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May 22, 2006

We're Ruled By Morons, Part the Infinite

Oh, for an Attorney General who can actually understand the Bill of Rights:

The government has the legal authority to prosecute journalists for publishing classified information, Attorney General Alberto R. Gonzales said yesterday...
Mr. Gonzales said that the administration promoted and respected the right of the press that is protected under the First Amendment. "But it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity," he said. "And so those two principles have to be accommodated."

Now, let's go to the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Hmmm. It says no law abridging the freedom of the press. It doesn't say, "no law abridging the freedom of the press, unless Attorney General Alberto Gonzales somehow loses the ability to parse unambiguous subordinate clauses in the Bill of Rights and says that there is." Funny about that.

I think I've noted before that January 2009 can't come soon enough. Let me reiterate that idea here now. My dog apparently has a better grasp of the rights of the press under the Constitution than does our nation's top law enforcement officer. It's not too much to ask for an Attorney General who knows our Constitution better than one of my domestic quadrupeds.

Posted by john at May 22, 2006 01:42 PM

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Comments

Taeyoung | May 22, 2006 02:09 PM

It's not too much to ask for an Attorney General who knows our Constitution better than one of my domestic quadrupeds.

No, it's not, and he does. For one thing, both slander and copyright law operate to infringe the freedom of the press -- in the case of slander, there is a "malice" requirement (not quite what it sounds like) that has developed to accomodate the competing interests with respect to public figures (in effect, for the benefit of the press). Much as the AG says:

"And so those two principles have to be accommodated."

The notion that a member of the press is permitted to violate the criminal code when the rest of us may not is, frankly, potty. If there is an issue there, it is with the criminal code being overbroad, not with the first amendment being read pragmatically, rather than absolutely. We've read it that way for years, and the AG's attitude here is not exactly novel.

Taeyoung | May 22, 2006 02:11 PM

I meant libel. D'oh.

Hugh Casey | May 22, 2006 02:16 PM

Actually, I think that the AG understands the Bill of Rights quite well.

I just don't think that he, or those he works for in this administration, AGREE with them. And this makes me afraid.

SAP | May 22, 2006 02:20 PM

Yep, I'm just waiting for this president to appoint his dog to the Cabinet. The it really would be just like old times.

Bearpaw | May 22, 2006 02:21 PM

"But it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity ..."

I would love to see the federal government to go after criminal activity. Unfortunately, the current Administration is -- understandably, I suppose -- far more interested in pursuing comparitively minor criminal activity by others than major criminal activity by themselves.

They want to prosecute people for yelling "Fire!" in a crowded theatre ... because they're worried that once the crowd realizes that there is a fire, they might also realize who's holding the flamethrowers.

John Scalzi | May 22, 2006 02:22 PM

Taeyoung:

Crap. Granted there are specific (and very small) restrictions on what the press may write, based on the truth value of the material. However, the libel restrictions (which per Times v. Sullivan are very liberal in this country), haven't the slightest bit of relevance to what Gonzales is discussing. He's discussing his ability to restrict reporters from writing about information that is true but secret.

"We've read it that way for years, and the AG's attitude here is not exactly novel."

His attitude may not be novel, but it is wrong. And as for this being the way we've read it for years, I call bullshit on that. Allow me to quote from Geoffrey Stone, former head of University of Chicago Law School -- which, as the law school that spawned Scalia, is not exactly known as a liberal hotbed -- and an expert on constitutional law:

Should the United States criminally punish the press for publishing classified information? This inquiry poses a prospect unprecedented in American history. For more than 215 years, the United States has managed to flourish in the absence of any federal legislation directly prohibiting the press from publishing government secrets. The absence of such legislation is no accident.

Maybe I'm foolish here, but I believe Geoffrey Stone more on this matter than you.

Now, you were saying?

PeterP | May 22, 2006 02:26 PM

True, but in fairness, how many dogs are MCSE's?

Taeyoung | May 22, 2006 02:29 PM

And you were saying:

It doesn't say, "no law abridging the freedom of the press, unless Attorney General Alberto Gonzales somehow loses the ability to parse unambiguous subordinate clauses in the Bill of Rights and says that there is." Funny about that.

Strictly speaking, I suppose it's actually no law abridging the freedom of the press unless a court is persuaded that there's a countervailing interest. But either way, the "unambiguous subordinate clause" here is not actually all that unambiguous -- courts have found ambiguity enough there.

It's no more unambiguous than the rest of the first amendment, where we're granted freedom of speech (textually unambiguously) but where everyone knows that freedom has been limited.

RooK | May 22, 2006 02:32 PM

I find it extremely discomforting to think that a sitting government can slap a "classified" label on anything it finds politically inconvenient to squealch public awareness of it. If there were some objective measure for assessing the classifiability of information - legitimate clandestine operations or military ventures, etcetera - then I'd be OK with a journalist being prosecuted for doing the equivalent of revealing troop movements. You know, much the same way that libel/slander has to turn out to be falsehoods told for harmful effect.

But if it's information revealing that the members of the US government was operating contrary to the laws or interests of the United States, I don't think an errantly-waved classified stamp should be sufficient to hold reporters at bay.

Taeyoung | May 22, 2006 02:32 PM

I should add, though, given your aside re: Scalia, that if this comes to the Supreme Court, it's not an unreasonable guess that Scalia will come out against Gonzalez' interpretation here. Scalia's typically been pretty rigid on his first amendment jurisprudence (from the pieces of it I've seen, leastways).

John Scalzi | May 22, 2006 02:37 PM

Taeyoung:

"But either way, the 'unambiguous subordinate clause' here is not actually all that unambiguous -- courts have found ambiguity enough there."

However, there's been no ambiguity about the ability for the press to publish facts, even if the govenment judges them to be secret. More to the point, there is no ambiguity in the press printing falsehoods, so long as it can be proven the publication was not malicious against a specific person.

What Alberto Gonzales is suggesting is a whole new expansion of governmental restriction on the rights of the press, which has no precedent and which is flatly at odds with what is written in the First Amendement. That is unambiguous.

Taeyoung | May 22, 2006 02:38 PM

And the other thing to point out, re: the quote from Stone, that he is literally correct that:

For more than 215 years, the United States has managed to flourish in the absence of any federal legislation directly prohibiting the press from publishing government secrets.

And indeed, this is the case today. And, frankly, I would hope it's so in the future -- even if I don't think the press is entitled to much more protection than the rest of us, I don't think they ought to be singled out.

Here, at least, I'm fairly certain that prosecutions here would be under longstanding legislation, 18 USC 798, which applies to everyone, not just the press. I am not aware that a press exection has been carved out elsewhere, though this is not exactly my area of specialty, so there may have been.

Taeyoung | May 22, 2006 02:44 PM

Sorry, that should be "press exception." Anyhow. The statute I cite above was introduced in 1951, approximately 160 years after the formation of the United States -- so Stone is surely aware of it, and is thus not referring to its like when he talks about legislation "directly prohibiting the press from publishing government secrets." That's why I think the "directly" qualifier is significant there.

Jason M. Robertson | May 22, 2006 02:47 PM

When I first looked at this thread I thought maybe it was somehow about something ambiguous, like a source shield privilege. It isn't. The way our government keeps secrets is to cordon them by only telling people it has obligated to keep them. Once someone in that system leaks it, they may be prosecuted. Certain evidentiary burdens may be placed with exquisite care on the journalistic side of that relationship. (The journalist can then make a choice about what they see as honorable, though not necessarily an uncoerced one.) The government has no historical or legal recourse to then control or punish a journalist for publishing that information. And the NYT article linked pretty much fisks the AG on this one. Not even close.

Taeyoung | May 22, 2006 02:51 PM

Poking around in the same area (Chapter 37 of Title 18, which is the federal criminal code), I also find 18 USC 797, which explicitly penalises people for "publish[ing]" pictures of classified military installations -- even more explicit! This one is from 1948. I think the use of "publishes" is kind of misleading (this one isn't targeted against the press particularly either), but these are clearly laws that impact the freedom of the press, and from within that 215 yr span Prof. Stone addresses.

CoolBlue | May 22, 2006 03:02 PM

John

Are you arguing that a spy who gets a hold of classified data should be able to escape prosecution by simply publishing the information in a newspaper?

That doesn't sound right to me.

Though I will say that I would not want to see the journalist prosecuted without his or her informant being prosecuted as well.

Both should spend time in the hooskow.

On a chain gang.

Kevin Q | May 22, 2006 03:02 PM

Taeyoung,
In the 50-60 years since those statutes have been enacted, have they ever been used against a member of the press?

I only ask because the rights acknowledged by the Constitution can prevent statutes of general application from applying in specific circumstances - for example, the Free Exercise Clause (religion) can protect a person from having to act contrary to their religious beliefs. (A Seventh-Day Adventist or Orthodox Jew doesn't have to be available to work on their Sabbath in order to get Unemployment.)

K

John Scalzi | May 22, 2006 03:05 PM

Taeyoung:

I would not doubt that may be a law here and there on the books that Gonzales is under the impression he can use to prosecute journalists; he said as much. However, I also equally do not doubt that these laws would be declared unconstitutional if Gonzales were ever stupid enough to actually try to prosecute a journalist with them. And in the meantime, I expect the press would be so energized at this assault on its constitutional rights that it would make the Watergate investigations look like a school board meeting.

CoolBlue:

"Are you arguing that a spy who gets a hold of classified data should be able to escape prosecution by simply publishing the information in a newspaper?"

What? No. However, nor do I think it's at all likely scenario, as the world of high-stakes international espisonage does not typically have as its endgame a spy walking into the offices of the local newspaper with a sheaf of classified documents and then just handing them over.

If you're asking if a newspaper (or other journalistic enterprise) has a right to publish information which has come into its possession regardless of how that information has come into its possession, clearly, I think the answer is yes. Is it obliged to? Not necessarily; there have been times where the press has withheld or delayed publishing a story with sensitive information at the request of the government. I think that's fine.

I think you saying a journalist should be sentenced to a chain gang for doing his or her job is idiotic.

Dan | May 22, 2006 03:06 PM

The interesting thing is the use of the words "go after." It's used as a threat, and I, for one, am pretty tired of this administration and its lackeys using this constant rhetoric.

Kevin Q | May 22, 2006 03:10 PM

Dan,
That's exactly what this administration is doing. They release selective intelligence to make political points, and then seek to punish anybody else who releases secrets to challenge the administration.

If we were talking about troop movements or the location of key leaders, this would be a different conversation. The government does not get to infringe my civil rights just so long as they can keep their actions secret.

K

CoolBlue | May 22, 2006 03:17 PM

Kevin Q

If we were talking about troop movements or the location of key leaders, this would be a different conversation.

So you are saying there are instances in which a journalist should be prosecuted for publishing classified data.

So now its just a matter of deciding what classified data could get a jounalist a room with Bubba.

Not if....

