Bush Slams Leak of Terror Finance Story

[Ziggurat]

Yeah. But, since they aren't being held responsible, obviously they did no wrong.

So why request that the article not be printed?

Are you claiming it's not possible that an action can be wrong as long as you have the legal right to perform that action?

You've been incoherent on this topic from the start, CF. You called something censorship when it wasn't, and now you're implying that the NYT cannot have done anything wrong if they didn't do anything illegal. I wait in anticipation for your next leap of logic.

 

[JamesDillon]

The NYT could be held responsible for violating the Espionage Act, particularly since they were requested to not print the article.

The great thing about the First Amendment is that it includes things the government doesn't want printed. I don't see any way that a prosecutor could get around First Amendment protection in this. That is to say, no, the NYT couldn't be convicted of violating the Espionage Act.

 

[Apollyon]

Yeah. But, since they aren't being held responsible, obviously they did no wrong.

Yep, and OJ was innocent too.

Do you also extend the same courtesy of your logic to Rove and Cheney?

The NY Times has not been held responsible...yet. On second thought, Bush already wagged his finger at the NYT. So the ball may be rolling in the direction where we'll see at least an investigation of this issue.

So why request that the article not be printed?

I would imagine they made the request because the article exposed the operational details of a classified program.

 

[Apollyon]

The great thing about the First Amendment is that it includes things the government doesn't want printed. I don't see any way that a prosecutor could get around First Amendment protection in this. That is to say, no, the NYT couldn't be convicted of violating the Espionage Act.

Maybe you missed the article I linked previously?

I'll repost it:

http://www.commentarymagazine.com/Production/files/schoenfeld0306advance.html

Just as the Freedom of Speech does not permit you to say anything you please, Freedom of the Press does not guarantee that a newspaper can print anything they desire, particularly when it involves State secrets.

 

[pgwenthold]

You people are all missing the big picture. Did you see the description Luke T posted?

20 people talked to the paper about this supposedly classified program!

We have 20 people who have violated their security clearance, and you morons want to talk about the friggin newspaper?

 

[JamesDillon]

http://www.commentarymagazine.com/Production/files/schoenfeld0306advance.html

Just as the Freedom of Speech does not permit you to say anything you please, Freedom of the Press does not guarantee that a newspaper can print anything they desire, particularly when it involves State secrets.

I didn't miss it, I just don't find it very persuasive. Morison and AIPAC appear to be the only cases cited in support of the thesis that the Espionage Act might apply to the NYT, but neither case involved a classic instance of journalists obtaining and publishing classified information. Morison was a government employee who was himself entrusted with classified information that he chose to leak to his own publication. The AIPAC case involves lobbyists who shared classified information with a foreign diplomat and with journalists. There's no question that the Espionage Act applies to leakers; the question is whether it applies to journalists who publish the information obtained from leakers. I see nothing in the article you cited providing any persuasive legal basis for the suggestion that it does.

We have 20 people who have violated their security clearance, and you morons want to talk about the friggin newspaper?

So what do you suggest we discuss about that? Obviously there are legal penalties that may apply to those 20 sources, and while they probably felt their actions were justified, they chose to take on the risk of being discovered and punished. Is there anything else to say about that?

 

[CFLarsen]

Are you claiming it's not possible that an action can be wrong as long as you have the legal right to perform that action?

Sure it can be wrong. But in a legal sense, we have to have the court's decision.

You've been incoherent on this topic from the start, CF. You called something censorship when it wasn't, and now you're implying that the NYT cannot have done anything wrong if they didn't do anything illegal. I wait in anticipation for your next leap of logic.

I asked if it wasn't an attempt of censorship. Try to read what I actually say.

Yep, and OJ was innocent too.

Do you also extend the same courtesy of your logic to Rove and Cheney?

There's a huge difference between the two cases. OJ made it to court, this one doesn't seem as if it will even go that far.

Rove and Cheney are innocent until proven guilty. Don't you agree?

