NationStates Jolt Archive

It hasn't been held unconstitutional yet...



§798. Disclosure of Classified Information.

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

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

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

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


Is this intended to bar public speech? Does it clearly include writing about secrets in a newspaper?

Do you even need a motive?
violation [of the statute] occurs on knowing engagement of the proscribed conduct, without any additional requirement that the violator be animated by anti-American or pro-foreign motives.

It also doesn't have any statement within it that requires the US to be at war.

So, by this, should we be not only putting Libby and his pals in jail for 10 years, but the editors, publishers, board of directors, and the particular reporters who were involved in publishing the story about the NSA's surveillance program?

Or not?


BTW, Bush didn't draft this law...

A proper and needful arrangement, for the provision of the common defense.

It isn't about expressing opinions, it is about giving away facts.

The editors etc, will and can state that they were not reporting circumscribed FACTS, but instead were publishing FACTS divulged to them by a person or persons whom they could reasonably expect to be authorised to do so. They did what they were expected to do by someone who they had proper reason to believe was authorised to authorise them.

Pretty much what the operators in the Watergate case did.
That defense was upheld.

I do not believe it is unconstitutional until the courts rule it as such. Until such a time occurs, it is not unconstitutional.

Your posts seems like heavy-handed nonsense, a loaded question. We already know that "no" is the answer you want to hear, but you are presenting it under a veil of objectivity, like the other post "Which side to we want to err on."

I don't think the Downing Street Memo or the revelation of the falseness of the "Sixteen Words" or knowing what the people were doing at Abu Graib damaged national security, but I am very sure that issues similar to those are classified, just to prevent them from coming up. In those cases, god damn we NEED reporters talking about them.

National Security is all a farce to hide efforts to strip away more and more freedoms. There's a difference between that and annihilating a CIA resource for political gain or lying to investigators to obstruct the public's discovery of the truth.

Calling it heavyhanded is inaccurate.

It's constitutional.
And the NYT staff did nothing not allowed by the United States Penal Code.

A proper and needful arrangement, for the provision of the common defense.

It isn't about expressing opinions, it is about giving away facts.

The editors etc, will and can state that they were not reporting circumscribed FACTS, but instead were publishing FACTS divulged to them by a person or persons whom they could reasonably expect to be authorised to do so. They did what they were expected to do by someone who they had proper reason to believe was authorised to authorise them.

Pretty much what the operators in the Watergate case did.
That defense was upheld.


So...I'm guessing your poll needs reworking.

I do not believe it is unconstitutional until the courts rule it as such. Until such a time occurs, it is not unconstitutional.Why should I trust the Future of my People into the hands of these scum mostly Handpicked by Neocon Presidents?

http://goddoubleplusblessamerica.org/jest/card-us_supreme_court.jpg

The key phrase in all of that is "knowingly and willfully"

It is a matter of free speech vs national security and it encompasses far more than things published in newspapers.

Every high bandwidth communication device that the DoD uses, utilizes an encryption key in order to bulk encrypt information so that is it is not freely interpretable by anyone without the same key on the other end.

This is a broad rule that is designed to ensure ther operational security of the United States' military and government.

Now do I think that this rule should be broken in the name of the Constitution? Absolutely.

If a policy, practice or action that has been "classified" or given a classification of information protection by the government, violates the Constitution, then I believe the Constitution trumps the classification of the information and there is a right and responsibility to bring it forward to the appropriate places like the public and the courts.

I am not trying to debate the Constitutionality of the "Terrorist Spying Program", however it is my personal interpretation that it is Unconstitutional and therefore the NY Times did not violate any rules by making it public, as The Constitution is greater than classification. This is just an example to illustrate my interpretation, not an attempt to derail the thread.

Classified ≠ Legal, the Constitution overrules any other law in opposition to it, especially in the case of an illegal practice.

The law has never been held unconstitutional, but as I understand it, people have rarely been prosecuted under it.

The issue with the press publishing those reports is a touchy one. There was a long article I read about it when this was originally breaking, which analyzed the current situation in the context of the Pentagon Papers case.

It's not intended to bar public speech, but to keep information that may damage national security out of the public arena.

As for motive, the statute says right there: "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—"

You've got to knowingly and willfully put the information out into the public arena. If you do that, you're in violation.

It doesn't require the US to be at war. There's plenty of classified information that has nothing to do with an active war - ask the UFO nuts. :)

The Libby case is a different matter, because the argument there revolves around the status of Plame, rather than any actual information passing. If Libby wasn't aware that Plame's status was still classified, he could not have knowingly provided the information. That's something that the grand jury should have been able to determine, and since they didn't, that leads me to believe that he didn't knowingly violate this act.

The NSA program is different, and I do believe it represents a violation of the law, but I know there are a couple of whistleblower laws on the books that may protect some individuals, although I am by no means an expert.

