.....
Kill the messenger that tells "we the people" what our goverment
is doing behind our back.
Thou shalt not report our crimes sayeth the lord.

What's the difference between the goverment and the mafia again?

[stevo]

Originally Posted by alpha phi

Yup!!.....
Kill the messenger that tells "we the people" what our goverment
is doing behind our back.
Thou shalt not report our crimes sayeth the lord.

What's the difference between the goverment and the mafia again?

And thats your critical-thought response to the paper? Perhaps you missed some of the more poignant paragraphs. A paper as well written and in-depth as this and your response is such. I have to doubt you read the whole thing.

[alpha phi]

Just to expand on this...

let's take a hypothecial situation
Let's say the goverment is opereating
detainment camps for citizens (political prisoners)
Protestors, right wing millita's, ect.
Remember now, this is a hypothecial situation, and we are assumeing it is true.
Now a newspaper sneakes into the camp takes pictures
writes a story, publishes the photos, and classified documents
that set up this detainment program.

Is that newspaper now commiting espionage?
or they protecting the people?

The same holds true for this hypothecial situation, and
the wire tapping story.....If we are to be consistant in our thinking

[stevo]

Lets not take a hypothetical situation and focus on the real-life situation at hand first. Re-read the paper and I'll be back on monday.

[alpha phi]

Originally Posted by stevo

Lets not take a hypothetical situation and focus on the real-life situation at hand first.

Yea....Let's pretend the goverment has our best intrests at heart

This article (and your comment) simply seeks to reframe the dicusion away
from the reality of illegal wiretaps and on to espionage.

Well written spin is just more spin

[stevo]

Originally Posted by alpha phi

Yea....Let's pretend the goverment has our best intrests at heart

This article (and your comment) simply seeks to reframe the dicusion away
from the reality of illegal wiretaps and on to espionage.

Well written spin is just more spin

I'm still not so sure you read it. So first let me ask: Did you read the whole thing or just assume it is nothing more than a partisan piece of spin?

Now I'll disagree with your statement and tell you that the paper does in fact discuss the legality of the wire taps. I started this post asking for people with legal background to share their thoughts on the paper. You obviuosly have none.

[alpha phi]

Originally Posted by stevo

I'm still not so sure you read it. So first let me ask: Did you read the whole thing or just assume it is nothing more than a partisan piece of spin?

Now I'll disagree with your statement and tell you that the paper does in fact discuss the legality of the wire taps. I started this post asking for people with legal background to share their thoughts on the paper. You obviuosly have none.

Yes I have read it, and yes it is more spin.
I wouldn't say partisan spin because both parties
seem intent to keeping goverment secret from the people,
and expanding goverment power.

And now the justice dept. is investigating the wiretaps
Because of the NYT article.

So do I need a Masters in criminal justice to know right from wrong?

[pig]

stevo,

I read the vast majority of the article / paper. In some places I skipped a few words, but I read the whole thing. I'll have to think about it a little bit - but the question I keep coming back to is why not use the methods that are in place to monitor these communications? I've wondered that a few times - the only logical reason I can come up with is a desire to limit a paper trail. I'm not saying that's automatically bad, although it seems it could obviously be abused. The other thought is a curiousity if our government is concerned over infiltration of its intelligence ranks by Al-Queda operatives, etc. Regardless, from what I understand much of the older cases the article points to are most likely moot, as they would be settled using out-of-date legislation. For the Plame reference, it seems that the contention woudl be that the NSA program involves revealing an illegal surveillance program, the Plame leak itself was illegal.

So basically, I think it hinges around the legality of the monitoring program. I don't think the president's interpretation of the FISA statute really means shit; its the actual law that matters. This whole nonsense with signing his interpretation of the laws for torture and so forth is pretty weak. I wish I could say that I interpret stealing other's people's shit as not being illegal, so theft doesn't apply to me. That would be great.

Hmmm... as far as it being a partisan piece, well it's obviously fairly biased towards the position of the administration, but an interesting read.

[Elphaba]

My ability to be neutral concerning neoconservative beliefs ended with PNAC and the notion of preemptive war.