John Scalzi | May 22, 2006 03:19 PM

CoolBlue:

What KevinQ may or may not think and what is allowable under the Constitution are two separate things.

CoolBlue | May 22, 2006 03:33 PM

John

What KevinQ may or may not think and what is allowable under the Constitution are two separate things.

That goes for all of us.

But it still seems that if you were correct, all spies should just simply get journalist credentials. I mean why do all that cloak and dagger stuff and risk getting left out in the cold? Or worse, shot?

Nope.

If I was a spy I'd set up my own publication, do my spy thing, and publish it. Then make sure whoever it is I worked for knew where to find the article.

No fake mustaches, no guns, no fuss, no muss.

Kevin Q | May 22, 2006 03:34 PM

Well, if we're talking about what I think, I think that "Congress shall make no law" means exactly that - when the power of the press meets the power of Congress, the press wins. I believe a plain reading of the Constitution supports the position that the Framers wanted to prevent Congress from ever preventing the publication of any material.

The First Amendment is unique in its construction. It is the only amendment that starts "Congress shall...." I believe that the framers of the Constution understood the power of the press in our battle for independence, and wanted to put nothing in the way of the press from acting that way in the future.

Unfortunately, this reading hasn't been jurisprudence in this country for quite some time. (And I couldn't get my Con Law professor to fall for it, either.) But even in modern jurisprudence, we will protect the rights of the press to do their job and inform the public of things that might interest them.

As somebody pointed out earlier, there have been times in our nation's past when the courts have held that the freedom of press gives way in certain circumstances, such as libel. If there is an immediate, forseeable danger from the printing of troop movements, leader locations, &c., then the courts might do so again. I think they will still be wrong, but it might happen.

K

John Scalzi | May 22, 2006 03:39 PM

Kevin Q:

Interestingly, in the Geof Stone piece I linked to earlier, there was something very similar to this:

At one point in our history Congress seriously entertained the idea of enacting legislation that would have prohibited such publications. It is instructive to recall how Congress addressed the question. Only three weeks after it voted a formal declaration of war under Article I, section 8 of the Constitution, Congress began debate on what would become the Espionage Act of 1917. Although the Act was directed primarily at espionage, the original bill included what we can call the “press” provision. This provision would have made it unlawful in time of war for the press to publish any information that the president declared to be “of such character that it is or might be useful to the enemy.” The proposed provision added that “nothing in this section shall be construed to limit or restrict any discussion, comment, or criticism of the acts or policies of the Government.” Not surprisingly, the press provision provoked heated debate...
When it began to appear that the press provision would go down to defeat, President Wilson made a personal appeal to Congress, stating that the provision was “absolutely necessary to the public safety.” Members of Congress were unpersuaded. On May 31, 1917, the House of Representatives defeated the provision by a vote of 184 to 144, with 36 Democrats joining the Republican opposition. This ended consideration of the press provision for the duration of the war.

Interesting stuff.

Kevin Q | May 22, 2006 03:44 PM

CoolBlue said:

...all spies should just simply get journalist credentials.

Fine by me. Get rid of secrets all together. Secrets only serve to make us less safe. If this administration wasn't so secretive, I think we'd be having a much different conversation.

K

John Scalzi | May 22, 2006 03:50 PM

CoolBlue:

"If I was a spy I'd set up my own publication, do my spy thing, and publish it. Then make sure whoever it is I worked for knew where to find the article."

Inasmuch as being a spy largely depends on being covert, I would personally question the utility of this particular course of action.

Mark K. | May 22, 2006 04:02 PM

"If I was a spy I'd set up my own publication, do my spy thing, and publish it. Then make sure whoever it is I worked for knew where to find the article."

Except for the rather major point that one of the usual goals of intelligence work is not just finding stuff out, but keeping your adversary in the dark about what you do or do not know. A football analogy: suppose the Eagles find out what play the Cowboys are going to use on the next down. They want to capitalize on that knowledge, and if they yell out, "Hey you stupid Cowboys, we know you're doing a play-action fake next!" they won't be able to, because the Cowboys will just call a different play, *and* most likely set to work figuring out how the Eagles got the scoop. There really wouldn't be much advantage to that, for the Eagles.

Brian Greenberg | May 22, 2006 04:05 PM

Come on, guys - this is a slam dunk:

If The New York Times obtained (read: stole) classified information and printed it, then it violated the law and should be punished. Just as I would be if I did the same thing. The sacred title of "journalist" doesn't put anyone above the law. And to suggest that breaking the law is part of a journalist's job is, to coin a phrase, idiotic.

If someone inside the government gave The New York Times classified information, then he/she has violated the law and should be punished. Whether The New York Times should also be punished is unclear to me - Taeyoung, John and Profesor Stone have all made good points above. Even Dr. Stone defines three kinds of secrets, and suggests that we could write a law to punish the press for revealing one of them, but then backs off this premise in the end.

Two other points:
1) We may not like it, but the government absolutely has the right to classify information as it sees fit. Oversight to prevent abuse of this power involves congressional involvement, not public scrutiny (by definition). Democratic senators (like Ms. Pelosi, for instance) have recently pooh-poohed this oversight on the grounds that they weren't allowed to complain to anyone if they disagreed. This strikes me as either a complete lack of responsibility on her part, or the a mistaken assumption that governing can only occur if you can slam your opponent in the press. You are the oversight, Ms. Pelosi. If you don't like it, make your case to change it. Don't stand by with your hands in the air & claim you can't be effective without being able to bring public pressure to bear.

2) The fact that this is unprecedented (as Professor Stone points out) doesn't, in and of itself, mean it's wrong. Until Watergate, the press was very, very forgiving of the White House and other political leaders. They would turn the other cheek on any number of issues. So it doesn't surprise me for a second that there's never been an instance of the press overstepping its bounds.

We lack the perspective to judge, of course, but today's times feel very different to me. Newspapers have printed pictures of spy planes in full color (with the call letters visible). They've disclosed the existence (and at least the general location of) secret prisons. They've given away troop positions in the field. They've reported the name of an undercover CIA agent. And now they've disclosed programs designed to monitor terrorist activities.

It's the popular opinion right now that these programs are illegal, and that their disclosure helps the public good. Dr. Stone gracefully avoids discussing how we know something is illegal until a trial has been held, and just assumes that any government action the press thinks is illegal must in fact, be illegal.

Dr. Stone's thesis appears to be based on the premise that the press has always been able to police itself, so laws that punish them are unnecessary. This seems like a weak premise. What do we do if, in this world of increased competition for ratings and advertising dollars, the press gets more and more bold about publishing secrets? As Gonzalez said, "these two principles have to be accommodated."

Taeyoung | May 22, 2006 04:08 PM

However, I also equally do not doubt that these laws would be declared unconstitutional if Gonzales were ever stupid enough to actually try to prosecute a journalist with them.

That's a fairer argument, apart from characterising Gonzalez's hypothetical future attempt as "stupid." Actually, on balance, I might agree, not on the grounds that the government lacks the power to prosecute journalists for national security breaches (they are, after all, really no different from the rest of us -- a la Miller of the Times), but on the grounds that the statutes as written are excessively broad, and do not adequately include a requirement of real, substantial, and direct harm (as opposed to mere "classified" status -- that gets slapped onto absolutely everything and one can't infer harm from classified status alone).

But Gonzalez's argument is a respectable argument -- it's not insane (or stupid or ignorant, etc.), and not such that it can simply be dismissed out of hand. It follows the model of all previous restrictions on freedom of the press, in positing a conflict and a balancing resolution.

Re Kevin Q:

The First Amendment is unique in its construction. It is the only amendment that starts "Congress shall...."

Indeed -- although many people view this peculiar textual construction as indicating that only Congress is barred from implementing these particular restrictive laws. The other amendments use much more general language about rights, and talk about their not being infringed. This one, it's just that Congress shan't infringe them.

John Scalzi | May 22, 2006 04:27 PM

Taeyoung:

"But Gonzalez's argument is a respectable argument..."

The hell it is. It's a very bad argument legally, and I personally believe a very bad one morally. And inasmuch as there's been no direct limitation on the press in the manner that Gonzales suggets, I'm not sure where you say it follows some sort of "model." As I've noted before, this is nothing like libel. But I do allow I may not be following your reason 100%, so feel free to walk it out for me.

Brian Greenberg:

"Come on, guys - this is a slam dunk"

Brian, you're edging into the realm of saying incredibly fucking stupid things. Clearly it's not a slam dunk in the manner in which you suggest, nor should it be, because then the law would run afoul of the First Amendment. If the government can keep the press from printing any secret, it can keep it from printing every secret. Given that this is an administration that has tried to re-classify as secret material that was already in the public domain, I haven't the slightest hestitation in suggesting that it would be happy to declare entire swaths of material as secret, depriving its citizens of a sufficient understanding of its works. Which is a dangerous state of affairs.

I don't trust this particular administration as much as you seem content to be, but I'm sure in the future there will be other administrations you are less generally content to let you know what you need to know. Unless you want someone parroting back to you your statements that "today feels different" and thus the government is justified in gutting the Bill of Rights for its own purposes, you should probably stand up now and allow that the press has a right (and I would say, an obligation) to fight the governmental tedency toward secrecy.

Taeyoung | May 22, 2006 04:27 PM

Taeyoung,
In the 50-60 years since those statutes have been enacted, have they ever been used against a member of the press?

I do not know. This is not my area of specialty. With 18 USC 797, though, it's difficult for me to imagine a situation in which it could be applied that doesn't directly implicate press-type freedoms (i.e. private citizen reporting on matters of public interest). Well, I suppose if someone took a photo covertly and then sold it to the Russians. But there are much stronger statutes applicable there, (earlier in the same chapter), with heavier sentences, and much of the language in the provision would seem kind of redundant if that's the targeted activity.

It's entirely possible that there has never been a prosecution under that particular statute. It's also possible that, as so often seems to happen in federal investigations, no one ever gets prosecuted for the actual offense, they just get prosecuted for conspiracy or for lying to a federal agent (as with Martha Stewart, and potentially Scooter Libby).

Taeyoung | May 22, 2006 04:47 PM

The hell it is. It's a very bad argument legally,

It's no more bad than other legal arguments that have won at the Supreme Court. I mean, as a conservative, I think it's no worse than the argument that prevailed in Wickard v. Filburn, or in Raich v. Gonzalez. It is well within the bounds of colourable legal argument.

This isn't even like the National Security arguments w/ respect to wiretapping, where there are potentially countervailing caselaw to deal with. Here, there is only an inference drawn from an absence of direct caselaw, and an analogy drawn from civil caselaw (namely, libel caselaw), to argue in favour of the extension of a countervailing press freedom, to shield the press from criminal liability.

The Pentagon Papers case does suggest that there needs to be some showing of substantial direct harm, which is why I included that as the reason the statute is potentially overbroad, but it's not a full opinion (that I recall), just a squib, so the underlying reasoning may or may not be persuasive in this case.

