Prosecute the New York Times

By TheSophist Posted in Comments (81) / Email this page » / Leave a comment »

The good lawyers (that an oxymoron?) at Powerline have posted an invaluable piece on the New York Times' possible criminal liability for publishing the NSA intelligence piece.

The key graf:

Which raises the question: Does the First Amendment afford the Times immunity from criminal liability for its conduct? In New York Times Co. v. United States, 403 U.S. 713 (1971)("the Pentagon Papers case"), the Supreme Court held that it was presumptively unconstitutional for the government to restrain the publication of classified information. In separate opinions concurring with the order allowing the Times to continue publication of its Pentagon Papers stories, however, a majority of the justices clearly contemplated that the Times could be held responsible for any violation of the law involved in publishing the stories. For a scrupulous consideration of the Pentagon Papers case in this context, see Harvey Silverglate's Boston Phoenix article: "The Gray Lady in shadow."[links in original removed]

I urge you to read their entire article.

Calling for criminal prosecution of anyone is a fairly serious matter.  But a couple of things occurred to me while reading the Powerline piece, as well as thinking about what has happened in the past several weeks.

(more)First, suppose it had been Al Riyadh, a Saudi newspaper, rather than the New York Times that had published stories about a classified U.S. intelligence operation.  Is there any doubt that any reporters, editors, or other staff of Al Riyadh based in the United States would now be under arrest for espionage?  Is there any doubt that those responsible for leaking the classified information would be being ferreted out by the counterintelligence agencies of the United States in an enormous mole hunt?

I do not think so.

Second, if it had been an American blogger who published classified intelligence on his blog, is there any doubt that he would now be under arrest for espionage and his sources and contacts hunted down as spies?

Not for me.

So why society, Congress, and this Administration gives a pass to the New York Times for engaging in what is clearly an illegal act, and allows the reporters, editors, and the publisher who have all engaged in spycraft to continue to operate is beyond me.  It has to stop.

The First Amendment protects the media's right to publish, its right not to be censored.  It does not eliminate the normal consequences that all Americans would face for doing so.  There is no special privilege for the "press" to violate laws, trample upon national security, and compromise our secrets.  There is no special immunity for the New York Times over an individual blogger, or a foreign newspaper.  All must obey the law, or else face the consequences.

It is time to prosecute the Times.

-TS

Are you sure the New York Times is the spy here?  Isn't the spy the one who infiltrated the US government and then shared the information with the enemy?  That is, isn't the 'leaker' the one who should get thrown in prison?

After all, the Times was not the organization responsible for keeping the information secret.  The leaker was.  The Times violated no confidences.

Neil,

I urge you to read Paul's post on Powerline that I linked to in the original diary.  In relevant part:

Assuming that the terms of the statute apply to the leaks involved in the NSA story, has the Times itself violated the statute and committed a crime? The answer is clearly affirmative. The statute makes knowing and willful "publication" of the proscribed information a crime. Moreover, under the basic federal aiding and abetting statute -- 18 U.S.C. § 2 -- in willfully helping the leakers publish their disclosures, the Times is as culpable as they are and punishable as a principal.

The leakers should absolutely be found and prosecuted for espionage.  The Times should also.

-TS

from TITLE 18, PART I, CHAPTER 37

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

Seems to me the paper facilitated the release of this info

Powerline makes a strong case against the Times. But, Neil is correct that the leaker is the real problem.

Until the Justice Department actually starts prosecuting all leakers and starts putting them in jail, this behavior will continue.

I read that but don't see what the Times broke.

They have to have published the information in a "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."

That's a higher standard than just divulging any old secret information.

First, as Paul Mirengoff points out, under 18 U.S.C. § 2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

The New York Times has clearly, and has admitted to, aiding, abetting, inducing, and procuring the illegal leaks.  It is, then, punishable as a principal.

Second, the full passage you quote from is:

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

My reading of that passage, based on all of those 'or's, is close to this:

Whoever knowingly and willfully [bunch of clauses removed] publishes [bunch of clauses removed] any classified information

That standard is met, and admitted to, by the New York Times.  The "prejudicial to the safety" clause is an independent grounds for prosecution, as is the "for the benefit of any foreign government" clause.  As I read it, every single clause separated by "or" is an independent grounds for prosecution.

-TS

First, I don't see how the NYT could have "aided, abetted, counseled..." this leak if they didn't know  this information existed prior to the leak.

Second, It seems perfectly clear to me that it's not sufficient just to divluge information related to the communications intelligence.  It has to be published, according to the text quoted on Powerline, in a manner prejudicial to the safety, etc. of the US.

Not everything wrong is illegal.  Don't go after the NYT because they're a big easy target.  Go after the proper criminal.

...whether or not it was "prejudicial to the safety or interest of the United States."

That part is debatable.  That is a pretty high hurdle...

Personally, I feel more safe knowing that there are people that see information like this and feel that the public has a right to know it.  This is different than disclosing technical secrets or intelligence assets.  These are policy decisions.  I would not want it released HOW the information was collected or decrypted, but I see no problem in debating the ability and power of the President to order warrantless surveillance.