We'll see - from what I understand, the Justice Department is investigating the leak.

I do not believe it is unconstitutional until the courts rule it as such. Until such a time occurs, it is not unconstitutional.

Isn't that a little like saying, it's not murder until the jury or judge rules it as such?

Isn't that a little like saying, it's not murder until the jury or judge rules it as such?

Accurate!

Don't Care, I'm sitting naked in a beanbag chair eating Cheetos

Accurate!

Well, accurate it may be, but if you see someone killing your friend you're not going to talk about the killer as "allegedly" being a murderer. And if that someone got tried and found innocent, you wouldn't shrug and go "wellp, he's not the murderer after all. Guess my eyes deceived!":p

I would think the law would apply to specific details of how spying took place, not merely saying that spying was going on. Example: You could say that the army has a code to pass messages, but you couldn't say, In the army code A=G B=F etc. (I know codes are more complicated than that) The point is you can say "The Government is spying against Americans" but you can't say "Download the CIA decoding software at www.ournewspaper.com"

The govenment has a necessary interest in protecting methods but has no right to protect illegal activities. The activity can be reported but not the exact method.

Sorry, but it seems to me that this is largely settled law.

As noted in BARTNICKI et al. v. VOPPER, aka WILLIAMS, et al. (http://www.law.cornell.edu/supct/search/display.html?terms=free%20and%20press&url=/supct/html/99-1687.ZS.html)


In New York Times Co. v. United States, 403 U.S. 713, this Court upheld the press’ right to publish information of great public concern obtained from documents stolen by a third party. In so doing, this Court focused on the stolen documents’ character and the consequences of public disclosure, not on the fact that the documents were stolen. Ibid. It also left open the question whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may punish not only the unlawful acquisition, but also the ensuing publication. Florida Star v. B. J. F., 491 U.S. 524, 535, n. 8. The issue here is a narrower version of that question: Where the publisher has lawfully obtained information from a source who obtained it unlawfully, may the government punish the ensuing publication based on the defect in a chain? The Court’s refusal to construe the issue more broadly is consistent with its repeated refusal to answer categorically whether the publication of truthful information may ever be punished consistent with the First Amendment.

So, as was noted by the published accounts around Watergate and the Pentagon Papers - information gathered by lawfull means is protected under the First Ammendment in areas of public concern. The courts may go after the person who spilled the info to the press, but not the press themselves.

Any attempt to compare this to the Libby case is also specious. The charges are directed at Libby for spilling the secret - not at the media for publishing it. No reporters or publishers were ever charged with anything related to their publishing the information given to them, only held in contempt for withholding information on their source.

Now, news source confidentiality is another picky legal area to tread in, but it is a completely seperate issue from the legality of the act of publishing the information once obtained by the press.


So your premise is a load of crap long since settled in the highest court - as any Constitutional lawyer will tell you.

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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



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

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

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

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

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



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

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

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

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

Is there clip notes?

it seems that this law is needlessly vague. and possibly dangerously so. this allows unscrupulous "dictators" (for lack of a better word) to carry out questionable actions under the guise of National Security. I do believe that this law is unconstitutional, however, it is necessary until better legislation can be drafted. (IMHO as always)

Naked-cheetos is owning "no"

Naked-cheetos is owning "no"
I figured that it made a better option than "Myrth"

I figured that it made a better option than "Myrth"
I'd have to disagree.

Myrth is always the best option available.

But seriously, I don't really think that it's a bad to arrest the people who disseminated classified information. It's generally regarded as something that cannot be done, because it theoretically puts the survival of the US Constitution in jeopardy and the rest. And given that we attempt to treat all crimes of a certain caliber equally, then this is the only thing that is just to do.

i can't say that i agree with you, but on the other hand i can't say that i don't. crazy huh?:headbang:

Try again Silli...

<<Big-assed snipped quote...>>


As lovely (not to mention slanted "Ohhhh the NYT are teh evil Liberal anti-Bushies") as the opinion piece is, it remains settled law under every case that has made it to the Supreme Court thus far - despite what side opinions and dissents might say that seems to make it sound less cut and dried as it is. Becuase dissents and opinions don't change the ruling. And this writer again does why you try and do, conflate the obstruction charge against Miller with a charge of publishing secrets by the paper. As I noted, these are very seperate areas of law.

He also uses completely bullshit premises, like:

As for whistleblowers unhappy with one or another government program, they have other avenues at their disposal than splashing secrets across the front page of the New York Times. The Intelligence Community Whistleblower Protection Act of 1998 shields employees from retribution if they wish to set out evidence of wrongdoing.

Yes, whistleblowers generally have tools at their disposal to report illegal actions by coworkers to authorites over those co-workers who can investigate and address a situation.