Note, after all that the Times reports:

In any event, these scholars say, prosecuting reporters under the laws might violate the First Amendment.

The Times may be misreporting here -- always a possibility -- but these unnamed scholars simply say that it might violate the First Amendment. It's not a slam-dunk argument, as you are arguing, particularly when we don't have any concrete facts to analyse the situation under, just some statutory text.

and I personally believe a very bad one morally.

There, we differ. I do not have a moral problem tossing journalists in jail for violating the criminal law. On the merits of a particular case, I may oppose, but I don't have a problem with the idea in the abstract.

And inasmuch as there's been no direct limitation on the press in the manner that Gonzales suggests,

What do you mean by this? In the article you link, he says:

"There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility," Mr. Gonzales said on the ABC News program "This Week."

"That's a policy judgment by the Congress in passing that kind of legislation," he continued. "We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected."

He's not talking about passing new laws that target journalists directly, as far as I can see. He's just saying that journalists, like anyone else, fall within the ambit of extant laws on national security, possibly the ones I have linked to above, and that as AG, he has an obligation to enforce the laws.

I'm not sure where you say it follows some sort of "model." As I've noted before, this is nothing like libel.

No, because it's criminal, not civil, and the countervailing interests are thus presumeably greater, no? It's a balancing issue.

GSLamb | May 22, 2006 04:50 PM

The real question to ask if this starts happening:

Will the AG go after the journalists that print information leaked by the administration, or only those who get their information from non-administration sources?

If it's the former, would the jails be able to hold all of the FOXNews people?

Taeyoung | May 22, 2006 04:57 PM

I went and looked for the Pentagon Papers case (thank you wikipedia!) It's NYT Co. v. US, 403 U.S. 713 (1971), and reads, in full:

The United States, which brought these actions to enjoin publication in the New York Times and in the Washington Post of certain classified material, has not met the "heavy burden of showing justification for the enforcement of such a [prior] restraint."

I don't know what the quote is from. Probably from a brief or something. Prior restraints, though, are subject to heavier restrictions than post-hoc punishments, which are what are at issue here. For the injunction, you need to show irreparable harm and stuff like that. Anyhow, the first amendment alone didn't automatically dispose of the issue here, although you can be sure it was raised -- the government simply had not met its (heavy) burden.

Emily | May 22, 2006 05:01 PM

My boyfriend works for a video game making company. He has signed a Non-Disclosure Agreement. Let's say he comes home one day and tells me something he isn't supposed to tell me, and I put it on the internet and his company finds that out. He can get fired, and depending on the NDA, face criminal prosecution. I can't be touched.

What is going on here, it seems, is making a situation in which I could be prosecuted for publishing someone else's secrets.

And I wonder where bloggers fit in with all of this. Are they going to start stalking us all to find out where we live so that when Scalzi reports on a rumor he overheard and it happens that he accidentally eavesdropped on an NSA agent, he can spend a few years in federal prison?

Bull. Shit.

Lis Carey | May 22, 2006 05:01 PM

If The New York Times obtained (read: stole) classified information and printed it, then it violated the law and should be punished. Just as I would be if I did the same thing. The sacred title of "journalist" doesn't put anyone above the law. And to suggest that breaking the law is part of a journalist's job is, to coin a phrase, idiotic.

Brian, are you too young to remember the Pentagon Papers, and how that played out? Or do you just have absolutely no sense of irony?

Taeyoung | May 22, 2006 05:03 PM

Don't I feel a fool! No, the actual opinion is below (haha):

We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making Process on Viet Nam Policy." Post, pp. 942, 943.

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931). The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, in the Washington Post case, held that the Government had not met that burden. We agree.

The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed, and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York

John Scalzi | May 22, 2006 05:07 PM

Taeyoung:

"It's no more bad than other legal arguments that have won at the Supreme Court."

I'm not especially a fan of either case you note, but I'll note in both cases, those argument did not go up against 215 years of strongly opposing constitutional precedent, so I don't buy that Gonzales' legal argument is equally strong.

"He's just saying that journalists, like anyone else, fall within the ambit of extant laws on national security, possibly the ones I have linked to above, and that as AG, he has an obligation to enforce the laws."

He's just saying, in other words, that he has a right to regulate a free and open press, which he does not.

"No, because it's criminal, not civil, and the countervailing interests are thus presumeably greater, no?"

No. You're buying into this "balancing" argument Gonzales is trying to pass off, which I don't accept in the slightest. The starting point here is not that there should be a reasonable restriction on the freedom of the press; the starting point is that there is no restriction on the freedom of the press.

The fact that libel is the only restriction on the press is instructive: Libel laws protect an individual. There is no libel law protecting the government, nor should there be, and even individuals who are government officials, as public individuals, have their libel protections seriously limited versus the libel protections of private individuals.

As I've said before, what Gonzales is doing here is trying to craft an alternative legal theory of the freedom of the press, which appears to have no legal precendent; pointing to laws or regulations that theoretically restrict the press but have not (as far as any of us know) ever been challenged in court does not sufficiently establish Gonzales' legal theory as even remotely credible.

CoolBlue | May 22, 2006 05:08 PM

John Scalzi

What? No. However, nor do I think it's at all likely scenario, as the world of high-stakes international espisonage does not typically have as its endgame a spy walking into the offices of the local newspaper with a sheaf of classified documents and then just handing them over.

Let's review how this whole spying thing works.

So you got some guy or gal who works out of an embassy and they attempt to make contacts with people who have access to classified data. Then the "Spy" either offers money or sex or both, or maybe just appeals to the persons political leanings to get the contact to give them documents.

And sometimes that works.

OK, so except for the working out of the embassy part, how's being a journalist different? OK, maybe they don't offer sex...

So now, instead of secreting the material out of the country, which could be dangerous. just publish it in the papers. The secret is revealed one way or another.

The enemy knows the plan and that's what matters, right?

And if you do it that way, you can never be touched according to your theory of how the first amendment works.

I think you saying a journalist should be sentenced to a chain gang for doing his or her job is idiotic.

Hey. A Spy is just doing his or her job too. They can go to jail if caught. And that's if they're lucky.

Inasmuch as being a spy largely depends on being covert, I would personally question the utility of this particular course of action.

You're not thinking outside the bowl, John. Who says they have to be covert?

If you can accomplish the same goal and not have to run around in dark alleys, so much the better, right?

Besides, you sees journalists anyway. I mean I don't know what half the people I read look like and wouldn't know them if I ran into them on the street.

Mark K

Except for the rather major point that one of the usual goals of intelligence work is not just finding stuff out, but keeping your adversary in the dark about what you do or do not know.

Sometimes. Sometimes it's not necessary.

Just revealing troop positions, for instance could cause a defeat or force your opponent to delay an attack to another, less advatage time or terrain. Think of D-Day. If some journalist had revealed the actual place of the invasion even a few days prior to the attack, things might have turned out differently.

In many cases I would agree that it would be better if you knew and your opponent didn't know you knew, but there are times where just revealing the information is good enough.

Here's the bottom line as I see it: The 1st Amendment can not and does not protect people who break the law in the course of carrying out their duties.

The First Amendment has always been about protecting political speech, not just any old speech.

There may yet be judicial tests of this, and they may decide differently, but that's how I see it.

Taeyoung | May 22, 2006 05:09 PM

My boyfriend works for a video game making company. He has signed a Non-Disclosure Agreement. Let's say he comes home one day and tells me something he isn't supposed to tell me, and I put it on the internet and his company finds that out. He can get fired, and depending on the NDA, face criminal prosecution. I can't be touched.

Unless your boyfriend makes video games for the government, I don't see how he could face criminal prosecution. Well, I suppose potentially that if there were some kind of insider traditing tipper/tippee issue, there might be that kind of problem, but alas, the securities laws would reach you too already(although just posting it on the internet might count as disclosure and gets you both off the hook). There might also be some kind of theory distinct from the NDA violation that might come into play, I suppose, but I cannot imagine what it would be.

Emily | May 22, 2006 05:10 PM

"Unless your boyfriend makes video games for the government, I don't see how he could face criminal prosecution."

I will remember that all metaphors will be taken literally from this point forward, then. Yeesh.

Emily | May 22, 2006 05:11 PM

"Unless your boyfriend makes video games for the government, I don't see how he could face criminal prosecution."

I will remember that all metaphors will be taken literally from this point forward, then. Yeesh.

And you know, maybe he does. You don't know.

(And I can't tell you!)

John Scalzi | May 22, 2006 05:13 PM

"Unless your boyfriend makes video games for the government, I don't see how he could face criminal prosecution."

What about if he worked on "America's Army," which was created for the US Army?

(I'm being facetious here; the game was created by a non-governmental game company.)

Taeyoung | May 22, 2006 05:32 PM

No. You're buying into this "balancing" argument Gonzales is trying to pass off, which I don't accept in the slightest. The starting point here is not that there should be a reasonable restriction on the freedom of the press; the starting point is that there is no restriction on the freedom of the press.

Okay, see US v. The Progressive, in which a preliminary injunction (comparable to the Pentagon Papers case) is granted, even though the information at issue isn't even formally classified (it's about how to make H-bombs). This is only a district court case, but it highlights significant language in an earlier Supreme Court case (barring certain censorship), Near v. Minnesota, which reads, in relevant portion:

The objection has also been made that the principle as to immunity from previous restraint is stated too [283 U.S. 697, 716] broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its errort that their utterance will not be endured so long as men fignt and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U.S. 47, 52 , 39 S. Ct. 247, 249. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. 6 On similar grounds, the primary requirements of decency may be enforced against obscene publications.

That looks like a balancing test to me, and for publication bars (prior restraint!) not just for post-hoc imposition of liability.

I include the obscenity caveat here, because even though the obscenity exception has been whittled down, the fact that the one has been whittled down in practice (Miller v. California, 413 U.S. 15 (1973)), it has not been eliminated, and still remains in theory. There is no reason why the national security exception outlined in Near v. Minnesota is not alive as well -- has Near v. Minnesota been overturned?

Joe | May 22, 2006 05:36 PM

The first amendment is not an absolute protection against criminal charges based on something published, and no one wants it to be. For an extreme example, no one would defend a newspaper that threatened on its front page to have its reporters burn down someone's house. Nor would anyone claim that the first amendment protects a paper that commits treason. Lord Haw Haw and Tokyo Rose could be prosecuted if they had published in the Chicago Tribune during the war.

This is not to say the the current articles amount to treason or undermine national security. John, you seem to think that they either do not or that if national security was harmed, the benefits of exposure outweigh the harm.

So the question becomes a balancing of the interests, which is the very thing you are claiming is not allowed.

While I hate people that try to control how debaters present their arguments, I want to ask that if you disagree, can you state whether you think that the government can prosecute a "real" case of printed treason (by which I mean one you recognize as treason.)