Prosecutor calls on Joe, the owner of a pawn shop, and asks, "Listen, Joe, this here gold watch in your case -- it was taken off of a murder victim.  Can I get the name and phone number of the guy who sold it to you?"

Suppose Bill says, "No, sorry, I won't tell you that."

Is he aiding and abetting the criminal?  What if he knew that the gold watch was stolen, and had willfully and knowingly taken the stolen merchandise?

Now, if Federal Prosecutor calls Bill Keller and asks, "Listen, Bill, I'm investigating this serious crime of divulging national secrets.  Seems someone at the NSA talked to a reporter of yours in violation of law.  Can I get the name and phone number of the guy your reporter spoke to?"

Suppose that Bill Keller says, "No, sorry, I won't tell you that."

Is he aiding and abetting the criminal?  What if he knew that the information was secret, that the leak was in violation of the law, and had willfully and knowingly taken the information and agreed to provide anonymity to the criminal?

Is he now aiding and abetting?

Finally, I'm really really curious how you read that clause then.  How do you interpret the meaning of that problematic word: "OR"?

-TS

That I don't think that a crime did not happen.  Whoever leaked this did in fact break the law.  Just because I don't see a problem with this particular leak does not mean I think it was legal.  I think it would be hard to prove that the Times broke the law.

but, for example,  if you  knew of a classified spy plane (during a time of war which we are in now) and you told your local paper about it and they in turn published your info (in affect facilitating the disbursement of the information) you would both be guilty of releasing the information.

You have the "right to spill the beans" and the paper has the right to print it, but the people have the right to punish you for doing so. IMO  

the guilt of the New York Times, but there's more than enough there to charge them, the publisher, the editor, any reporters who have been involved, and prosecute them.  I personally don't think it's that hard to prove NYT's guilt, seeing as how they've more or less admitted to breaking the law against publication of classified intel.  The aiding and abetting charge, I'm thinking, won't be all that hard to prove either.  Anonymity of the source, who is a criminal, is a pretty good sign of aiding and abetting.

As the Powerline gents point out, the NYT is counting on the fecklessness of the Republicans and this White House, as well as the political cover that many Americans (especially but not exclusively those on the Left) who approve of blowing this particular state secret provide.

But from a legal point of view, they're taking an awful huge risk, and the WH should call them on it.  Prosecute them.  Let them defend themselves in court.

Above all, prove to the American people once and for all that no one -- not even the Editor of the New York Times -- is in fact above the law.

Constitution says government can't censor publication of classified documents; fine.  But it also appears that those who do so face prosecution and the normal penalties of breaking the law.

Again, if it had been Al Jazeera, or an individual blogger, instead of the 'august' NYT, do we even have this debate?

-TS

If they're hiding the name of the leaker after the fact, that sounds to me like simple obstruction of justice, not espionage.

Because again, they have to be doing it prejudically to American interests.  They can easily claim that American interests favor shielding anonymous sources, and a lot of Americans will agree with them on that.

Again, how exactly are you reading the word "OR" in the statute cited?

You seem kinda stuck on the prejudicial to the interests, but... that's an "OR" not an "AND" in front of that clause there.

-TS

Are you telling me that the NYT published the information "for a foreign government to the detriment of the United States?"

that the NYT published the information.  Let's look at the the text of the law, highlighting the relevant language:

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 under this title or imprisoned not more than ten years, or both.

So we have:

Whoever knowingly and willfully publishes any classified information concerning the communication intelligence activities of the United States or any foreign government Shall be fined under this title or imprisoned not more than ten years, or both.

Hmm.  Seems to me that Pinch is going to jail.

-TS

I read it like this:

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

That is, i see the "prejudicial..." part as modifying the use, in any form.

So, that "OR" in front of "uses in any manner prejudicial to the safety" you are interpreting as an "AND".

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--

I must say, that is a novel method of interpretation.

-TS

The punctuation would be different if that was the meaning. There would be an extra comma in there.

I come down on the other side of the fence than this statement:

I think it would be hard to prove that the Times broke the law.



The Bush Administration expressly requested that the NYTimes should not disclose this classified program, and insisted that the disclosure of said program would harm national security.

The NYTimes was forewarned.

with people justifying expicit damage to this country and viloation of the law? They published classified intelligence information! Which part of wrong, damaging, detrimental don't you understand?

So it's OK for them to publish the patrol schedules and locations of our nuclear missile submarines and information on how to locate them? It's OK for them to publish the launch codes for our ballistic missiles? It's OK for htem to publish the control codes for the GPS satellite network?

What kind of information is it not OK for them to publish? Where do you draw the line? Or do you draw the line at all?

Not all that is wrong is illegal.

I don't think the NYT broke this law, but that does not mean I think they did the right thing.  Why interpret laws as the beginning and end of what is right or wrong?

are you talking about? The gvt. has made nothing explicit.  

I cannot support warrantless wiretapping of American citizens no matter how much I support President Bush. It is a step in the direction of a police state. No one who loves the US and our constitutionally derived freedoms should think that the Executive Branch can do whatever it wants to as long as it "briefs" a few members of Congress.

Sam Brownback recently said:  "I do not agree with the legal basis on which they are basing their surveillance -- that when the Congress gave the authorization to go to war that that gives sufficient legal basis for the surveillance."