Commentary is America’s premier monthly magazine of ideas, the publication that those who shape public opinion turn to first for in-depth analysis of politics, religion, foreign affairs, social policy, culture, and the arts, as well as for outstanding reviews of current books. The magazine’s letters section is a world-renowned forum for unfettered debate about the most pressing issues of the day. Commentary has been a major force in shaping American political and cultural life since its founding in 1945. The magazine is primarily known as the intellectual home of the neoconservative movement, a brand of skeptical thought that emerged as a reaction to the anti-American radicalism of the 1960’s and is today vitally engaged in the preservation and spread of democracy and Western values. As part of its historical mission, Commentary has always taken a special interest in Jewish issues and the state of Israel.

[Ustwo]

Originally Posted by Elphaba

My ability to be neutral concerning neoconservative beliefs ended with PNAC and the notion of preemptive war.

Don't worry, maybe truthout will run it for you and you can read it there

[Willravel]

Originally Posted by Ustwo

Don't worry, maybe truthout will run it for you and you can read it there

Wow, that amount of relevant content rivals an encyclopedia!


After reading the whole article, every word, it's obvious that it's just a reiteration of what's already been said. Becuase it is so easy to get wire taps through the FISA court, and the executive branch (whoever is responsible) still went around it, there is still only one conclusion: the wire taps are illegal. Bush continues to say that FISA would have wasted time, when the average warrent takes less than a few hours with proper documentation ready.

The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year provided it is only for foreign intelligence information [2a]; targeting foreign powers as defined by 50 U.S.C. §1801(a)(1),(2),(3) [4] or their agents; and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.

Originally Posted by TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1801

(a) “Foreign power” means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.

Bam, illegal.

Any governmentally classified information that outlines or proves illegal actions by said government cannot remain classified. It is the responsibility of every free thinking man woman and child to ensure that their govnermnet acts legally and ethically. The Times should be applauded for their efforts in our democracy, not dismissed as traitors by those who welcome tryany.

Edit: In case it still isn't clear, here's a link to US CODE: Title 50, Chapter 36 -- Foreign Intelligence Surveillance

Please read it, as I have, in order to understand what's really going on.

[Elphaba]

Gosh, us2, thanks for the recommendation. No "Commentary" link yet, but I did find this interesting article:

TruthOut Link

NSA Spying Myths
By David Cole
The Nation

20 February 2006 Issue

"When the President does it, that means that it is not illegal." So Richard Nixon infamously defended his approval of a plan to engage in warrantless wiretapping of Americans involved in the antiwar movement in the 1970s. For thirty years Nixon's defense has stood as the apogee of presidential arrogance. But of course Nixon was proved wrong. The wiretapping plan was shelved when J. Edgar Hoover, of all people, objected to it. Nixon's approval of it was listed in the articles of impeachment. Nixon learned the hard way that Presidents are not above the law.

George W. Bush appears not to have learned the lesson. His defense of the National Security Agency's warrantless wiretapping of Americans resurrects the Nixon doctrine, with one modification. For Bush, "when the Commander in Chief does it, it is not illegal." In a memo to Congress, the Administration argued that the Commander in Chief may not be restricted in the "means and methods of engaging the enemy," and that Bush is thus free to wiretap Americans without court approval in the "war on terror" even if Congress has made it a crime. This assertion of un-checkable executive power is just one of five myths the Administration has propagated in a PR blitz designed to convince the public of a transparently unconvincing argument. As Congress readies for hearings on the subject, here's a primer on the spying debate.

Myth 1: Following existing law would require the NSA to turn off a wiretap of an al Qaeda member calling in to the United States.

Variations on this theme appear every time the Administration defends the NSA spying program. The suggestion is that the Foreign Intelligence Surveillance Act (FISA) would interfere with the President's ability to monitor al Qaeda members' calls when it's most important to do so. There's only one problem: FISA would not require the tap to be turned off. First, FISA does not apply at all to wiretaps targeted at foreign nationals abroad. Its restrictions are triggered only when the surveillance is targeted at a citizen or permanent resident of the United States, or when the surveillance is obtained from a wiretap physically located within the United States. If the NSA is listening in on an al Qaeda member's phone in Pakistan, nothing in FISA requires it to stop listening if that person calls someone in the United States. Second, even when FISA is triggered, it does not require the wiretap to be turned off but merely to be approved by a judge, based on a showing of probable cause that the target is a member of a terrorist organization. Such judicial approval may be obtained after the wiretap is put in place, so long as it is approved within seventy-two hours.

