Bush Slams Leak of Terror Finance Story

It sounds to me like a re-hash of the Pentagon Papers case:

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB48/

The NYT got leaked classified material about US policy on Vietnam and published it. The executive branch got mad and got an injunction on the grounds that it harmed national security. It went to the Supreme Court

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB48/supreme.html

Justice Stewart’s opinion, joined by White, set the standard for what the Supreme Court would countenance for national security-based restrictions on press freedom – disclosure must “surely result in direct, immediate, and irreparable harm to our Nation, or its people.” Stewart wrote: “We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable harm to our Nation, or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us.”
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This is old news. The Supreme Court has ruled that the NYT has a protected right to publish material that is not in the best interest of the national interest to be published.
 
pgwenthold said:
This is old news. The Supreme Court has ruled that the NYT has a protected right to publish material that is not in the best interest of the national interest to be published.
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Thanks. I was not familiar with that case, but that's exactly the rule I would have crafted. It's nice when the Court gets it right.
 
pgwenthold said:
It sounds to me like a re-hash of the Pentagon Papers case:

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB48/

The NYT got leaked classified material about US policy on Vietnam and published it. The executive branch got mad and got an injunction on the grounds that it harmed national security. It went to the Supreme Court

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB48/supreme.html



This is old news. The Supreme Court has ruled that the NYT has a protected right to publish material that is not in the best interest of the national interest to be published.
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That's not quite what the SC decided. They determined that publication was permissable so long as it does not "surely result in direct, immediate, and irreparable harm to our Nation, or its people."

With the Pentagon Papers that claim was definitely arguable, as the disclosure concerned government policy in the escalation of involvement in Vietnam. In this case it's an ongoing, covert program that has been successful in apprehending terrorists, so that determination may not be so cut and dried as a simple policy paper. It seems like an apples and oranges comparison.
 
Apollyon said:
With the Pentagon Papers that claim was definitely arguable, as the disclosure concerned government policy in the escalation of involvement in Vietnam. In this case it's an ongoing, covert program that has been successful in apprehending terorists, so that determination may not be so cut and dried as a simple policy paper. It seems like an apples and oranges comparison
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It seems like you're arguing that the facts of this case support a different outcome, not that the rule is inapplicable. It sounds to me like the Pentagon Papers case is right on point in terms of the legal standard; the debate about whether the application of that standard should lead to a different outcome in this case is still open, of course, but we've made some progress in identifying the test that the Court would likely apply.

I can't really see the argument that disclosure of this program seriously undermines national security, though. As I said earlier in this thread, do we really think that the terrorists are so stupid that they don't realize that we can track their financial transactions or listen in on their phone calls? However, if a court were to review the evidence and determine, applying the test cited above, that the disclosure of such information should be prohibited because it would seriously undermine national security, then I think I'd be ok with that.
 
Apollyon said:
That's not quite what the SC decided. They determined that publication was permissable so long as it does not "surely result in direct, immediate, and irreparable harm to our Nation, or its people."

With the Pentagon Papers that claim was definitely arguable, as the disclosure concerned government policy in the escalation of involvement in Vietnam. In this case it's an ongoing, covert program that has been successful in apprehending terrorists, so that determination may not be so cut and dried as a simple policy paper. It seems like an apples and oranges comparison.
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This publication will "surely result in direct, immediate, and irrepartable harm to our Nation"? There are a lot of standards in their, including "immediate."

To claim that it may hurt an ongoing process already fails the standard that it is immediate harm. Moreover, it fails the standard that it surely will do so. That this _could_ hurt the war on terror is not sufficient grounds, either.

It may harm the longterm effectiveness of the program, but Stewart's opinion says that isn't good enough.
 
CFLarsen said:
Sure I did. I wanted to know if it was the case.

Do you understand the word "if"?
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My apologies. I should have realized you really couldn't figure out the answer yourself. I promise to never make that mistake again.
 
pgwenthold said:
To claim that it may hurt an ongoing process already fails the standard that it is immediate harm. Moreover, it fails the standard that it surely will do so. That this _could_ hurt the war on terror is not sufficient grounds, either.

It may harm the longterm effectiveness of the program, but Stewart's opinion says that isn't good enough.
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I don't know about that-- an immediate reduction in our ability to effectively combat terrorism might well constitute an immediate harm. I'm not sure that the standard need be interpreted as a Brandenburg-type one in which the publication would have to result in the imminent detonation of a nuke in Times Square in order for the prior restraint to be valid.
 