Josh | May 22, 2006 06:03 PM

One thing that bothers me is that the prevailing arguement supporting this is that the press shouldn't go yapping about state secrets, obstensibly because those state secrets will somehow damage the nation in some severly dramatic fashion should they become public knowledge.

The thing is, our dear our dear A.G. has been getting his panties in a twist over the press reporting stuff the administration has been keeping secret because it makes them look bad, not because it will lead Bin Laden to our secret stock pile of weaponized plutonium and human-to-human transmittable H5N1 bird flu. As the press isn't reporting the later (the only potentially damaging classified information, the identity of a CIA operative, was leaked at the order of the administration and they seem just dandy with that), it seems that the only motive for deciding to take such a standpoint now is to prevent bad press.

I have a simpler solution for our administration that doesn't involve them shitting on the first amendment; instead of getting all pissy that the press is using information they would rather the press not know, that they participated in potentially illegal and fully useless wiretapping and datamining for example, they try to not be ass hats from now on. The administration is happier, we are happier, everyone wins.

For everyone rationalizing yet one more Bush proclimation that needs rationalizing, the problem everyone has with it is that the adminstration just isn't trustworthy. There is increasingly feeling that there is little accountability in the administration and this is one more play to even further limit said accountability. Bush seems more than happy to label anything questionable as a state secret so that he can't be called to the mat for it; if he can now proscecute any journalist who would point out his potential wrong doing there is a very large percentage of Americans (71% last Gallop poll) that fully believe he will. Considering "ThinkProgress reported last week on a new Presidential memorandum that appears to shield the telcos from any SEC penalties if they lie in order to keep the NSA program under wraps.", Bush seems more than willing to do whatever it takes to mislead the public and avoid accountability.

CoolBlue | May 22, 2006 06:05 PM

Taeyoung

There is no reason why the national security exception outlined in Near v. Minnesota is not alive as well

While I don't disagree with you, I think that more germaine to this particular situation is when Justice Burger wrote that the press clause does not give journalists any more privledges than the speech clause gives to the bum on the street. (First National Bank of Boston v Bellotti)

Which means to me that if it was illegal for me to reveal classified data that I receieved, then it is illegal for a journalist as well.

The paper itself may be able to print it, (though if it passes Justice Holmes' Clear and Present Danger test then they can't) but the reporter could still be prosecuted.

Kevin | May 22, 2006 06:15 PM

Describe the facts of such a case. If person A tells a reporter something and the reporter publishes it, what would that information have to be in order for the reporter to be open for punishement?

It's not that reporters are above the law, it's that there isn't supposed to BE a law that limits what they can print.

John Scalzi | May 22, 2006 06:20 PM

Taeyoung:

"Okay, see US v. The Progressive"

Moot case; the government dropped the case. This article suggests one of the reasons the case was dropped was due to the government not being convinced it would win (thus possibly setting a precedent it didn't to set), but as it's a Wikipedia article, take it with a sufficient grain of salt.

Re: Near v. Minnesota: I don't know that the prior restraint loophole in it is still valid, although I would suggest the ruling in the Pentagon Papers shows that the bar for such prior restraint is remarkably high, and as such (so far as we know) has not yet been met.

Be that as it may, nothing in Near v. Minnestoa, as far as I can read, suggests that prosecuting reporters as an acceptable method of prior restraint.

Joe:

"For an extreme example, no one would defend a newspaper that threatened on its front page to have its reporters burn down someone's house"

Actually, under Brandenburg v. Ohio, they might, if the government could not prove there was an imminent threat. It really would depend on the wording of the threat.

"John, you seem to think that they either do not or that if national security was harmed, the benefits of exposure outweigh the harm."

In the particular case of Gonzales threatening to prosecute reporters I'm not entirely this is on point. I would assume under Gonzales' theory of law, any acceptance and publication of classified material would be actionable, regardless of whether it represented a genuine threat to national security.

"can you state whether you think that the government can prosecute a 'real' case of printed treason (by which I mean one you recognize as treason.)"

Well, the question here really is: Is treason protected speech? I don't think it is, and in that regard I don't think I would have a problem with the government trying to prosecute a clear-cut case of treason.

However, I'd also note the legal standard for treason is pretty well-defined and narrowly-focused in the US, and it would imagine it would be very difficult to make a treason charge stick, even if, say, a newspaper published sensitive information on the rationale that the public needed to know about it, and as a result an enemy of the state discovered a piece of sensitive material. Unless you could prove intent to give aid to the enemy, it's not legally treason (it's entirely possible it would be morally reprehensible, however).

Taeyoung | May 22, 2006 06:44 PM

Re: John Scalzi
nothing . . . suggests that prosecuting reporters as an acceptable method of prior restraint.

That's because it's not a prior restraint at all. It's going after reporters after they publish, not before. As such, the bar is set lower. That's why the court in Near v. Minn said:

the protection even as to previous restraint is not absolutely unlimited

That said, this:

I would suggest the ruling in the Pentagon Papers shows that the bar for such prior restraint is remarkably high

is certainly true, although I think the Pentagon Papers case is of limited precedential value (it is merely persuasive by outcome), because the opinion gives almost no guidance, other than the result, and the individual concurrences do not concur on a particular theory of analysis. Nor, obviously, do the dissents. Also, it concerns a prior restraint (an injunction), which is not a type of relief at issue here, to judge from the AG's comments, so it wouldn't be particularly difficult for a lawyer to distinguish away.

But I include the Progressive case to indicate that the exception was still alive (and applicable) in federal jurisprudence in roughly the same time period the various cases expanding the first amendment press freedoms were decided. I don't think it's dead, and I think courts would be loath to absolutely foreclose the exception, even if the facts of a particular case do not support the government's power in that specific instance.

Taeyoung | May 22, 2006 06:52 PM

"I don't think it's dead, and I think courts would be loath to absolutely foreclose the exception, even if the facts of a particular case do not support the government's power in that specific instance."

Ah -- which is to say, "if the balancing test doesn't work out in the government's favour."

Because the upshot for my argument here is that I think there is a balancing test, that there is caselaw supporting this (i.e., it's not the AG vs. 215 years of jurisprudence; it's more like 40 or so, at the most), and that that caselaw is still valid.

Bill Marcy | May 22, 2006 06:54 PM

John, how about those journalists publishing your crdedit card info, or SSnumber, or maybe your medical records. All of those are pretty important and ought to be, well, confidential, no? Uh, how about classified information that instead of causing you discomfort, might actually get people killed? Should that be allowed to be published?

Jon Marcus | May 22, 2006 06:58 PM

CoolBlue, you're coming up with scary and hypotheticals. Obviously no one tried setting up "Ivan's Press & Spy Agency." Why do you suppose they didn't? Because no one's as clever as CoolBlue? Do you really think the reason covert agents are reluctant to out themselves is that they can't think outside the box?? Or just maybe the idea's ridiculously unworkable. And we'd be pretty damn stupid to throw away one of the pillars of free government out of fear of such a scheme.

Taeyoung, do you really believe that this reading of the law isn't novel? Nothing new to see here, just move along? All the brouhaha is just the whinging of the moonbats and liberally-biased MSM?

For myself, I'd go with these words from a man with a fairly good understanding of what the Consitution means:

"...were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter..."

http://etext.virginia.edu/jefferson/quotations/jeff1600.htm

mythago | May 22, 2006 06:59 PM

Emily, the problem is that your metaphor is a bad one. You're comparing apples and oranges. The NDA your boyfriend signs, between himself and a private employer, is not the same as the government unilaterally imposing an NDA on everyone.

Scalia's typically been pretty rigid on his first amendment jurisprudence

Ha. Ha. Also, HAHAHAHAHAHA! Google Employment Division v. Smith and try that one again.

Kevin | May 22, 2006 07:11 PM

Bill:

Think of the children! Give us the right to do traffic analysis on your domestic calls and we can protect you from TERRORISTS!

Yes, sometimes leaked information is going to get people killed. Small price to pay for all the times leaked information is going to protect the public from an abusive government or corporation that is lying to the people and harming them.

Kevin Q | May 22, 2006 07:13 PM

CoolBlue said,

Here's the bottom line as I see it: The 1st Amendment can not and does not protect people who break the law in the course of carrying out their duties.

That statement is completely incorrect, in all ways. The exact opposite is true: No law in opposition to any part of the Constitution is valid. The Constitution is the supreme law of the land, and the source of all legal power in the United States. Congress cannot pass a law in contravention of Constitution. (Well, they can pass it, but then the Supreme Court will strike it down.) If a law seems to contradict the Constitution, the courts will first try to interpret is such that there is no actual conflict. If that is not possible, then the law will be struck down.

CoolBlue also said:

The First Amendment has always been about protecting political speech, not just any old speech.

This is also not true. While there is much jurisprudence on political speech, because it can be so contentious, that is not the only thing protected. See, for example, Rushman v. Milwaukee, 959 F.Supp. 1040, where astrology and fortune telling were protected under the First Amendment, or even Ashcroft v. Free Speech Coalition, 535 U.S. 234, protecting virtual depictions of children engaged in sex acts.

K

Bill Marcy | May 22, 2006 07:16 PM

Kevin, I gahter that as long as it is not you that is being killed or harmed, it is a good thing to leak classified information, but I gather it might be a different story if you were the one harmed, no?

Or maybe if it were your child?

Or are your principles so strong as to negate any personal bias in your allowance of people to be harmed, so you can find out whatever it is you beleive you have a right to know?

John Scalzi | May 22, 2006 07:19 PM

Bill Marcy:

"John, how about those journalists publishing your crdedit card info, or SSnumber, or maybe your medical records. All of those are pretty important and ought to be, well, confidential, no? Uh, how about classified information that instead of causing you discomfort, might actually get people killed? Should that be allowed to be published?"

I have the ability to classify information? Hmmmm. That's interesting. I didn't know I had that ability. Oh, wait, I don't. Because I'm not the government, and making facile comparisons between my personal situation and the situation of the US Government is completely useless because they're not even remotely similar. I'll have to remember that.

RooK | May 22, 2006 07:20 PM

It would seem that some people see no separation between the stealing of information and the sharing of information.

CoolBlue | May 22, 2006 07:20 PM

Taeyoung

although I think the Pentagon Papers case is of limited precedential value (it is merely persuasive by outcome), because the opinion gives almost no guidance, other than the result, and the individual concurrences do not concur on a particular theory of analysis.

True enough. And then there's the fact that the Pentagon Papers was for all intents and purposes a history. Admittedly a secret history but only a history nevertheless.

It was not revealing an ongoing program or operation during a war.

Jon Marcus

Obviously no one tried setting up "Ivan's Press & Spy Agency."

I like it for a book title, though. I could work it. (With some help from John)

The spy/reporter could have a degree from Whatsamatta U on the wall.