But who the hell do you report the President to when he is claiming executive privelidge? Who has the power of redress within the Intelligence Community to overrule him IF he is giving illegal orders? (I use "if" in the sense that this is the accusation made - not as a firm statement of fact)

The answer: nobody.


He then repeats the other bullshit talking point I've heard so much


One might go further. What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism. If information about the NSA program had been quietly conveyed to an al-Qaeda operative on a microdot, or on paper with invisible ink, there can be no doubt that the episode would have been treated by the government as a cut-and-dried case of espionage.


What? Does anyone REALLY think that al qaeda doesn't think that the NSA is trying to eavesdrop on them?

Gimme a fricken break!

No, the only element of this story that is a suprise to the public is that the NSA was told by the President that they didn't have to bother adhering to FISA, because that three day window to get a warrant is just such a pain. IF he HAD been requesting warrants, then he would have been in full compliance and there would have been no story to report. But the NSA, under his direction, did no - even though the court is set up to handle these requests quickly, efficiently, and with minimal burdern of proof required.

But the right wing pundits like this one try to make it sound like the idea that the NSA could do these intercepts AT ALL was unxpected news.

What a total crock.




Now is this law a bit clearer than most? YEs. And if the justice department chooses to go after the paper, it will surely be an interesting case.


However, until such time as a case comes before the courts - the current legal precendent stands: The papers can print pretty much ANYTHING legally acquired by them if it is within the public interest, and even if illegally obtained by their source.

I would think the law would apply to specific details of how spying took place, not merely saying that spying was going on. Example: You could say that the army has a code to pass messages, but you couldn't say, In the army code A=G B=F etc. (I know codes are more complicated than that) The point is you can say "The Government is spying against Americans" but you can't say "Download the CIA decoding software at www.ournewspaper.com"

The govenment has a necessary interest in protecting methods but has no right to protect illegal activities. The activity can be reported but not the exact method.
That's the key to the whole thing right there. That's why there are laws to protect whistleblowers from retaliation. That's why there's such a thing as an investigative reporter. There are lots of people in government -- and in this thread apparently -- who seem to think that being in government puts one above the law. It does not. "Classified" and "secret" are not magic words that make government officials immune to prosecution. If their actions are illegal, the rights and privileges of their jobs cannot protect them.

If officials are violating the law, they deserve to be exposed. Period.

I'd have to disagree.

Myrth is always the best option available.

But seriously, I don't really think that it's a bad to arrest the people who disseminated classified information. It's generally regarded as something that cannot be done, because it theoretically puts the survival of the US Constitution in jeopardy and the rest. And given that we attempt to treat all crimes of a certain caliber equally, then this is the only thing that is just to do.
You're allowing the government to just classify anything at all and have total immunity for all their actions. Don't you see a problem with that kind of blanket power?

For instance, if the government wants to keep troop movements secret and some reporter broadcasts that information (Geraldo! :mad: ) the broadcaster should be prosecuted.

But if the government is trying to hide illegal actions, violations of civil rights, corruption, bribe-taking, sweetheart deals to favorite corporate supporters, and other crimes, should they be allowed to get away with that, just because they stamp "Classified" on their memos?

How about if they get really corrupt and decide to just plain steal all the tax money or assassinate their political rivals, as happens in other countries? Should any politician anywhere be allowed to claim some kind of "classified information" privilege to hide themselves from the law?

EDIT: My point is that, while this law may protect classified information, illegal activities cannot be classified in order to prevent prosecution. Therefore, merely calling it classified does not make it a legitimate secret. So you can't automatically condemn anyone who reveals classified info. You have to look at what that info is and determine if revealing it was a good or bad thing.

The law is constitutional and the editors of the NY Times knew they were taking a chance when they published the material. The Pentagon Papers decision basically said that the government could not constrain the press from publishing the papers, but that there would be nothing stopping them from prosecuting the leakers. Now, I don't know if whistleblowing statutes protect the NY Times or not--I don't know the statute--but when a paper goes into this sort of thing, they know that they don't exactly have the law on their side and they never will.

But they publish anyway, because they know that a government crackdown will result in a justifiable outcry from the public and from its journalistic competitors, because everyone knows that if the government shuts one down, they can shut them all down. They take a risk when they publish something like this, and they know they do, but they also know that they've got some room to push back, and for all their bluster, so does the administration. No one at the NY Times will go to jail for this, much as Deep Kimchi would seem to desire otherwise, not because they didn't break the law, but because the administration knows that if they go after a paper, they'll never catch another break in any media they don't own.

I wish when people posted statutes they'd put the annotated ones up.

Anyway, looking at the definitions, I'd argue that the 'whoever' in subsection a) only covers the activities of authorized persons - so as to make sense of the definition of unauthorized - and as the NYT and its staff were never authorized, this doesn't properly cover them.