Myth 2: Congress approved the NSA spying program when it authorized military force against al Qaeda.

This argument cannot be squared with existing law, which provides that even when Congress declares war - a much more formal and grave step than an authorization to use force - the President has only fifteen days to conduct warrantless surveillance. The al Qaeda authorization says not one word about wiretapping Americans. In addition, when asked why the Administration did not seek to amend FISA to permit this program, the Attorney General explained that he consulted with several members of Congress but that they told him it would be "difficult, if not impossible," to obtain permission. You can't argue that you didn't ask because Congress would have said no, but that without asking, and without Congress saying so, it actually said yes.

Myth 3: Bush informed Congress of the NSA program.

"If I wanted to break the law, why was I briefing Congress?" Bush asked in a speech on the spying issue. His Administration claims that it informed isolated members of Congress twelve times, but there is no evidence that it told those members either that it believed its actions were authorized by the use-of-force resolution or that it was asserting executive power to violate criminal law. In addition, the briefings were classified, and members were prohibited from repeating to other members anything that was said there. So the answer to Bush's question is that he may have "informed Congress" precisely to provide cover in case his secret lawbreaking ever became public, but he did so in a manner that insured Congress could not take action against him.

Myth 4: The courts have upheld inherent presidential power to conduct warrantless wiretapping for foreign intelligence purposes.

Bush's defenders claim that every court to address the subject has said the President has inherent authority to conduct warrantless wiretapping for foreign intelligence-gathering purposes. What they do not say is that those courts were addressing presidential authority before Congress regulated such activity by enacting FISA in 1978. The fact that Presidents may have "inherent" authority to take action in the absence of contrary Congressional intent does not mean they have un-checkable authority to do so once Congress has prohibited the conduct. That argument would mean FISA is unconstitutional, and no court has so ruled.

Myth 5: The President as Commander in Chief cannot be regulated by Congress.

The Administration's ultimate defense is that even if Bush broke the law, his constitutional authority as Commander in Chief permits him to do so at his discretion. According to the Justice Department, Congress cannot limit his choice of how to "engage the enemy." This rationale is not limited to wiretapping. On the same theory, Justice argued in 2002 that he could order torture despite a criminal statute to the contrary. It is that theory that Bush was presumably invoking when, in signing the amendment barring "cruel, inhuman and degrading treatment" of terrorism suspects, he said he would interpret it "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief."

Bush tried this theory out on the Supreme Court in the Guantanamo cases, when he argued that it would be an unconstitutional intrusion on his Commander in Chief powers to extend habeas corpus review to Guantanamo detainees. Not a single Justice on the Court accepted that radical proposition. But that hasn't stopped Bush from asserting it again. After all, when you get to say what the law is, what's a contrary Supreme Court precedent or two?

[dksuddeth]

the main real point is that anyone who knowingly divulges classified information should be prosecuted, HOWEVER, if that 'whistleblower' is revealing something that is illegal then they should NOT be prosecuted.

It's like this, if a bystander calls 911 for an arrmed robbery, you don't arrest the 911 caller.

[stevo]

Originally Posted by willravel

After reading the whole article, every word, it's obvious that it's just a reiteration of what's already been said. Becuase it is so easy to get wire taps through the FISA court, and the executive branch (whoever is responsible) still went around it, there is still only one conclusion: the wire taps are illegal. Bush continues to say that FISA would have wasted time, when the average warrent takes less than a few hours with proper documentation ready.

Wow only a few hours. How long do you think these phone conversations last? By the time a few hours has past, the phone conversation has been over, for well, a few hours.

[stevo]

Originally Posted by dksuddeth

the main real point is that anyone who knowingly divulges classified information should be prosecuted, HOWEVER, if that 'whistleblower' is revealing something that is illegal then they should NOT be prosecuted.