Do you really think the reason covert agents are reluctant to out themselves is that they can't think outside the box??

Well yeah.

Do you really think a Government could survive without secrets?

Because no one's as clever as CoolBlue?

Do I really have to answer that?

It might seem immodest.

mythago | May 22, 2006 07:22 PM

As RooK points out, the spy who steals the classified information is guilty of espionage. Going on to publish that information--why should that be a crime?

Kevin Q | May 22, 2006 07:26 PM

Bill, I think you were talking to the other Kevin, but I just wanted to say that the scenarios that you point out (generally, what if it was one's own family under attack, would one still value freedom) are extremely juvenile, and are the reason why we have a republic and not a democracy - so that decisions can be made by people other than scared parents.

When we make decisions based on fear, the terrorists have already won.

When we make decisions based on knowledge, there is nothing that can stop us.

K

Taeyoung | May 22, 2006 07:33 PM

Taeyoung, do you really believe that this reading of the law isn't novel? Nothing new to see here, just move along? All the brouhaha is just the whinging of the moonbats and liberally-biased MSM?

I don't think it's moonbats and the liberally-biased MSM -- as far as the media go, of course, the media have a, uh, pretty strong institutional interest in opposing any prosecutions of journalists for national security violations, and no questions of "liberal-bias" need to enter into it. As far as "moonbats" go, it's not moonbattery to think that the AG is wrong -- I'm only trying to point out that the legal issue is not black and white, not argue that the AG is actually right -- and it is not moonbattery to hold the opinion that even if the AG is fine on the law, this is pragmatically an undesireable action for us to take.

I don't think it's new though.

If you go look through the cases I cited, and the cases cited by those cases, you'll find that what the AG is suggesting as a possibility here does not actually reach the limits of what has been upheld in the past, with respect to the first amendment. E.g. in Schenck, a conviction for passing out anti-draft pamphlets (which argued the draft was unconstitutional under the 13th amendment) was upheld unanimously by the Supreme Court. And we know the press are subject to the other criminal laws -- things like contempt of court, etc.

This reading certainly isn't novel by any means. It is new only in the sense that this particular pattern has not come up in prior caselaw, not in the sense that the AG is advancing a novel theory of government power vis-a-vis the first amendment.

Of course, you could argue that it has been superseded by subsequent decisions, which have reversed in practice, if not theory, prior more restricted interpretations of the scope of the first amendment. That's fair. But that it is new?

I don't buy it.

CoolBlue | May 22, 2006 07:50 PM

Kevin

Yes, sometimes leaked information is going to get people killed. Small price to pay for all the times leaked information is going to protect the public from an abusive government or corporation that is lying to the people and harming them.

Is this Kevin's law of acceptable losses?

So then what was the big deal about Valerie Plame? Granted she wasn't actually outted, but most reporters and papers said she was. (Still do)

And I still hear "How could they out their own agent and put her in danger like that."

Kevin Q

The 1st Amendment can not and does not protect people who break the law in the course of carrying out their duties.

That statement is completely incorrect, in all ways. The exact opposite is true: No law in opposition to any part of the Constitution is valid.

Um yeah. Well, you still can't go into a bank and say "Stick 'em up, this is a robbery." and expect that the 1st Amendment will protect you.

The First Amendment has always been about protecting political speech, not just any old speech.

This is also not true. While there is much jurisprudence on political speech, because it can be so contentious, that is not the only thing protected.

You are quite correct in this. The Courts have interpreted the 1st Amendment very liberally. However, the fact remains that the intent of this right was to assure that people could speak against the government or make any political statement at all without fear of retribution.

Everything else (like porn) is gravy.

Kevin Q | May 22, 2006 08:19 PM

CoolBlue said,

Well, you still can't go into a bank and say "Stick 'em up, this is a robbery." and expect that the 1st Amendment will protect you.

<sarcasm>
Brilliant. How could I have been so blind. You can start locking up the reporters right now.
</sarcasm>

As far as I'm aware, saying "This is a robbery" is not actually a crime in most areas. The action of the robbery would be a crime, as would the action of creating a panic if it wasn't really a robbery, but stating your intention to rob is generally not punishable.

CoolBlue also said,

However, the fact remains that the intent of this right was to assure that people could speak against the government or make any political statement at all without fear of retribution.

I hate Original Intent arguments with a white-hot fiery passion. You're going to have to come up with a citation on that, or I call bullshit.

K

David Klecha | May 22, 2006 08:40 PM

As far as one's health information goes, the government has already made it illegal to disclose identifiable health information, via HIPAA. So, John, you don't need to classify your personal and confidential information--Congress and President Clinton already did it for you. At a guess, I'd say it's treated at about the same level as individual military service records and the subject matter of most military specialty schools.

As to the larger question of whether or not a reporter essentially gets immunity from prosecution for breaking this and other laws, by nature of their role as journalists, I cannot say.

But as a guy who served in a war zone, the topic is rather intriguing; I wanted to see Geraldo Rivera strung up by his pubic hair until he died from it for drawing a map in the sand, live on television, of how the unit he was embedded with was going to attack a particular town. Further, no matter who knew what, I think the "burning" of a CIA agent, for any reason, is utterly unconscionable. How that question is tackled legally is something I'm far from qualified to speak intelligently on, other than to say that there do need to be some secrets--people's lives (like mine) depend on them. Kevin Q's desire to see an end to secrets is akin to my desire to see an end to war--and just as likely to happen.

Anyway, the question is difficult and I certainly appreciate both sides of the question. I figure the answer is probably somewhere in the middle, as usual; the right of the government to prosecute anyone for breach of Classification, but the right of the journalists to challenge the nature of the classification under some other rigorous statute. Or something like that, anyway.

As far as CoolBlue and his pontification about espionage is concerned:

The entire point of espionage is to know what the other fellow knows without letting him know that you know it. The football analogy was excellent, but let me take it a step further. If the Giants uncover what the Cowboys are up to in a game between the Cowboys and the Eagles, they sure as hell aren't going to broadcast it, because to do so would be to give an advantage to the Eagles, another divisional rival.

Or, let's put it another way. We spy on the Brits, and they spy on us. Fact of life. It is in no way a net benefit for spies on either side to broadcast what they know because, in spite of the spying, the two countries are still allies and have many enemies in common. Broadcasting the secrets hurts them both and benefits only the common enemies. Even if we're spying on the Chinese, we don't want our sometimes-allies the Russians to know what we find out. Espionage is not a binary game of "know/don't know" and treating it as such is laughably naive.

John Scalzi | May 22, 2006 08:56 PM

David Klecha:

"As to the larger question of whether or not a reporter essentially gets immunity from prosecution for breaking this and other laws, by nature of their role as journalists, I cannot say."

What's being left unsaid in all of this, incidentally, is the fact that most journalists -- and the newspapers, magazines, and other news outlets they work for -- are having an ongoing discussions amongst themselves about what information legal, appropriate and essential to share with the public, and what is not. As I said in a previous thread, I realize people in and around the blogosphere have certain preconceptions about the morally rapacious nature of the modern-day professional journalist, but speaking from experience, the vast majority of journalists I've known have been honest and hardworking people who grapple with the implications of the work they do.

This is why, for example, I don't really take the "example" of a journalist broadcasting my medical records particularly seriously; because it's not likely it would actually be an issue. As another example, journalists have a perfect right to name adult sexual assault victims like they do other crime victims, but the large majority of news outlets don't because they feel it's not an ethically correct thing to do.

If a newspaper reporter comes in possession of government secrets, you can bet a serious discussion goes up and down the editorial (and legal) chain before anything hits print, because that media outlet will want to be as sure as possible the information is good before it puts its ass out there. There are notable cases where a news organization has tripped itself up on this score (the Dan Rather incident is one famous around the blogosphere), but on balance the system works pretty well.

Mark K. | May 22, 2006 08:57 PM

"It's not that reporters are above the law, it's that there isn't supposed to BE a law that limits what they can print."

Hasn't this come up in intellectual property law? As in, some person reporting on some method of breaking encryption such that something could be pirated?

Mark K. | May 22, 2006 09:12 PM

CoolBlue:

"Just revealing troop positions, for instance could cause a defeat or force your opponent to delay an attack to another, less advatage time or terrain. Think of D-Day. If some journalist had revealed the actual place of the invasion even a few days prior to the attack, things might have turned out differently."

Yes, but in tactical terms, things would have turned out a *better* kind of differently for the Germans if they had found out about D-Day in a non-public way, so that they could have put a nasty countermeasure in place. The narrow question I was looking at isn't whether journalists are capable of messing up national security interests--clearly they are--but rather whether spies could *equivalently* mess up national security interests by being public rather than covert. I don't think they can.

I'm also not sure how simple it is to get journalist credentials. I've heard of people who want them being unable to get them.

"Here's the bottom line as I see it: The 1st Amendment can not and does not protect people who break the law in the course of carrying out their duties."

I think the question raised by John is whether any law that could limit what the press publishes can be constitutional in the first place. I mean, I work in a church; if a law is passed banning any public mention of Christ, I'm going to be breaking the law in the course of carrying out my duties, but the fact remains that I can and should call bullshit on such a law.

"The First Amendment has always been about protecting political speech, not just any old speech."

Umm...so when they pass the laws making it illegal to print chocolate chip cookie recipes, that'll be okay, then? I'm not sure your reading of the First Amendment is the received version.

Jon Marcus | May 22, 2006 09:57 PM

Mark, I think you're talking about DMCA. Aspects of it are still being hashed out (and up, down, and sideways) in the courts.

Bill Marcy:
Wow, I thought CoolBlue's "Ivan's Press & Spy Agency" was off the wall. Now we've got to worry about newspapers running pages and pages of medical records.

But that's not all! What if aliens from Planet X invade, and they squeeze us all and drink our precious bodily fluids, but the ACLU says it's okay because they're entitled to Freedom of the Press, so we all die! See? See??!

Okay, try this one on for size. How about if an Administration secretly and unilaterally re-interprets the constitution to grant themselves any powers they deem necessary. And they spy on reporters and threaten to lock up those who reveal what they're up to. How's that for a wild hypothetical? Maybe it'd be a good idea to have a press free enough to report if something that unlikely actually happened?

Phillip J. Birmingham | May 22, 2006 11:08 PM

The enemy knows the plan and that's what matters, right?

Suppose that in 1944, an Abwehr agent had discovered that the Normandy invasion would fall, not at Calais as the Germans believed, but at Normandy. This information is transmitted in secret to Hitler, and Rommel distributes his forces accordingly. The invasion proceeds, but is counterattacked in the initial hours by the First SS Panzer division and Panzer Lehr, which have been moved to the invasion area along with the 21st Panzer division.

Or, the spy publishes the invasion plans in the London Times. Eisenhower tightens up security, re-works the invasion plan, and the Allied invasion is delayed by a few months.

Don't you think that the Nazis would have found the first outcome to be worth risking a spy's life?