In fact, let's say what they did was noble and wonderful and deserving the Pulitzer, the Nobel, and the Espy all in one.  The citizens of New York will erect a statue in their honor in Times Square.  Great.

Nonetheless, NYT broke the law.  Maybe it's an unjust law, but it pretty clearly violated both laws cited.

So at a minimum, Pinch Sulzberger, Bill Keller, and the reporters involved ought to go argue proudly in court that yes, they violated the law, but they did so out of some overriding concern for the public weal, and should be exonerated.  If the jury buys that, fine, they go free.  But they should be prosecuted and given that chance to play martyr in a courtroom.

If as a result, they go to jail, then why, they should emulate their former colleague Judith Miller and walk into Leavenworth with heads held high, and serve their 10 years with pride.

At this point, I would be happy to send them congratulatory emails to their prison account, telling them how inspiring their actions are, and how their example is moving, and how they could look forward to a hero's welcome home sometime in 2016.

Now, as I've said, is there any doubt that none of this debate is happening if it wasn't the NYT but Al Jazeera that published the NSA leak?

-TS

You can't support "warrantless wiretapping of American citizens" but you can support acts of espionage carried out by American citizens against their own government in violation of two Federal laws?

Do I have that correct?

So... for example, if one honestly believes that Israel, as the only democracy in the Middle East, should not be denied intelligence vital to its survival, and one feels that it is a moral duty as a Jew to help ensure the survival of Israel, then one should feel free to pass on classified intelligence to an ally of the United States?  This guy would be surprised to hear that.

-TS

of how you feel about the intercept program (not wiretapping, intercept, considerable difference), or whether the

President does or does not have the legal authority to conduct the intercepts, the statute is fairly clear. The publishing of information about methods and processes, or  information derived from intelligence gathering is a criminal offense.

Why is it so difficult to separate the intercepts and the divulging of the intercepts; the disclosure is a crime regardless of whether the gathering was legal or illegal. People are willing to spend enormous intellectual effort to justify damaging this country to prove that their concerns for civil liberties are better than someone else's concerns for civil liberties.

Like I said where do you draw the line? This disclosure is OK? What about the guard schedule and access codes for the Pantex plant. Is that OK?

That's where we disagree.  I think they're clear of breaking the law Powerline mentioned.

The issue of right and wrong is orthogonal to the issue of legal or illegal.   I think some of us here are getting a bit emotional, and allowing the two to be confused.

I didn't exactly need a link to understand your point, such as it is. I have no idea about the legality or illegality of the NYTimes publishing the information which is why I said nothing about it. Rather, I, an average American--non-lawyer--have a visceral reaction to the Government spying on me--if in fact, they did. And I suspect that we support it to the detriment of the Republican Party.

so easy for you to gloss over the Executive Branch potentially breaking the law? The reason it upsets me is because this will be the story that the public will focus on. I don't believe the public will be angry at the NYTimes for divulging illegalities by the Administration.  

On our back and forth, you made clear that you have a very novel interpretation of legal language.  You still haven't addressed the problem of that tricky word, "OR" for your particular view of the law.

Right/Wrong is orthogonal, as you say, to legal/illegal -- but the usual application is when the law is unjust in some way.  The proper argument, it seems to me, is to argue for the repeal or change in the law.

What in the anti-espionage law would you like to change?  (Apart from changing "OR" into "AND" -- which should free up CIA agents to divulge information that isn't 'prejudicial' in their judgment to the U.S., whether higher ups feel otherwise or not.)

This line of argument makes no sense.  A whole lot of folks think it's wrong to make terminally ill patients suffer, and think it's right to give them a 'peaceful dignified death'.  But seeing as how our homicide laws don't contain a euthanasia provision, the person who dispenses such 'mercy killings' will still be prosecuted, and if 12 people agree, will be convicted.

Lionize the NYT as moral heroes if you must; call for their prosecution for breaking the law.

-TS

I'm going to get out of the way of this witch hunt, since you're clearly going to label anyone who defends the NYT on the criminal issue as a fan of the NYT, despite any explicit statements that the NYT didn't do the right thing.

assuming that the President broke the law. The most recent polling suggests that the public, whose anger you are trying to forecast, don't seem to be remotely concerned, or at least 64% are pleased that we are doing it. Don't sound like public anger to me but what do I know.

There has been considerable discussion here and other blogs about the legalities of the actions and there are arguments on both sides of the equation. For some really good analysis I suggest you visit PowerLine, they have some excellent analysis grounded in the President's Article II authority and the inability of Congress to constrain that by legislation.

I submit that if the Justice Department finds a set of c*jones and actually brings charges against the traitors at the Times the focus of the story will be focused where it belongs; the betrayal of the safety and security by the Press and members of the Democratic Party.

it doesn't sound all that hard at all. If it sounds hard its because there have been few times in our lifetimes where the statute has been invoked.

is that we can Not stop them from monitoring such things as communications.  now, the moment they try to use what they find that way in court (for whatever reason, including to get a warrant) or to control people (usually via blackmail) we punch them out for it.  But they Have Access if they so desire to have access.