JamesDillon said:
I agree with you that this would make an interesting test case. I'd like to see how the Court would rule on it, should the administration decide to pursue the matter.
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Andrew McCarthy agrees that this would be a very difficult case to win under the Espionage Act, and the risks of a loss would be catastrophic; the leaks would continue, and NYT and WP reporters would continue to get Pulitzer prizes for publishing national security secrets, but would now have the Supreme Court's seal of approval. Better to give the reporters immunity from prosecution and then demand the names of the leakers, and jail the reporters if they don't cooperate:
Jail is an unpleasant place. Recall that it took Judith Miller only a few months there to rethink her obstructionist stance in the Plame case. And the mere specter of imprisonment inspired Matthew Cooper to surrender his source on the verge of a contempt citation.

Chances are that the journalists who have exposed leaked national-security information over the past several months do not want to spend 18 months in prison. If they were put in that position, we would very likely learn who did the leaking. Those officials could then be indicted. A prosecution against government officials does not entail the same free-speech complications.

On the other hand, even if the subpoenaed reporters flouted the law by never giving up their sources — even if they took the incredibly arrogant position that their secrets take precedence over the nation’s secrets — 18 months’ imprisonment is a powerful disincentive. Fewer reporters would run the risk. Fewer would-be government leakers would bank on a reporter’s perseverance. The leaks would dry up in a hurry.

That ought to be the goal here.
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Sounds to me like someone with a very clear persepective.
 
JamesDillon said:
It seems like you're arguing that the facts of this case support a different outcome, not that the rule is inapplicable. It sounds to me like the Pentagon Papers case is right on point in terms of the legal standard; the debate about whether the application of that standard should lead to a different outcome in this case is still open, of course, but we've made some progress in identifying the test that the Court would likely apply.

I can't really see the argument that disclosure of this program seriously undermines national security, though. As I said earlier in this thread, do we really think that the terrorists are so stupid that they don't realize that we can track their financial transactions or listen in on their phone calls? However, if a court were to review the evidence and determine, applying the test cited above, that the disclosure of such information should be prohibited because it would seriously undermine national security, then I think I'd be ok with that.
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I agree the case is right on as far as existing legal standard goes and applies as well. And, yes, I'm arguing outcome. My apples/oranges statement was concerning a policy statement vs. a clandestine program. They are quite different animals in substance.

I also remember what you said earlier in the thread concerning the stupidity of terrorists and replied that the terrorists surely must be that stupid because the program has resulted in the apprehension of some of them. I believe in his reply to Mr. Keller, Mr. Snow also intimated something along those lines as well. :)
 
CFLarsen said:
It is definitely a tell-tale sign if the government thinks it can tell a free press what it can and cannot do.
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I'm going to regret this...

Claus, how is calling an action "disgraceful" tantamount to calling it "forbidden," let alone taking any kind of quantifiable measures to actually forbid it?

Please keep in mind that we only have presidents, not monarchs, so apply the remarks accordingly.
 
CFLarsen said:
It is definitely a tell-tale sign if the government thinks it can tell a free press what it can and cannot do.
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How is that telling the free press what they can and cannot do? I don't see the government telling them they can't do that anymore. They are merely expressing an opinion of what the "free press" IS doing by publishing classified information. The government is right too because nothing from any of these stories leaked by the NYT has benefitted US citizens one bit. I didn't get even so much as a "NSA is a [rule8]ing violation of your privacy!" temporary tatoo in the mail yet. :D
 
CFLarsen said:
It is definitely a tell-tale sign if the government thinks it can tell a free press what it can and cannot do.
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Still hiding behind those "ifs", I see. You haven't actually said whether or not you think what Bush did is an attempt at censorship. Let's get a straight answer, not one with "ifs" which you can later use to deny that you actually think what you implied.
 
CFLarsen said:
It is definitely a tell-tale sign if the government thinks it can tell a free press what it can and cannot do.
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I am not sure what government thinks, what I do know, is government is critisizing while at the same time talking about free speech. Unless you are saying that government should not comment I am not sure what the point of this thread is.
 
CFLarsen said:
It is definitely a tell-tale sign if the government thinks it can tell a free press what it can and cannot do.
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Yes, how does the government stating its objections to the NYT's behavior constitute censorship?

Having said that, the government can, in certain circumstances, tell the press what it can and cannot do. As has been discussed, there is something called the Espionage Act. Unfortunately, the fact that so few convictions have occurred appears largely from what I have read to be due to concerns about having to reveal additional classified information in the prosecution of the cases. So the government complains but chooses not to pursue the matter further. However, that doesn't mean that the person leaking or publishing the information is any less guilty or that his/her actions were any less illegal.

With the First Amendment comes the responsibility to use it wisely.
 
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