Chris Gabel | May 23, 2006 01:00 AM

Well, I'm a Republican & have been generally supportive of the President and the war effort etc.....but I have no desire to see a criminal case against the NYT. Talk about a horrible precedent!

The Bush administration is justifiably pissed with the NYT over this - it was a partisan dirty trick of the worst order. But newspapers are allowed - even expected - to be partisan. And the "damage" done to the national interest would have to be far worse to justify even considering legal action. It would trivialize the concept of treason and lower them to NYT's level.

I think it's possible for a newspaper to go too far in publishing secrets. But freedom of the press is too important a principle to pursue this. Let the NYT stew in their own bile - they've been all too adept at destroying their own credibility.

Brian Greenberg | May 23, 2006 01:14 AM

John:
If the government can keep the press from printing any secret, it can keep it from printing every secret.

Really? Interesting. The UC professor you quoted disagrees with you. He defines three types of secrets: the kind that should be published, the kind that shouldn't be, and the kind where he isn't sure. He then concludes that no laws should be passed preventing publishing any of them because it's never been a problem before.

Unless you want someone parroting back to you your statements that "today feels different" and thus the government is justified in gutting the Bill of Rights for its own purposes, you should probably stand up now and allow that the press has a right (and I would say, an obligation) to fight the governmental tedency toward secrecy.

I find it fascinating that you're tremendously concerned with the possibility that the government can run amok, but not at all concerned that the press can run amok. You're accepting of the notion that the government classifies information to protect its reputation, but completey reject the possibility that the press might print classified information to promote its own bottom line (with an "exclusive scoop!"). The press has a right/obligation to fight the governmental tendency toward secrecy, but the Attorney General has no obligation to fight the press' tendency toward sensationalism. We must protect against bad behavior by the government, but cannot even consider bad behavior by the press. After all, they've never behaved badly in the past.

This thread is ample evidence that smarter heads prevail where the legal arguments are concerned. The more I read, though, the more it seems the AG's statements are one side of that argument, not an indication that he's dumber than your dog.

Brian, you're edging into the realm of saying incredibly fucking stupid things.

Ya know, these conversations are interesting and educational for me. I like to think I add to the level of discourse and treat everyone with respect. If you disagree, say so and I'm gone. Until then, calm the hell down, OK?

Jon Marcus | May 23, 2006 01:45 AM

Brian, I'm a little more concerned about the government than the press. I'm also a little more concerned about the government than I am about...I dunno, high school teachers? Football players? Just about anyone, I guess.

Because, y'know, none of those groups can lock me up, seize all my assets, or kill me. (Not to mention do just about anything the press can do.)

The only reason the government can't do whatever it wants is the risk that people would find out about it and throw 'em out of office. So when the government starts restricting who can find out what it's doing, I react much more strongly than when the press misbehaves.)

mythago | May 23, 2006 01:48 AM

I find it fascinating that you're tremendously concerned with the possibility that the government can run amok, but not at all concerned that the press can run amok.

Perhaps that's because "the press" is not the government. How you equate the two is beyond me. The Framers certainly managed to make the distinction.

Please note that laws restricting the right of the press to publish, say, your medical records, are about the fact that those are your records, as a private person; you have some control over them. Are you equating private persons with the government?

Of course free speech isn't absolute. The question is whether the government can shut down public dissent by simply labeling anything potentially embarassing as "classified", and punishing anyone who reveals it. If only Clinton had thought of this trick, and classified everything to do with Lewinsky!

John Scalzi | May 23, 2006 07:28 AM

Brian Greenberg:

"He then concludes that no laws should be passed preventing publishing any of them because it's never been a problem before."

Oh, so you mean that, in fact, he's not disagreeing with me at all. Also, his reason for saying these laws should not be passed is "Even if such a law is constitutional, it is neither necessary nor wise," which is different than saying because it's not been a problem before -- he uses history as a support for the above-quoted statement, not as his predicate cause for his opinion. You've concluded otherwise, which I find to be an inaccurate reading of his post, and from these premises have come to an inaccurate (and bad) conclusion.

"I find it fascinating that you're tremendously concerned with the possibility that the government can run amok, but not at all concerned that the press can run amok."

That's because -- as Mythago notes -- one is the government, and one is not, and if you truly have difficulty in understanding how the two are different and why, it's time for some remedial civics for you. But to start, if the New York Times "runs amok," it might gain or lose subscribers. If the US Government runs amok, I might spend time locked away in a prison barge without access to a lawyer or other basic civil rights. Or worse. So, yeah, my concern for a press "run amok" versus a government run amok is pretty damn low.

"Until then, calm the hell down, OK?"

Look, Brian, it's simple. If you don't want me to tell you that you're saying some incredibly fucking stupid things, then here's how to do it: don't say incredibly fucking stupid things. Because when you do, I'll be happy to let you know. I know you think you're being reasonable and practical and all that, but when the senior law enforcement offical in the US declaring he wants to piss all over the First Amendment and throw reporters in jail for the same activities they have been legally doing for a couple of centuries now, I tend to get edgy. Blithe supporting declarations of "this is a slam dunk" deserve ridicule at the very least, no matter how reasonable and practical they may sound to you in your head.

Also -- on a purely rhetorical note -- I should note that there's a reason I used those particular words. Rhetorically speaking, "Come on, guys -- this is a slam dunk" is your attempt (intentional or not) to suggest that you're about to say something everyone should know, and that it's reasonable position to have (i.e, once we all give it some thought, we'll all agree as a matter of course -- a slam dunk). But in fact prosecuting journalists for doing their job is not a reasonable position to have. Nor is the position that if a newspaper obtains classified information and prints it, that it should be punished. These are wildly radical positions, at odds with the words and (I think) intent of the Constitution.

That being the case, rhetorically speaking, I wanted to undermine your genial, consensus-building framing of a radical, unsupportable, scary, awful, national-character-negating position. Thus: "incredibly fucking stupid," which suggests a) your consensus-building isn't working, and b) the reason for that is because it's an incredibly fucking stupid idea.

See, there's a reason for everything.

Slog | May 23, 2006 08:32 AM

I think what the Gonzalez apologists are missing is that George Bush isn't our King, and his lackeys aren't our lords. They are our servants, and they work for us because we give them the privelege to do so. It's not the other way around.

And this has nothing to do with Bush. I don't trust any government official from the president down to the county coroner. The founders didn't trust them and neither does the document they wrote. That's why we kick the president out of his house every four or eight years.

Journalists are the only ones, besides politicians and their corporate stooges, that have access to the information that really matters, like secret prisons or NSA domestic spy programs.

Don't Americans want to know this stuff? In a time of war, when so much is at stake, shouldn't we know more? Don't the people have to be more involved when it's the people who always pay the "ultimate sacrifice?" We have a right to know what they are actually up to behind all the spin.

If not, how can we make them fully accountable at election time?

If this means journalists are "above the law," then that's fine with me. Better journalists, who have no armies, than governments, who do.

Ben | May 23, 2006 09:19 AM

Taeyoung & John Scalzi:

Thanks for an enlightening and civil discussion. I wish there was more political discourse along these lines.

Brian Greenberg | May 23, 2006 09:49 AM

Oh, so you mean that, in fact, he's not disagreeing with me at all.

You said, "If the government can keep the press from printing any secret, it can keep it from printing every secret."

He said, "In principle, the government should never be able to punish the publication of 'illegitimate' secrets and should be able to punish the publication of 'legitimate and non-newsworthy' secrets. The middle category, which is no doubt the largest, is the most difficult to assess because there are both real costs and real benefits to disclosure."

So I stand by my assessment that he disagrees with you.

That's because -- as Mythago notes -- one is the government, and one is not, and if you truly have difficulty in understanding how the two are different and why, it's time for some remedial civics for you. But to start, if the New York Times "runs amok," it might gain or lose subscribers. If the US Government runs amok, I might spend time locked away in a prison barge without access to a lawyer or other basic civil rights. Or worse. So, yeah, my concern for a press "run amok" versus a government run amok is pretty damn low.

I don't know why you and Mythago both assume we're only allowed to care about one - the government or the press. I care about both, and I agree that the government is a bigger concern. I also think the government (yes, even this government) is the most closely watched government in the world, and the most closely watched government in the history of our country. This, I believe, is entirely appropriate.

Where we differ is your contention that circulation is the only negative affect of the press running amok. Geraldo told the world where our troops were in the heat of battle. The Times printed a photograph on its front page of a plane running top secret military operations and didn't even bother to obscure its call letters. Given how much we don't know about the NSA prorgrams, we have no real idea how damaging it is to national security that they're now public knowledge.

I get that the government may supress infromation for its own, selfish goals. I really, really do. But I also believe that well-meaning people in the government (yes, even this government) have a better understanding of what's sensitive and what's not than the press does. And so, when (IF?!?!?) the government is not acting in its own, selfish interests, the press has the power to trump that judgement and put us at serious risk.

As Dr. Stone says, we've considered legislating against that power in the past, but haven't because the press has always self-policed. But it's never been easier for the press to obtain and publish secret information. And the competition for our eyeballs has never been higher. So the incentive to "wow" us with "exclusive, never before seen footage" is immense. And more importantly, evidence is beginning to crop up that they are less careful about what they print.

Can't I care about both overseeing the government and preventing a runaway press from putting us or our troops in danger? PLEASE?!?

Blithe supporting declarations of "this is a slam dunk" deserve ridicule at the very least, no matter how reasonable and practical they may sound to you in your head.

OK, I was going to let that drop, but since you brought it up again: What I thought was a slam dunk was the case where The New York Times steals secret information and publishes it. I still believe that to be the case. If you disagree, I apologize for my overzealous characterization.

I hasten to add, though, that the very next paragraph of my post says that all other cases are much murkier, and go on to compliment you, Taeyoung, and Dr. Stone for making compelling arguments on both sides. It seems clear to me that you didn't read this portion of my post, or chose to ignore it before calling me incredibly, fucking stupid.

Look, you're the writer, I'm not. Maybe I buried the lead. Maybe "slam dunk" was enough to set you off and hijack the rest of my post. If so, my bad and lesson learned.

Also, I think it's clear at this point that I don't mind being criticized or ridiculed on these pages. In fact, I welcome it, especially when it's backed up by solid logic or informed opinion. That's how we all learn new things, after all. I just found your words disrespectful, and I (still) see no reason to go that route.

John Scalzi | May 23, 2006 09:56 AM

Brain Greenberg:

"I just found your words disrespectful, and I (still) see no reason to go that route."

Well, then, Brian, I do hope you'll accept my apology for making you feel disrespected. I can be an ass from time to time, and it's entirely possible this is one of those times. It's good to have you here and contributing to the discussion, and don't doubt that I'm happy you contribute your points of view.

Sam Greenfield | May 23, 2006 10:04 AM

Sometimes it's frightening when you read something and realize that you have had almost the exact same thoughts. I posted a very similar entry to my blog just 13 hours before yours!