Well by zuiko

If you are in touch with Al Qaida, I for one, am relieved that your communications are being monitored.

I'll have to wait and see if the NYT's lawyers can answer your analysis any better than Neil does. At this stage it appears to me that your argument cannot be challenged head on. Do you suppose they will try to trump it with the 1st Amendment?

Jail time appears in my crystal ball regardless, a la Judith Miller. This time there are more who know and probably Co. records involved, so maybe the jail cells won't be as lonely as they were for Judy. Wasn't there some speculation that one of the reasons she eventually caved is that the prosecutor was bringing up the possibility of actual charges? I.e., aren't there possible obstruction charges in addition to the espionage charges you mention?

Folks have been wondering why they held this story for so long. I am beginning to think it is because they were listening to their lawyers. And the potential pressure from the left as a result of Risen's book forced them to leap into the abyss. Perhaps subpoenas will finally create some transparency in the news room.

But this is all a game of strategy for them. Here's the gambit they might have hatched before the leap. Put up a big fight for show, then eventually make a deal to turn over the perps when it gets too hot, on condition of immunity for all other possible charges. Then redeem that act through relentless publicity against the prosecution of the perps. Liberal reputation saved/enhanced, criminality dodged, lots of stories that sell, so profits will meet or exceed legal fees. If subpoenas uncover something like this...damned if I'd see justice in any deal that lets them play around with national security on the basis of such personal interests.

resign over the silence in response to his questions?

Just follow the law or petition to amend it.

Have you been following the steady dribble of articles from the NYT revealing more and more details about the NSA program controversy. For example, they are now exposing the interaction between the NSA and the telecom industry which allows the NSA to compile statistical patterns on overseas calls without obtaining the content. It discusses how this information is actually more useful in identifying terrorist activity than monitoring content. If I was a terrorist I think this technical aspect would be rather helpful to me. But I am not and I don't agree that the NYT is protecting my civil liberties by revealing this. If they are relying on that to justify their actions... well I guess we'll just have to have a Roman coliseum style thumb vote. But I'll defer to TheSophist's approach.

"potentially" in my reply to you. I am assuming nothing regarding the guilt of anyone. You, however, are kidding yourself. You have set yourself up as judge and jury of the NYTimes (read your last paragraph). This is belief and passion masking itself as sober reason.

Not exactly a model of transparency in the news room. They probably didn't count on their own editors calling them out. Isn't he demanding a more coherent explanation of why they waited to publish this (his view)important civil liberties story? Perhaps that is an angle they didn't anticipate. Too bad we can't hear what is going on between them behind the scenes. I think you have hit on a bellwhether. If he doesn't resign we ought to expect some much more specific and coherent explanation which the public editor himself endorses. The explanation ought to have documentary support. If I keep on this subject though I fear I may drown in a sea of my own cynicism. But hey, I think that is a great point you make.

...the Washington Times agrees with you that the NYT should be prosecuted. An article called "New York Times vs. America" was published recently - the author has written several anti-New York Times articles (I can't remember the name off the top of my head).

And frankly, I agree too.

While doing that, they should try CNN as well.

bring charges, I didn't say "take them out and shoot them" --- we can save that for after the trial.

According to the Washington Post, hardly a member of the VWRC, it appears that the New York Times actually held publication of the NSA story for over a year after the White House asked them not to publish it.  The White House apparently had argued that publication "could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny."

So the NYT did do the right thing initially:

In a statement yesterday, Times Executive Editor Bill Keller did not mention the book. He wrote that when the Times became aware that the NSA was conducting domestic wiretaps without warrants, "the Administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country's security."

"Officials also assured senior editors of the Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions," Keller continued. "As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time."

So what happened?  What changed during the year that made Sulzberg, Keller & Co. to go ahead and let Al Qaeda know that their phone lines were tapped?  NYT hasn't said, which is interesting in and of itself for an organization that purports to be a purveyor of information.  But the WaPo article contains this tantalizing clue:

In the ensuing months, Keller wrote, two things changed the paper's thinking. The paper developed a fuller picture of misgivings about the program by some in the government. And the paper satisfied itself through more reporting that it could write the story without exposing "any intelligence-gathering methods or capabilities that are not already on the public record."

That's interesting.  Two inferences may be made based on this statement.

First, any attempt to cast the NYT as some Great Defender of Our Civil Rights Against the Evil ChimpHitler Fascists is seriously undercut by these revelations.  Whatever their concerns about our civil liberties were, they elected to prioritize national security over them.  Until, that is, "a fuller picture of misgivings about the [NSA] program by some in the government" could be developed.

So let's see... these great champions of civil liberties waited until they could find more "some in the government" with misgivings to publish the story?  That smells very strongly of political motivation, rather than some principled civil liberties protection motivation, doesn't it?

Second, apparently, the NYT "satisfied itself" that these NSA techniques they were going to expose were already in the public record.  That's interesting.  Was the fact of surveillance against Al Qaeda phone calls also in the public record?  Isn't that the single biggest blow against our national security interests from the publication of the article?  Plus, if the NYT has a defense that these secrets were in fact not secrets at all, that's fine.  They are free to mount such a defense.