It's like this, if a bystander calls 911 for an arrmed robbery, you don't arrest the 911 caller.

Its not that the 'whistleblower' should be arrested for 'blowing the whistle' but there are proper channels to go through when dealing wth classified information. YOu don't run to the press with that kind of info. Doing that is irresponsible when it comes to national security.

As for whistleblowers unhappy with one or another government program, they have other avenues at their disposal than splashing secrets across the front page of the New York Times. The Intelligence Community Whistleblower Protection Act of 1998 shields employees from retribution if they wish to set out evidence of wrongdoing. When classified information is at stake, the complaints must be leveled in camera, to authorized officials, like the inspectors general of the agencies in question, or to members of congressional intelligence committees, or both. Neither the New York Times nor any other newspaper or television station is listed as an authorized channel for airing such complaints.

[Rekna]

Originally Posted by stevo

Wow only a few hours. How long do you think these phone conversations last? By the time a few hours has past, the phone conversation has been over, for well, a few hours.

couldn't he have listened and then got the warrents after the fact? I don't see how that would have slowed him down in the least.....

[pig]

Originally Posted by stevo

Its not that the 'whistleblower' should be arrested for 'blowing the whistle' but there are proper channels to go through when dealing wth classified information. YOu don't run to the press with that kind of info. Doing that is irresponsible when it comes to national security.

stevo,

I did some googling on the Intelligence Community Whistleblower Protection Act - I'll post sources later maybe, but I'm in something of a rush. From what I can see, it looks like the federal intelligence employee would report the issue to the Office of the Inspector General or a similar entity. If the OIG found the issue credible, they would report the issue to the Intelligence Committees. I know that both of these comittees are currently chaired by the Republican party, and I believe I heard that the heads of these committees are the very same people who the Executive consulted with concerning the program in the first place.

From what I have read, the paper that broke the story sat on it a year. My guess is that it may have been reported internally through the OIG / intelligence committees, or it was obvious that the information had made its way as far as it was going to. Even if it wasn't reported through the OIG, the people to whom it would have been reported were already in possession of the knowledge. If the NSA employees / journalists / whomever else felt they had participated in / uncovered illegal activities - what recourse would they have if the information was stalled in committee?

Let's assume that we're not talking about wiretapping, but we're talking about putting balloons full of hydrochloric acid into the rectums of irish children of ages 10-12, abducted from portions of the Appalachian Mountains, as part of some secret government program to test the resistance of Celtic sphincter tissue to chemically aggressive environments. Its headed under the NSA/FBI. I think it's absolutely clear that such a program would be unethical and illegal, where you may not feel the wiretapping issue is as clear cut. If this information has been reported to the Intelligence Committees via the established channels, and they are sitting on it...do the people with knowledge of the program have an ethical responsibility to bring light to the issue? Is the government protected from responsbility for illegal actions, as long as they are deemed classified in nature?

If you say the government is protected, I don't understand how that is consistent with a conservative position of limited government with limited federal powers. If you say it is not, then the issue involving the wiretapping story centers not around how the information was broken, but around whether or not the program is illegal. At least, it seems that way to me.

[archpaladin]

Its not that the 'whistleblower' should be arrested for 'blowing the whistle' but there are proper channels to go through when dealing wth classified information. YOu don't run to the press with that kind of info. Doing that is irresponsible when it comes to national security.

You're operating under the assumption that the proper channels are not held responsible by those you are blowing the whistle on. And don't forget that one of the primary purposes of the media is to act as a watchdog on executive power. So when uncovering information like this, we have either:

1) The "proper channels" is the media itself. Our current situation.

2) The proper channel is .... what else? Some government oversight committee established by the government itself? Pardon me if I doubt the ability of the government to keep itself in check when the public doesn't know what's going on.

[stevo]

Originally Posted by Rekna

couldn't he have listened and then got the warrents after the fact? I don't see how that would have slowed him down in the least.....

So whats the point? You want a public record of who what where when and why? Why don't we just call the suspected terrorists and personally tell them their phone calls are being tapped? And if you want a warrent with all that information blacked out so al-qaeda won't know which calls were listened in on, then what good is the warrent for public record? Its a matter of broadcasting to the world what is going on or keeping it secret to continue to gather intel.