John Scalzi | May 23, 2006 10:06 AM

Well, Sam, that's because I stole it from you. Haven't you heard? Plagiarism is the new black!

Tripp | May 23, 2006 10:16 AM

Brian,

the case where The New York Times steals secret information and publishes it.

I missed that one. What specific case are you referring to?

Brian Greenberg | May 23, 2006 11:18 AM

Tripp:
I missed that one. What specific case are you referring to?

I realize the discussion is all fragmented, but I was asking a question, not citing an example.

Where did USA Today learn of the NSA data mining program? Where did the Times learn of the non-FISA-warrant wiretapping? By definition, these are either leaks from inside the government, or illegal activity on someone's part to obtain the information.

If it's the former, someone ought to be fired (unless we take the "right to know" thing far enough to call him/her a whistle-blower?), or someone ought to be arrested.

Brian Greenberg | May 23, 2006 11:20 AM

sorry...that's should have said. "If it's the latter, someone ought to be arrested."

Tripp | May 23, 2006 11:29 AM

Brian,

Ah, thanks. Personally I think it is much more likely that someone leaked that information. Otherwise it means the Times was able to penetrate the NSA's security in order to steal the information and I have to ask why they would do that and how could they do that?

Okay, so someone leaked the info. In my heart of hearts I consider that person a whistleblower. He/she reported what is arguably illegal activity by our government against US citizens. I think that is something worthy of reporting.

In the past what has usually happened during times of war is that we loosen our restrictions on the government for awhile but then come to our senses awhile later and tighten things back up again.

We are finally getting into the 'tightening' phase again. Most people are no longer buying the premise that we are in a never-ending war which requires the most extreme methods from now on.

The claims by apologists that 'we are at war, we are at war' are starting to sound lame.

Jon Marcus | May 23, 2006 11:37 AM

Brian,

Okay, let's take your worst case scenarios. Take Geraldo first. (Please!) He violated the agreement he (and all other embedded reporters) made. Because of that, I'd've had no problem with him being punished. (As it was, he got off easy because he was working for the White PR team, aka Fox. http://www.cnn.com/2003/WORLD/meast/04/01/sprj.irq.geraldo/index.html)

But if some non-embedded reporter had gotten a drunken officer to spill the same info, I'd say the consequences should fall (heavily) on the officer, not the reporter. In other words, it's not the job of the press to keep secrets, it's the government's.

And just to address an expected objection, if the reporter had gotten the informaion in an illegal fashion (e.g. breaking into the Pentagon) that'd be a different issue. They'd be liable for the illegality of their actions.

Re the aircraft (FWIW, that's the registration number or tail number, not the call sign.) I'm not positive what you're talking about. But my guess is that those were the planes the CIA was using to "render" disappeared prisoners to "black sites" where prisoners were being tortured. The administration had denied any such thing was happening. The planes used by the CIA were identified by their tail numbers, which allowed the press to trace where they'd been. The tail numbers were an integral part of the story.

And again, it was the government's job to keep the secret. You say the press shouldn't have any special privileges. Should they have special limitations? Or are you saying that I should be locked up if I happen to photograph the wrong plane at O'Hare?

darren | May 23, 2006 12:03 PM

The problem as I see it is a bit more nuanced than is necessarily being portrayed here. I'm watching my nation in wild eyed horror as an entire group of people that had traditionally held complete mistrust over everything government rapidly turn around and become apologists insisting that that same government needs absolute power, and doesn't have to tell the people shit. Well just as I argued with them about the former that when they say government is the problem, they are saying they themselves and I are the problem. I say speak for yourself. This is a government of, by, and for the people, and I'm tired of suffering because most are too lazy to be involved in the government they are a part of.
No reporter worth his or her salt and having two functioning brain cells would broadcast or print troop movements, attack plans, or positions (as someone else pointed out, Geraldo springs to mind), but this administration isn't really discriminating in what it calls secret. They just label anything they don't want us to know about because it is morally and ethically repugnant, as secret. There is no slippery slope that by protecting the first amendment will have reporters breaking into the Oval office to plant bugs. There are grey areas, but there are also things that are definately right or wrong. It didn't hurt our national security when we found out the government was torturing people, it hurt these bastard's ability to torture people. It is the governments job to keep things secret, but they have to be appropriate to begin with. It is the citizens job to make sure they are not overstepping their bounds. The fourth estate is there to help us do that. Leave them the fuck alone to do their jobs.

Brian Greenberg | May 23, 2006 02:17 PM

Jon Marcus:

Geraldo should be punished: Check.
Drunken sailor who spills the beans should be punished: Check.
Reporter who breaks into the Pentagon should be punished: Check.

Interesting corollary that we haven't addressed: what if a third party hacks into a network, pulls sensitive files, and then gives and/or sells them to the reporter. Hacking is definitely a crime. Is trafficking in stolen goods? Can he be punished for buying the material, but not for publishing it? Both?

Times prints picture with airplane tail numbers: They could easily have reported that the tail numbers helped them identify the planes without printing the tail numbers themselves. Legal or illegal (which, btw, the NYT is not necessarily qualified to judge), I don't think the pilots and/or prisoners on the plane deserve to be shot down because the New York Times made a unilateral decision. Remember - if the times could use the tail numbers to track the planes' movements, so could anyone with a rocket launcher.

You being locked up for photographing the wrong plane at O'Hare: No, but don't recklessly publish it in a newspaper if it's location is sensitive, OK?

Sam Greenfield | May 23, 2006 02:45 PM

Brian wrote: You being locked up for photographing the wrong plane at O'Hare: No, but don't recklessly publish it in a newspaper if it's location is sensitive, OK?

Actually, this isn't okay. If anyone can legally take a photo of a plane at a secure location, then there shouldn't be a problem with publishing said photo in the paper. Why do people assume that spies or bad people are lazier than journalists? More importantly, in the specific case cited, our government shouldn't be abetting torture! I am for every legal means of preventing our government from illegal and morally abhorent behavior. All citizens should be.

Brian also wrote: Where did USA Today learn of the NSA data mining program? Where did the Times learn of the non-FISA-warrant wiretapping? By definition, these are either leaks from inside the government, or illegal activity on someone's part to obtain the information.

Actually, your "by definition" statement is incorrect. USA Today most likely learned of the NSA data mining program from employees of phone companies, not from a government leak. Unfortunately, I can't find the original New York Times article, so I can't check their sources.

In any case, this is missing the point. For both the USA Today story and The New York Times story private parties were almost certainly breaking the law at the behest of the government. In the USA Today story, telecom companies were arguably breaking the law. In The New York Times story, the NSA and executive branch were arguably breaking the law.

How else besides going to the media should employees report violations of the law when the government is complicit in those violations?

Brian also wrote: What I thought was a slam dunk was the case where The New York Times steals secret information and publishes it. I still believe that to be the case. If you disagree, I apologize for my overzealous characterization. [Emphasis on "steals" sic.]

Brian, this is a very serious accusation. Do you have any documentation or evidence of this belief?

John wrote: Well, Sam, that's because I stole it from you. Haven't you heard? Plagiarism is the new black!

Damn. I thought it was just an homage.

Jon Marcus | May 23, 2006 02:47 PM

Brian:

Your point about anybody being able to track the movements is exactly right. Anybody could have done that, whether or not the Times published what they'd found.

Re legality, it's irrelevant. The story wasn't "They're doing something illegal." It was "They're doing something that they said they weren't."

Perhaps the tactics and methods being used are legal and necessary. But I think that's about as clearcut a "right to know" case as you can get. NB, I'm not saying we need to know that on 2134 May 17th, Gulfstream N4326J carried two Al Qaeda operatives from Alexandria to Dushanbe. (I totally made that up, Mr. NSA-guy! Really, I swear!) But if our President tells us "We operate within the law and we send people to countries where they say they're not going to torture the people," and we're secretly doing the opposite then revealing that is precisely what I expect a free press to do.

I'm not sure what the call is in your corollary. It'd probably depend on the specifics of the case. But it doesn't directly relate to the issue at hand: Is it okay to imprison reporters simply for publishing classified information?

Tim | May 23, 2006 03:51 PM

We didn't slap the government down when it started reinterpreting the 2nd Amendment, so why did we expect the 1st to stay sacred?

Brian Greenberg | May 23, 2006 04:45 PM

Sam - we're just going in circles now. It wasn't an accusation, it was a hypothetical. Read the rest of the thread.

Jon - you seem to have made both sides of the point. The NYT reported the story, but we didn't need to know (or see) the plane's identifying marks to understand the underlying issue. And yes, a terrorist could photograph the plane, get the tail number, and track its location. So the Times made it easier, as opposed to making it possible. That's still a problem, no?

PeterP | May 23, 2006 06:02 PM

Saw this over on DailyKos:

So let's recap: the executive branch can break the law. Oversight agencies cannot investigate because they don't have authorization. The Congress refuses to investigate because they don't want to, and they don't have authorization. The courts have to wait for somebody to file a case, and nobody can file a case because doing so would reveal state secrets and the plaintiffs don't have authorization. The press could write a story, but they could be thrown in jail because they don't have authorization.

Sad but true...

Bill | May 23, 2006 06:03 PM

Scalzi quotes Stone:
"Should the United States criminally punish the press for publishing classified information? This inquiry poses a prospect unprecedented in American history. "


and Kevin Q asks:
"In the 50-60 years since those statutes have been enacted, have they ever been used against a member of the press?"


It's not unprecedented, and they have been used against a member of the press. In the early 1980's, Samuel Morison was an intelligence analyst for the U.S. Navy. He also was a part-time employee (a "stringer") of the Jane's Defense group. As he was trying to obtain full-time status with them, he passed along some satellite photos of Soviet ships, which they published in Jane's Defence Weekly. He was convicted of espionage and of theft of government property.

He appealed the convictions, and the opinion of the appellate court rejected a First Amendment defense (among other defenses). The Supreme Court declined to review the case, thus it is settled law.

While Morison was prosecuted primarily in his capacity as a government employee, rather than a member of the press, his appeals tried to take advantage of his "press-like" activities, and were rejected. The fact that he was part of a journalistic establishment afforded him no protection at all.

As to whether reporters should get a "First Amendment exception" to statutes, Justice White said in BRANZBURG v. HAYES that:
"It would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws."