The U.S. Attorney in charge of the prosecution should give them the chance to put forth that defense.  What better forum than a public trial to determine whether the classified information published by the NYT was in fact in the public domain already.

-TS

First, I think the NYT held the story because they couldn't see a way to use it to harm the Bush White House initially.  Seems they waited until they could find more misgivings by more unnamed people in government.  

I have no evidence, but if I had to guess, I think they probably got in touch with a some of the top people in the CIA (the Agency's war against this Administration is fairly well known), were told that the NSA program is horrible, and thought they could then use the story to embarrass Bush politically.  Having top CIA officials talking about how bad the NSA program is, how this President just doesn't care about the Constitution, etc. would really damage Bush.

What I further believe happened is that the CIA folks backed out once they realized that the NYT was going to go public with the info.  Because they knew that what they were doing, i.e., leaking to NYT reporters, was illegal and would get them not just fired, not just lose security clearance, but sent to prison for a long time.

Second, the 1st Amendment is no shield to criminal liability, as the Powerline's analysis showed.  I do agree with the Powerline people that the NYT is counting on (a) fecklessness of the Bush White House, and (b) some sort of political cover from those who think that the NYT performed a great and wonderful service for the country.  I think the NYT people know that their goose is cooked, legally speaking.  On the other hand, the prosecution would have to convince 12 jurors, in deep-blue New York City most likely, that the New York Times -- their Grey Goddess -- broke the law.  As if.  Probably easier to convict white men for the murder of a black man in the segregated South of the 1950's.

So maybe it's a smart gamble after all.

But the prosecution should be brought in any event, first because NYT looks as guilty as sin, and second, to send a message that there is in fact a line that may not be crossed in the five year (and counting) campaign against this President.  Breaking the law is one such line.

-TS

I don't see anyone here who has rebutted you and if the legal argument really is that clear... just wondering, if you were their counsel, would you really have advised them they could afford to take the risk based on a New York jury. I am sorry to pull your excellent factual post off into speculation but I think their lawyers better have a very good counter argument; better than: sure, we knew we were criminally publishing classified national security info but believed our crime was justified because the government might have violated some unknown person's civil liberties. Is the judge going to instruct the jurors that they can decide in favor of the defendant on that basis?

Plus, if they go all the way to trial, aren't they going to have to risk giving up a lot of internal information/communication to subpoenas? Aren't they going to be sitting in jail and paying fines until they give up the sources and cooperate fully in their conviction? If they don't cooperate, aren't they obstructing? Will they get caught in perjury if they don't plead the 5th? If they do cooperate, how is it going to look when they claim innocence and help send their sources to jail when clear evidence shows they knew the criminality from the start?

IMO the Old Grey Lady best have something better up her petticoat than a NY jury, else she's slipped up and let the fox into the hen house. I'm new to the blogosphere. Will the Powerline argument draw out a legal rebuttal from NYT faithful? If so I hope to further benefit from your excellent analysis :>). And of course I admit that I am cheered by the prospect it presents, given my sense of what's right and wrong in today's world.

It isn't a very effective smokescreen to be trotting out empty threats against the New York Times when the the executive branch will never:

  1. prosecute

  2. testify

  3. provide evidence for or against

The only way any kind of trial could be held would be under similar rules (or  lack thereof) that the administration is finding difficult to use against enemy combatants. It's much easier and more effective for the administration to let it die down; they're much more interested in shining less light into that arena, not more.

It's bluster, and not even particularly good bluster.

where it's possible to prosecute those who unlawfully, wantonly, and for political purposes endanger national security?

Is there such a place?

when the prosecutor has no desire to shine any light into the matter whatsoever.

Who will bring the charges? When you answer that, then ask why on earth it would help them to do so.

Or, I suppose you think the Justice Department will take the risk of more exposure of secretive operations so they can prosecute the media?

Really not going to happen.

you may be on to something.

Under the scenario you outline the government can never have any actual secret information; the government only has the secrets the press allows it to have. So the newspapers of are the final arbiter on the US security.

In that case, perhaps we need some sort of 'prior restraint' for national security. Perhaps something like the FISA court where the government can go before a high level court made up of multiple appellate-level judges lead by the Chief Justice to request a publication ban order. If issued this order would prevent the press from printing any information covered by the order. Violation of the order would result in arrest and confinement, with no right of habeus corpus, and without appeal.

Although I think a free press is critical to a free people, I don't find any place in the Constitution that gives the press the right to make decisions about our security.

assume that the President did not follow th elaw.

PowerLine has some excellent discussion about the Article II authorization of the President's actions in time of war.

but I happen to believe that the proper place to debate the legalities of classified  intelligence programs is in a closed door session of the Intelligence Committee, not the front page of the New York Times.

I want the government to conduct its business in accordance with the law. But I am convinced by the Article II arguement if nothing else. As far as I am concerned if someone known to be an Al Queda associate is calling you at home or at work I think we have a right, and an obligation, to know what's being discusssed. If you are a citizen then we get a warrant as listen in. If  you are not a citizen then we don't need a warrant.