The NY Times has not been held responsible...yet. On second thought, Bush already wagged his finger at the NYT. So the ball may be rolling in the direction where we'll see at least an investigation of this issue.

Is it up to the President to determine what is legal? "It's not illegal if it's the President who's doing it"?

I would imagine they made the request because the article exposed the operational details of a classified program.

In which case, it will end up in court.

 

[pgwenthold]

Just as the Freedom of Speech does not permit you to say anything you please, Freedom of the Press does not guarantee that a newspaper can print anything they desire, particularly when it involves State secrets.

Newspapers do not have the security clearance to be given state secrets in the first place, nor should they be entrusted with them.

 

[Kopji]

Newspapers print stuff for the public.
Governments keep secrets.

Doesn't it seem a little screwed up that when the government can't keep secrets it asks the newspapers to?

 

[JamesDillon]

Doesn't it seem a little screwed up that when the government can't keep secrets it asks the newspapers to?

Wouldn't it seem really bloody [rule8]ed up if the government could control whatever the newspapers were allowed to say?

 

[Apollyon]

I didn't miss it, I just don't find it very persuasive. Morison and AIPAC appear to be the only cases cited in support of the thesis that the Espionage Act might apply to the NYT, but neither case involved a classic instance of journalists obtaining and publishing classified information. Morison was a government employee who was himself entrusted with classified information that he chose to leak to his own publication. The AIPAC case involves lobbyists who shared classified information with a foreign diplomat and with journalists. There's no question that the Espionage Act applies to leakers; the question is whether it applies to journalists who publish the information obtained from leakers. I see nothing in the article you cited providing any persuasive legal basis for the suggestion that it does.

The Espionage Act may or may not apply, as the author of the article I linked argues.

However, he also cites the following from the US Criminal Code:

§798. Disclosure of Classified Information.

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

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

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

(b) As used in this subsection (a) of this section—
The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;

Notice section (a) where it specifically says or publishes.

As an aside, here's the supposed explanation from Keller on the NTY's decision to print this article followed by a rebuttal by Snow from the Treasury Department:

http://www.nytimes.com/2006/06/25/b...letter.html?_r=1&oref=slogin&pagewanted=print

http://corner.nationalreview.com/post/?q=YzM5ODExMTZlMjAyODVmZjk3YTQyM2FmNGQ0ZDU3OWQ=

The tone of the government's response to publishing this seems to point in the direction of a potential prosecution attempt for this. They seem to be more than just a little peeved.

 

[JamesDillon]

The Espionage Act may or may not apply, as the author of the article I linked argues.

However, he also cites the following from the US Criminal Code:


Notice section (a) where it specifically says or publishes.

I think I may have been unclear above, and have facilitated a misunderstanding. I'm not arguing that, on its face, the Espionage Act doesn't apply to the publication of classified information in a newspaper. Clearly it does. My argument is that the First Amendment, which trumps any act of Congress, would render a prosecution under the Espionage Act unconstitutional in these circumstances. The prosecutor would have to find some exception to the general immunity for the press provided by the First Amendment in order to bring a case against the NYT. I see no basis in current law for such an exception; therefore, despite the fact that its actions would otherwise be criminal, I think that the Times is immune from prosecution (or more precisely, from conviction) on this, despite any threats that the administration may have made.

 

[Ziggurat]

Sure it can be wrong. But in a legal sense, we have to have the court's decision.

That's a nonsensical answer. Courts do not decide right and wrong. They decide legality and illegality. Since I asked about a hypothetical action that was NOT illegal, a court has no role in determining whether or not the action is wrong.

 

[Apollyon]

I think I may have been unclear above, and have facilitated a misunderstanding. I'm not arguing that, on its face, the Espionage Act doesn't apply to the publication of classified information in a newspaper. Clearly it does. My argument is that the First Amendment, which trumps any act of Congress, would render a prosecution under the Espionage Act unconstitutional in these circumstances. The prosecutor would have to find some exception to the general immunity for the press provided by the First Amendment in order to bring a case against the NYT. I see no basis in current law for such an exception; therefore, despite the fact that its actions would otherwise be criminal, I think that the Times is immune from prosecution (or more precisely, from conviction) on this, despite any threats that the administration may have made.