Scalzi's original post would seem to deny this. While he, as a writer, and the staff of the NYTimes, as writers, may like the freedoms of the press to be absolute, they are not, and no court has ever entertained the notion that they are. The appellate opinion in MORISON is very edifying on this subject, especially as it applies to national security information. One of the points made in a concurring opinion is:
"Presented with First Amendment, Fourth Amendment, and other constitutional claims, the Court has held that government restrictions that would otherwise be impermissible may be sustained where national security and foreign policy are implicated. "

It would be nice if the courts, Congress, and the president read the constitution literally and as it is plainly written. But that ship sailed a long time ago -- all amendments are subject to interpretation, and none of the freedoms are absolute. If AG Gonzales started doing his job as if the language of the Bill of Rights were literal, a whole bunch of federal prosecutions would go away. (I recently read a statistic that implied that something like 1/4 of all prisoners in federal pens were in there for possession of drugs of one form or another. I don't read any enumerated powers of Congress to say that someone can't possess something, yet they claim (and are granted by the rest of society) this power from the Interstate Commerce Clause, even when there is no commerce involved in the "criminal" act, nor does anything cross state lines.) Now this may be a good thing (I bet the readers of Whatever are more libertarian than society at large, and may agree with this proposition), but it isn't what society as a whole wants, or has agreed to (passively, and explicitly). And the laws have to work the same for all of us (even reporters) if they are to have any meaning at all.

Face it, it's against settled law to disseminate classified info to people who aren't eligible to properly receive it. The fact that so few cases have been prosecuted against members of the press doesn't mean that it is okay for newspapers to do so -- it may mean that no president to date had the desire to go up against organizations that buy ink by the barrell. But if it happens now, the proper response isn't to say that Gonzales is dumber than a dog, but to work to change the law so the press gets a specific pass.

John Scalzi | May 23, 2006 06:31 PM

Bill, the Morison case was about someone stealing classified information, not about someone publishing it (which is why, so far as I can see, no one at Jane's was prosecuted). AG Gonzales would apparently like to suggest journalists can be prosecuted for publishing classified information, regardless of how that information was obtained. Fevered imaginations in this thread notwithstanding, there's not a rash of journalists working part-time as thieves and spies, pilfering classified information out of government facilities. So the Morison case is not particularly relevant to what Gonzales was suggesting, or for that matter what I'm concerned about. Also and incidentally, Morison was clearly a moron.

mythago | May 23, 2006 11:35 PM

I don't know why you and Mythago both assume we're only allowed to care about one

I don't know why you'd drag out such a hoary old chestnut as the false dilemma and expect to slide it by.

Concerns about a badly-behaved press are different than concerns about a badly-behaved government. The press, for example, does not have sovereign immunity; it does not have an executive branch, nor police power, such that if you go around telling everybody that Jayson Blair is a plagiarist, the NYT will have your ass thrown in jail.

Anonymous | May 24, 2006 02:25 AM

Originally posted by John Scalzi:
Bill, the Morison case was about someone stealing classified information, not about someone publishing it (which is why, so far as I can see, no one at Jane's was prosecuted).

I don't think we are in broad disagreement here. Morison likely wouldn't have been prosecuted if he were not a government employee. But he clearly was also a member of the working press, and I brought him up to refute the idea that there hasn't ever been a journalist prosecuted for disseminating classified info. And stealing was only half of his crimes -- two counts of theft of government property, two of espionage.

AG Gonzales would apparently like to suggest journalists can be prosecuted for publishing classified information, regardless of how that information was obtained.
And I contend that the reason this has never been done before is not that the constitution prevented it, but because previous administrations either:
1) Thought it was a very bad idea from a governance and/or public policy standpoint, or
2) Believed it was political suicide.
(One thing to note about politicians whose approval ratings are in the cellar, and are already held in contempt by the press: There is not much to be gained by the politician in aggressively protecting the free press)

If the current adminstration successfully prosecutes a reporter for divulging classified information, it would almost certainly go to the Supreme Court, and we may all find out that John Scalzi is right. But the privilege that is being asserted here does not currently exist in law (at most, it currently exists only in the practice of current and former prosecutors/Attorneys General), and it won't exist until the Court establishes it.

Even Geoffrey Stone, in the article you link to above, says that the government should be able to punish the publication of some secrets. It may be bad public policy to do so, he argues, and it certainly will be problematic figuring out exactly which secrets deserve that level of protection.

Another thing. Several commentators have asserted that the government classifies information for venal reasons:
I find it extremely discomforting to think that a sitting government can slap a "classified" label on anything it finds politically inconvenient
"classified" status -- that gets slapped onto absolutely everything
You're accepting of the notion that the government classifies information to protect its reputation,
The question is whether the government can shut down public dissent by simply labeling anything potentially embarassing as "classified",

Now, the government can keep information secret for a number of reasons. Health records are private, as are tax records, business secrets encountered in contract negotiations, court records can be sealed, diplomatic secrets, etc. But for the purposes of the Gonzales discussion, we are talking about national security information, which is classified under the authority of (mostly) Executive Order 12958.

EO 12958 (and policies, regulations, etc. issued under its authority) lays out who gets to classify documents and the tests that have to be met to classify something (essentially, disclosure may cause damage to National Security). Often, the details of what can be classified and at what level must be written up in a Security Classification Guide, that is approved by someone who has been given the authority to classify (usually an Agency head or his delegate).

In other words, government employees don't go around classifying stuff willy-nilly to cover asses, to protect the boss, to keep someone from being embarassed, etc. I'm not so naive to believe that this is never happened, or that an overt excuse for classifying a document may in fact be a false front for another reason, but the standards for classifying something, and then handling it after the fact, are rigorous enough that arbitrary classifying isn't as common as some commenters here seem to think.

And if you accept the need to classify information for national security at all, then surely the programs used by our intelligence agencies would fall under that category. Which is what Gonzales is talking about.

John Scalzi | May 24, 2006 08:50 AM

Anonymous (but almost certainly Bill) states:

"And stealing was only half of his crimes -- two counts of theft of government property, two of espionage."

But inasmuch as he'd be charged for espionage regardless of whether the information was published or not, the publication aspect is not relevant. And again, Jane's was not prosecuted for disseminating the information.

I certainly agree that if you steal documents from a government facility, being a journalist does not shield you from prosecution, and more than being a journalist will shield you if you commit other crimes and claim you were writing a story on the subject. I seem to remember at some point in the past some story about a journalist getting caught shoplifting and declaring he was doing a story on shoplifting. He was arrested anyway, as I recall, and that was all to the good.

Morison's situation is I think further complicated by the fact he was also a government employee working with classified materials. In the proceeding, it's clear he's treated as a government employee who leaked information to the press, not as a journalist -- a Daniel Ellsberg, not a Woodward or a Bernstein.

Also, and interestingly, Morison was eventually pardoned of his crime, so that may or may not have relevance for this being an useful example of anything. It should be noted that in the letter requesting the pardon, Senator Moynahan of New York notes Morison as someone who leaked information to the press, not as a member of the press himself.

"But the privilege that is being asserted here does not currently exist in law (at most, it currently exists only in the practice of current and former prosecutors/Attorneys General), and it won't exist until the Court establishes it."

Well, that's getting the Constitution backwards, though, isn't it? We have a free press via the 1st and 14th Amendments; via the 9th and 10th amendments, things are legal until adjucated otherwise. The presumption should be that the privilege exists unless the government can show that it ought not, rather than being that it doesn't exist until a court establishes it.

"but the standards for classifying something, and then handling it after the fact, are rigorous enough that arbitrary classifying isn't as common as some commenters here seem to think."

Possibly, but as noted earlier in this thread, this particular administration has gone out of its way to classify information that was already in the public domain; it also asserts secrecy far more often than other administrations have done in the past. I'm willing to believe arbitrary classifying is not common; I am also willing to believe it's become more common recently, and I suspect (although, of course, cannot prove) that this increased secrecy of the current administration would go against it should it attempt to prosecute journalists; the claim of necessary secrecy trumping other constitutional right hasn't gone over particularly well in other recent court findings one could name.

In a theoretical sense, I think that there are indeed probably secrets which present a real and present danger to the life our nation. In a practical sense, I suspect rather strongly that the number of those secrets is a mighty small divisible of what this current administration would say they are.

And also in the case of this current issue regarding the NSA and its phone database, if the government is breaking the law in its collection of information on American citizens, then in my opinion the public's right to know its government is lawless outweighs by a considerable margin the government's desire to keep the program secret.

Sam Greenfield | May 24, 2006 09:08 AM

Just in case folks think that journalists are not prosecuted for breaking the law, check out the Chiquita Banana case from 1998. The reporter pled guilty to breaking into Chiquita's voicemail systems. I do not know what his sentence turned out to be. You can read about the case at Salon in their story, Rotton banana, at the the Columbia Journalism Review at Banana peel, and at the American Journalism Review in their story Bitter Fruit.

I do not know of a single journalist who supported Gallager breaking into Chiquita's voicemail system.

Brian Greenberg | May 24, 2006 11:24 AM

John:
And also in the case of this current issue regarding the NSA and its phone database, if the government is breaking the law in its collection of information on American citizens, then in my opinion the public's right to know its government is lawless outweighs by a considerable margin the government's desire to keep the program secret.

I agree with you on this. But here's an important question: given that there's been no investigation and no trial, who gets to decide if they're breaking the law? In this case, it appears to have been employees of one or more phone companies who, we can probably assume, are not lawyers, judges, or constitutional scholars.

I realize that if the government is breaking the law, these employees have few other options (perhaps calling their congressmen - who are supposed to provide oversight in the first place? But maybe they're on the take too, right?) So I'm curious as to your opinion on this: if it's subsequently proven that the NSA has not broken any laws, can we go back and prosecute these employees for divulging secret information? How about the journalists? Are they then accessories to that crime?

Or even better (since it's more likely what will happen): the question of whether the NSA broke the law is never settled (either no investigation, or an investigation that leads nowhere). Can these employees (or the journalists) claim in a courtroom that they did what they did because the government broke the law? Or does the government get the "innocent until proven guilty" pass at that point?

John Scalzi | May 24, 2006 11:59 AM

Brian Greenberg:

"So I'm curious as to your opinion on this: if it's subsequently proven that the NSA has not broken any laws, can we go back and prosecute these employees for divulging secret information? How about the journalists? Are they then accessories to that crime?"

People who leak classified information may already be prosecuted for their action as far as I know, which is why most states have journalist shield laws, although the federal government does not -- which is why sometimes journalists go to jail to protect their sources. So that part of your question is moot.

As to whether journalists should be charged as accessories, quite clearly I don't, regardless of whether the NSA is ever charged with a crime, as this would create a substantial chilling effect on a free press. Nor can one seriously suggest that the public interest in and the newsworthyness of this particular case is predicated wholly on the legality of it.

Brian Greenberg | May 24, 2006 12:22 PM

Nor can one seriously suggest that the public interest in and the newsworthyness of this particular case is predicated wholly on the legality of it.

I guess that's the point I'm driving at: any secret - legal or illegal, classified properly or improperly - is going to be newsworthy, because people just love hearing secrets (hence the whole celebrity/paparazzi culture). So if the point of this whistle-blower-type oversight, then we can think about definining that subset of circumstances better. If the only standard is "newsworthy," then we're OK with the NYTimes printing our nuclear launch codes...

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