But I most certainly do not want the New Yrok Times or the Washington Post to be deciding what secrets we are allowed to have; that right and obligation belongs to our elected representatives, it absolutely does not belong the "Pinch" Sulzberger.

If I were the counsel for the NYT... wait, let me focus on trying to think like liberal Manhattan lawyer... okay, there.  Where was I?

Oh yes, I would advise the Times either (a) not to publish the story until someone else breaks it, in which case it can be argued that the "classified information" is no longer classified, or (b) publish the story, but have the leakers go public so that they would have some sort of status as whistleblowers.  This is assuming that I had been consulted prior to the decision to publish.

But if, as I think may have happened here, I were brought in after the fact, to strategize on a defense, then yes, I would count on the NY jury and argue policy (sometimes known as 'pounding the table' -- my Crim Procedures professor told us that maxim: If you have the facts, argue the facts; if you don't have the facts, argue the law; if you have neither, then pound the table.)

I don't think the judge can instruct the jury as you've described it; but I guess my view is that it wouldn't much matter what the judge's instruction is if the jury is put together correctly.

I'd like to see that trial.

-TS

Putting my nose to the trail you (and gamecock) set I landed on these interesting reads.

http://www.nytimes.com/2006/01/01/opinion/01publiceditor.html?ex=1136869200
&en=7e251dc8687763af&ei=5070


http://forums.nytimes.com/top/opinion/readersopinions/forums/thepublicedito
r/publiceditorswebjournal/index.html

An interesting point is that Ombudsman Calame grants Sulzy and Keller some benefit of the doubt for their stonewalling based on the claimed 'need to protect the anon. sources.' That will be an interesting point to bear in mind if the Justice Dept investigation plays out in Judy Miller style.

Regarding our up-thread speculations, the link to the NY Observer article found in the links above tends to support your theory about not bringing in lawyers before hand. It is claimed there that they put Floyd Abrams (there is one liberal I find value in listening to) on standby on the day they published, but turns out they didn't need him. And I have heard two interviews with Risen - the man is so completely blithe to the possibility of jail time, I don't think it possible that he has discussed with a lawyer. Furthermore, Keller said in his statement that It is not our place to pass judgement on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood. So they apparently weren't even relying on lawyers to advise on the legality of the program or the civil liberties question.

I am now more convinced that the NYT principals should be grand jury targets. Some (above) are arguing that the 4th branch of government is too powerful and the Executive will be afraid to prosecute. I hope that is not so. Anyway, it is the leakers who hold the flogging stick, not so much the NYT, and a majority seems to advocate their prosecution.

Finally, I am doubting this justification about not revealing details of the program. In their steady dribble of subsequent articles they revealed how NSA is working with Telecoms to data-mine traffic through the switches. And how NSA has convinced Telecoms to route international traffic through domestic switches. That's a nice technical tidbit for a terrorist that would be hard to miss given all the current attention on the NSA.

But the wording doesn't require any 'use' of the information in any way at all in order to constitute an offense.  Simply 'publishing' it is an offense.

Furthermore, publishing it was indeed a 'use' of the information that was 'prejudicial to the safety or the interests of the United States,' every bit as much as would be publishing the landing sites for D-Day in advance of the fact.

The Times may not agree that publishing the information was illegal or even 'prejudicial' in either case, but they shouldn't be the ones who get to make that call.  Neither should the leakers.  The situation cries out for a legal determination.

But perhaps we should wait until AFTER Judge Alito's confirmation.  Just to keep the waters calm, you know.

they did break the law, assuming what has been published above is a correct recitation of the law.

"If you are a citizen then we get a warrant as listen in. If  you are not a citizen then we don't need a warrant."

And if you are a citizen talking to a 'non-citizen' we don't need a warrant either, unless we intend to prosecute you for some domestic crime.

Publishing IS the form of use in this case.

They have to have published it in a manner prejudicial to American security, or in the service of a foreign power.

The vile traitor who told his reporter is the one who decided what didn't need to be secret.

If that leaker told the NYT, he could have told Al Qaeda for all we know.  Go after him.  The NYT is a red herring.

or their equivalents, have been going on since the 1930's, sometimes with a lot less benign intent than is held today.

IF the Executive Branch were breaking the law in its attempt to defeat our sworn enemies, the proper place to debate it is through channels, in the IG's office, in the Senate Intelligence Committee, or in a similar CLASSIFIED environment.  That way, a problem, IF IT EXISTS, can be addressed, without disclosing to our enemies a program that might not be improper at all, let alone illegal.  (Running to the NYT removes you from whistle-blower status and puts you squarely in the 'leaker' category.  It's a last resort to be used in only extreme circumstances, which this clearly isn't.)

I haven't read Risen's book (and I don't intend to unless the DNC gives me one), but the NYT article that disclosed the program did little else BUT disclose the program's existence.  There didn't even seem to be an accusation of any significant infringement of anybody's civil liberties, just the accidental monitoring of some (a few) conversations involving "U.S. persons only."

and agree with TS.  I really don't understand how you can interpret the clear wording any way other than that 'publishing' itself constitutes a crime in this case.  But I haven't read the whole statute, just the excerpts printed here.

'publishing' the information is in itself a crime.  Without the publication, disclosure to a reporter is meaningless.