[roachboy]

i have read the op article a couple of times now and frankly find it to be a really weak piece of writing. the central problem is the shift it makes between sections 2 and 3.

here:

The debate over the legality of what the President did remains unresolved, and is a matter about which legal minds will no doubt continue to disagree, largely along partisan lines. What about the legality of what the Times did?


III

Although it has gone almost entirely undiscussed, the issue of leaking vital government secrets in wartime remains of exceptional relevance to this entire controversy, as it does to our very security. There is a rich history here that can help shed light on the present situation.

basically, if you find this article to be interesting at all, you have to buy this shift.
it is not obvious logically--in fact, it seems to me little more than a thinly papered-over non sequitor.
why?
the question of whether the bush administration--a political formation--is bound to act within the law or not ***is not the same*** as that of whether the ny times did.

reverting for a moment to the realm of political theory: if you somehow manage to take john locke's 2nd treatise on government seriously (it is not easy), you find that locke defines tyranny as the type of power exercized by a government in violation of its own laws. beneath this is the question of how strictly one should understand the notion of popular soveregnity at issue in this is the following: the state (switching terms here) is the origin of law--but it fashions law because it (at the level of sentences at least) rests of the authority delegated to it from the people. this is important because this relation poses limits to state action--the state cannot operate outside the laws that circumscribe it and its actions--as the origin of law, there would be a constant danger that the state could arrogate to itself a position that is at once inside and outside it (as a function of the ambivalent position occupied by a material source relative to that which flows from it). it is this threshold that, in the end, distinguishes a legitimate government from tyranny (monarchy in the context of locke, dictatorship in the contemporary context).

the typical counterargument that you see from the administration rests entirely on the notion of the state of emergency or war. the defenses that the administration has floated for tis actions lean heavily on the legal theory of carl schmitt (this is so consistent a feature of the defenses that it cannot be an accident---i think john yoo is heavily influenced by schmitt--the folk who repeat this style of argument probably never read yoo's famous memo, and if they did, did not check the references--but that is speculative)---schmitt was a german legal theorist whose better-known works were published in the 1920s---he was opposed to democracy in principle, arguing that it was incapable of acting in a state of emergency or war with adequate speed--what was needed was a Leader who would emerge through the context of a state of emergency (suspension of ordinary law) and whose function would be legitmate,for schmitt, because the Leader as able to make Decisions--which, he argues, democracies cannot do. for schmitt, democracies are hopelessly caught up in the abstract--where the Leader can deal with the concrete---democracy is subject to interminable debate (a correlate of its abstractness), where the Leader/dictator can Act---the Leader, in a state of exception (emergency, war) embodies the nation in a situation that requires the suspension of popular sovereignty--democracy threatens the "nation" (whatever the hell that is) with fragmentation in such a context.

these two positions are obviously antithetical: locke is arguing for popular sovereignty and claims that the idea that a governmental apparatus derives its legitmacy from the people, from their delegation of power to it, means that it canot operate outside its own legal framework without becoming a tyranny. schmitt is a theory of dictatorship that uses a notion of the exceptional state (of emergency, of war) to legitimate precisely that kind of government. the center of this relationship is, self-evidently, the question of the "exceptional state" or state of emergency.

so the question of whether the administration did or did not violate the law in its various adventures legitimated via their favorite fiction, the "war on terror" comes down to a question of the relation of the state apparatus to the legal system. this relation is fundamental to the legal and political regime itself.

the question of actions undertaken by the ny times operates entirely within the existing legal and political order: as a corporation, the paper is not involved in any way with the question of the balance of power that will obtain at the center of this legal and political order if there is a criminal aspect to their actions in the plame case (to rehearse the terms of the article) then it is a matter of application of law, not one of the relation between law itself and the state that originates it. these registers are different in kind.

in the articles, this basic distinction is papered over via a simple assertion of "relevance" backed by nothing at all--it is a kind of weak writing and weak reasoning unworthy of a university undergraduate paper.