If what you say is true, how can a publication ever be held accountable for libel? Wouldn't the general immunity provided by the First Amendment also protect them in that case?

 

[CFLarsen]

That's a nonsensical answer. Courts do not decide right and wrong. They decide legality and illegality. Since I asked about a hypothetical action that was NOT illegal, a court has no role in determining whether or not the action is wrong.

You are talking about morals, then.

 

[JamesDillon]

If what you say is true, how can a publication ever be held accountable for libel? Wouldn't the general immunity provided by the First Amendment also protect them in that case?

It would, except that courts have recognized an exception to the First Amendment for libel actions in limited circumstances. The common law of libel was somewhat limited by the First Amendment, which permits recovery against newspapers only in a narrow set of circumstances that depend on whether the plaintiff is a public or private figure, and the nature of the allegedly libelous statement.

I can't find a very good discussion of the applicable standards, but Wikipedia briefly mentions it here. The brief answer, though, is that there is an exception for libel under existing law. No such exception of which I'm aware would allow criminal prosecution for publication of classified information.


Edit: I would also add that, under existing law, political speech is regarded as the most highly protected form of speech under the First Amendment. As the disclosure of classified information would likely be considered political speech, the administration would have a very hard time making a case that a new exception should be crafted in this circumstance.

 

[Apollyon]

It would, except that courts have recognized an exception to the First Amendment for libel actions in limited circumstances. The common law of libel was somewhat limited by the First Amendment, which permits recovery against newspapers only in a narrow set of circumstances that depend on whether the plaintiff is a public or private figure, and the nature of the allegedly libelous statement.

I can't find a very good discussion of the applicable standards, but Wikipedia briefly mentions it here. The brief answer, though, is that there is an exception for libel under existing law. No such exception of which I'm aware would allow criminal prosecution for publication of classified information.

What you point out is that law or legislation can trump the First Amendment under limited circumstances. At one time there was no prior precedent for libel either in regard to the First Amendment. That implies that a new precedent could also be established in this case, particularly considering, as you have acknowledged, that there are already applicable laws on the books that govern the behavior related to a publication disclosing classified information.

 

[JamesDillon]

What you point out is that law or legislation can trump the First Amendment under limited circumstances. At one time there was no prior precedent for libel either in regard to the First Amendment. That implies that a new precedent could also be established in this case, particularly considering, as you have acknowledged, that there are already applicable laws on the books that govern the behavior related to a publication disclosing classified information.

Well, not exactly. It's never the case that legislation can trump the Constitution. What I pointed out is that courts can read exceptions into the Constitution permitting certain governmental actions that would otherwise be precluded.

You're right, though, that a court (it would ultimately have to be the Supreme Court) could conclude that an exception should be created to the generally applicable First Amendment rule in this case. For the reasons discussed in the edit I added to my last post, though, I find it quite unlikely that a court would do so. In any event, under the law as it currently stands, I don't think there's any basis for conviction.

 

[gumboot]

Regardless of whether the newspapers should get their hands slapped for publishing classified information or not, surely in some way it's *good* that they publish stuff like this.

That way the government *knows* it has people talking about stuff they shouldn't to people they shouldn't. Everything else aside, I would think from the government's point of view it's more worrying that government personnel are disclosing classified information than it is worrying that newspapers are publishing that information.

Who else might these government personnel be disclosing this information to?

-Andrew

 

[hammegk]

Edit: I would also add that, under existing law, political speech is regarded as the most highly protected form of speech under the First Amendment. As the disclosure of classified information would likely be considered political speech, the administration would have a very hard time making a case that a new exception should be crafted in this circumstance.

It's an interesting problem. How would you view applying Espionage Act provisions to the person(s) ultimately responsible for the decision to knowingly publish info classified as effecting national ecurity?