I absolutely agree the leakers should be prosecuted.

A sentence that long and badly written is never clear, I think.

the mere publication of the information WAS prejudicial to the safety of the U.S.  It transmitted classified information to the enemy.

But that's not a necessary condition of the law as it appears to be written.

because, as TS and PowerLine point out, there is some "fecklessness of the Bush White House...." That may make it unlikely to result in a test case.

Something about "no law abridging freedom of the press."

In contrast to other clauses and amendments, that one has always been interpreted pretty strictly.

I think they have to publish first, then perish.

How does the administration allow "the Agency's war against this Administration" to continue?

Shouldn't that be decapitated?

I suspect there are things happening in Langley that we are not privy to just yet.

But yes, that has to be stopped.  Not because the President is Republican, but because there are fewer things I can think of that is more dangerous than having your secret intelligence services get involved in policymaking.  South Korea, for one that I know of, for decades has had that problem.  The line between intelligence gathering and policymaking is a relatively bright one, and it really cannot be allowed to be crossed from either direction.

A while back, some people were speculating that Cheney's office put political pressure on CIA analysts to come up with a particular 'right answer'.  That speculation has been discredited -- although it continues to live on as a Known Fact.  That was considered a Big Deal.  Well, it is a similar Big Deal if intelligence is attempting to sway policymaking through bad intel or through leaks and other information campaigns.

-TS

between:

(a) calling Osama bin-Laden and telling him directly,

(b) calling the reporter of Jihad Weekly,

(b) calling the webmaster of a jihadist blog that publishes news from around the mujahideen world and telling him,

(c) putting the information on your personal blog, and

(d) telling a NYT reporter for publication?

Any way you dice it, the leaker has revealed classified information to someone who is not authorized to have it, with the intent to make the information known by the rest of the world.

Of course you go after the leaker.  Do you not go after Jihad Weekly?  Jihadist.org?  New York Times?

The red herring here is in conferring upon the New York Times some sort of privilege or immunity that is granted to no one else, legally, politically, or morally.

-TS

most certainly did decide it. The cretin who leaked it to the press committed a crime.

But no one held a gun to the head of Pinch Sulzberger to force his paper to print the information. Publishing this information is a violation of the law regardless of how it came into their possession --- publishing it is a crime.

I was reacting to the prior post in which it appeared that under that interpretation classified information was whatever the New York Times decided it was. Given that scenario there is no way to protect anything without the approval of Pinch Sulzberger.

found here: http://bostonphoenix.com/boston/news_features/other_stories/multi_5/documen
ts/05188678.asp

So let's not kid ourselves: five of the nine justices would have approved of criminal prosecution of the newspapers in the Pentagon Papers case, even though a majority would not authorize a pre-publication injunction. Therefore, this often-touted victory for freedom of the press was in fact quite limited and foreshadowed a battle of monumental proportions

What gives the New York Times the right to decide whether or not divulging the illegally disclosed information is "prejudicial to the safety or interest of the United States ...?"

Last time I checked, there exist elected and appointed officials, including career intelligence officers who are explicitly charged with deciding whether or not something should be kept secret so as not harm "the safety or interest of the United States."

Not a single one of them is the New York Times.

More support for your analysis can be found here. This article is decidedly anti-Bush (considers NSA program illegal) but yet it highlights the clear legal jeopardy for NYT principles.

Especially interesting is the page 2 discussion of the Pentagon Papers case as precedent in which " there were three justices (Burger, Harlan, and Blackmun) who thought the court should have prevented publication altogether, and three (White, Stewart, and, again, Blackmun) who went out of their way to suggest that the DOJ consider indicting the newspapers after publication."

Full article

It's a good analysis from the other side of the political fence.

And it also contains the defense the NYT is sure to pursue:

Legal means are one thing, but political will is another. If Bush goes after the Times, he could spark a conflagration potentially more destructive to a free press -- or to his administration -- than Nixon's 1971 Pentagon Papers machinations, which included efforts to stop publication of the classified study of the Vietnam War, the aborted prosecution of leaker Daniel Ellsberg, and the intention to prosecute newspapers (and their employees) that ran the document. All backfired on Nixon.

Many believe that the Times performed an incalculably valuable service when it reported last month on a top-secret National Security Agency program -- almost certainly unlawful -- involving presidentially (but not court-) approved electronic surveillance of message traffic between people in this country and locations abroad. The leak investigation by the Department of Justice (DOJ) has begun. What has received virtually no attention is that the Times and its reporters, editors, and publisher are at serious risk of indictment by a vengeful White House concerned not so much with disclosure of national secrets as with revelation of its own reckless conduct.

Give me a typical New York jury and I think I could probably get the NYT off on this basis....  Nonetheless, prosecution should be pursued each and every time the law is broken by the NYT or other self-appointed guardians of our civil liberties.  

If the liberals and Democrats want to pass legislation exempting the press from such prosecution, let them propose it.  That would make for interesting congressional debate as well.

-TS

Your prescience regarding their defense was confirmed for me by this part.