the problem with this is that this transition is asolutely necessary for the article, which follows this bait and switch down a curious logical path to end up in an attack on the ny times. rather than make an actual argument for the linkage of two matters that are, to my mind, unrelated, what the writer does it begin piling on the conservative affirmations of faith as you move into the second section of the article--cheap devices like the assertion (also grounded in nothing) of some kind of anti-bush administration biais in the times--piles of assertions that the writer uses as a substitute for substantive argumentation.

the conclusion of the piece appears to be: the problem here is not that the bush administration appears to have broken the law in a whole host of ways and tried to justify all by referring to its "war on terror"-the problem is, rather, that the press (a generalization from the nyt) reports on these violations. the justification for it is a rather bland "the law is the law"--but leaving it at this would create all kinds of trouble for such logic as there is in the article--so this gets blurred into typical conservative whining about the "hostility" of the press to the poor bush administration.

correlate: my car will not start so could you plunge the toilet?

what's kinda funny in this is that i remember the tenor of the right's endless attacks on the clinton administration for what it took to be its various violations of law: all most of them, focus was on the lockean position. now that the bushpeople are at the helm, the focus shifts to schmitt. this would be bizarre were we not, by now, accustomed to such from the curious world of right ideology.

the upshot of this kind of article is that conservative political thought systematically uses the language of matters of principle to talk about matters of tactics.

this is not the kind of reasoning that a traditional conservative movement would engage with: while one might disagree with more traditional conservatism, at least it is able to distinguish principle from tactics. the american right appears to be unable to do so, and in that inability positions itself as something quite dangerous--a kind of authoritarian movement that speaks to itself, about itself, in the language of the right, but is in fact different, and fundamentally different, from traditional right formations. at the level of legal theory, the administration's flaks in the right press have embraced a legal philosophy central to the rise of fascism without realizing that it is doing so (so it seems--dont know this for sure---things only get worse if you assume that "they" know about schmitt and have embraced his legal philosophy consciously.)

at the same time, the writer of the article sees in the exposing of such violations of law the "real problem"--and so you get a argument for de facto censorship---reporting on certain types of violations of law carried out by an admnistration can itself invovle violation of the law--the writer appears to think that unless the press is silenced, any prosecution of the administration for its actions is hypocritical. this is absurd.

what the article presents is an argument for authoritarian government.
such case for the bushpeople's violations of law as it presents are a subset of this larger argument.

[stevo]

Originally Posted by pigglet

stevo,

From what I have read, the paper that broke the story sat on it a year. My guess is that it may have been reported internally through the OIG / intelligence committees, or it was obvious that the information had made its way as far as it was going to. Even if it wasn't reported through the OIG, the people to whom it would have been reported were already in possession of the knowledge. If the NSA employees / journalists / whomever else felt they had participated in / uncovered illegal activities - what recourse would they have if the information was stalled in committee?

If you say the government is protected, I don't understand how that is consistent with a conservative position of limited government with limited federal powers. If you say it is not, then the issue involving the wiretapping story centers not around how the information was broken, but around whether or not the program is illegal. At least, it seems that way to me.

To start with limited government and limited federal powers; sure I agree with that, but its not like you can just apply that to every sector of the government as a whole. When it comes to the security of this nation and the poeple in it the president should (and does) have the authority to do what is necessary to protect this country and her citizens.

And the way I see the leak as it pertains to the wiretapping story isn't some whistleblower concerned about wrongdoing. The intelligence committee is headed by republicans, but it is a bipartisan committee. There are 8 republicans and 7 democrats. They all received the same info from the administration. What I think this all comes down to is a democrat on the committee (imo Feinstein) seeing an opportunity to leak some classified info that she (or he) knows will cause an outcry against bush in just another attempt by powerless democrats to bring down the bush administration. And, as expected, people take the bait and run. But in the end nothing will come of it but the destruction of an intelligence gathering program.

Right after 9-11 there was a huge outcry. How could we not have the information. How could this have happened. Now when we have plans in place and are taking steps to keep it from happening again theres a huge outcry. To quote Joe Quimby, "You people are a bunch of pickled mush-heads." (followed by applause from the people).