This is not to say that prosecution would be a cakewalk for the DOJ. Although it easily could obtain an indictment, getting a conviction is another story. The media defendants would doubtless be represented by top-flight lawyers -- this time, however, by criminal-defense lawyers skilled at convincing ordinary people, rather than First Amendment counsel arguing nice legal points to judges as was the case in the Pentagon Papers conflict as well as in the disastrously unsuccessful Plame "reporter's privilege" battle. In addition, the case likely would be tried in either New York or Washington, DC, where prosecutors would be confronted with those cities' famously skeptical and independent -- even ornery -- jurors, who would be required to agree unanimously in order to convict.

Defense lawyers would doubtless argue, probably effectively, that their clients performed a public service by exposing official wrongdoing at the highest levels of government. Bush would, in effect, be placed on trial, along with the New York Times. One can imagine defense counsel quoting Thomas Jefferson that "between a government without newspapers or newspapers without government, I would surely choose the latter." It would be one helluva fight -- the fight that we never got to see between Nixon and the media.



However I am thinking NSA al Qaeda wiretaps != Watergate and Bush != Nixon.

Moreover, there will be two different courts, one with a New York or Washington jury and another with a national jury.

How good would a lawyer have to be to convince the judge to allow the administration's actions to be put on trial...relevance? If that works, its going to happen anyway in the leaker's trials. At any rate, it would appear that the lawyers can't argue the law for their clients, so they will have to argue that the value ("pound the table") of the service the NYT performed puts them above the law. I suppose that is good enough for your NY jury.

In the national court, they may try to put the administration on trial. But the claim that the NYT is above the law should draw the gong, especially after all the claims that not even the President should be above the law. Or perhaps I err in thinking that the "american people" would evaluate this rationally.

I'm no lawyer but I still think the NYT will cut a deal to avoid trial, assuming the DOJ pursues them. BTW, just saw Ashcroft on O'reilly and he offered no tough talk toward NYT.

Since your hitting the ball so well, care to put on an AG hat and predict what they will do? (Personally, I like your own approach: set aside politics and proceed on principle).  

I think my writing this diary in the first place is probably a reaction to the sense that AGAG won't do a thing about the NY Times.

He has the facts and the law on his side, but does he have the politics on his side?  If he pursues a criminal conviction, but loses, is that a net positive or a net negative?  How likely is he to win?

Let's say he does prosecute.  The Times' defense is that they performed a valuable public service by exposing the wrongdoings of the Bush Administration -- in effect, trying to classify not only themselves but the leakers as whistleblowers.  It's true that legally, no spy has ever been classified as a whistleblower, but with the country as it is today, I'm not sure that the defense wouldn't have an emotional edge with a NY/DC jury.  Plus, the Times would put forth some First Amendment claim -- despite the case law specifically exempting revealing national security secrets in the pages of the NY Times, and practically inviting the government to prosecute.  I could see a strong argument being made that banning pre-publication censorship of news makes no sense if the government can simply imprison the reporter, the editor, and the publisher after the fact.  A "strong chilling effect" on speech would be argued.

Those two things combined with a good bit of grandstanding in front of a friendly NY/DC jury about the evils of Smirky Bushchimphitler would probably get the Times off.

So I don't think the AGAG would do it at the end of the day.

To balance out this gloom, however, there is another possibility.

What is necessary here to get a conviction is to destroy the myth of the New York Times as the sainted protector of American liberty.  The key may be the leakers themselves.

Let's speculate that the leaker is some senior official in the CIA who has been waging a secret war against the Bush White House.  Whatever the public might think about the NY Times, I'm not sure that the sentiment extends to the leaker -- after all, whoever he is hasn't gone public.  Say the mole hunt is successful and the leaker is found.

He's looking at some serious jail time in some serious places, assuming that the people involved in the intelligence community even decides to go that route, as opposed to more creative punishment.  He might be willing to deal.

Because the story has been held for a year or so, there may be something to the idea that the NY Times had some other stuff going on in the background that would cast their actions in a quite a different light.  Could the DoJ flip the leaker to testify against the NYT?  Who knows?  Could some evidence surface that shows far greater complicity for the leak on the part of Risen and the Times?  Who knows?

But it may very well be that AGAG is biding his time, going after the leaker(s), perhaps knowing that catching the leakers themselves and nailing them to the wall would result in additional information/evidence that could lead to a successful prosecution of the NY Times as well.

-TS

that hasn't been explored at all.  If the CIA director decided to affect policy decisions based on his own philosophy, feeding slanted or one-sided information to any administration would be a way to do it.

The only way to prevent that for sure is to have administration-friendly people in charge, and policy-neutral people doing the work.

The same could be said for the State Department.

If you mean that I think that there is some legal reason that the Times couldn't be prosecuted, now or back in Ellsberg's day, that's incorrect. I'm saying that in order to prosecute, you have to present evidence. And there is NO WAY that Justice will present any evidence in this case, and probably for the same reason as with the PP, it's contrary to their ultimate desire, that it remain off the public table.

The Times isn't stating what's classified now any more than they did during the Cuban Missile Crisis, they are simply deciding when and where they will self-restrain. Back then it was for a couple of days, I believe, this time it was for a year. That's hardly deciding what is or is not classified.

 
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