Rights and Responsibilities of a Free Press

[AuntieEmma[$]]

My understanding -- and it's spelled out in Bill Keller's letter -- is that what the administration was really worried about was not that terrorists would be tipped off by publication of the articles, but that banks, particularly European banks, would be embarrassed by being publicly identified as being part of this American program, and they would withdraw. AFAIK, that hasn't happened.

The "helping the terrorists" rhetoric appears to be just drummed up for effect. It's really disgusting.

I think in the end, the Admnistration won't charge anyone at the NYT with a crime. The Administration doesn't like to take on losing causes, and this one would be a losing cause, since the First Amendment is still in effect.

[erik_kosberg]

Wingnut bloggers called it treason, and now a wingnut U.S. Senator has done the same thing.

Fascism has many faces.

[conradd]

AuntieEmma said

Unclaimed Territory - by Glenn Greenwald: The Bush lynch mob against the nation's free press

I haven't heard of Glenn Greenwald before but it's hard to take him seriously when he blows his credibility in the first paragraph. He said:

Glenn Greenwald said:
Any questions about whether the Bush administration intends to imprison unfriendly journalists (defined as "journalists who fail to obey the Bush administration's orders about what to publish") were completely dispelled this weekend.

Maybe I missed something but I've seen no reports that unfriendly journalists have been carted off en masse to Gitmo. Or Leavenworth. Or even a country-club federal prison. But I'm sure that Greenwald will be posting a running list of specific indictments as they occur, since he seems to have special knowledge unsupported by the media reports that the rest of us are relying on. I know I'll be waiting to hear more about this.

As I have noted many times before, one of the most significant dangers our country faces is the all-out war now being waged on our nation's media -- and thereby on the First Amendment's guarantee of a free press -- by the Bush administration and its supporters, who are furious that the media continues to expose controversial government policies and thereby subject them to democratic debate.

This is intellectually dishonest. The story in question involved classified information. The Times had no legal right to publish it. And Bill Keller has no authority to declassify it.

After the unlimited outpouring of venomous attacks on the Times this weekend, I believe these attacks on our free press have become the country's most pressing political issue...

Earth to Glen. Free speech works both ways. If the NYT does something that citizens don't agree with, they have the right to write. It's not an attack, it's a reaction and entirely legal. Unlike the Times who reacted to a leaker of classified information by printing it.

I was also struck by this statement later in his essay:

The clear rationale underlying the arguments of Bush supporters needs to be highlighted. They believe that the Bush administration ought to be allowed to act in complete secrecy, with no oversight of any kind. George Bush is Good and the administration wants nothing other than to stop The Terrorists from killing us. There is no need for oversight over what they are doing because we can trust our political officials to do good on their own. We don't need any courts or any Congress or any media serving as a "watchdog" over the Bush administration. There is no reason to distrust what they do. We should -- and must -- let them act in total secrecy for our own good, for our protection.

This is such a classic example of the straw man fallacy that I'll use it in my classroom this week. I haven't seen any argument that there shouldn't be oversight. And there was in this case. Congress was briefed and the NYT admitted it. Trying to gloss over what actually happened and argue something else is a good try but I'm not buying. I am, however, amused that Greenwald is criticing public debate over the right to debate controversial issues publicly.

[conradd]

AuntieEmma said

I think in the end, the Admnistration won't charge anyone at the NYT with a crime. The Administration doesn't like to take on losing causes, and this one would be a losing cause, since the First Amendment is still in effect.

The First Amendment doesn't protect illegal activity. And if the NYT did reveal classified information (which has already been determined), they aren't protected. There is no federal shield law. Is deliberate disclosure of information that they are perfectly aware is classified, illegal? Is it protected speech? How would this be determined except in a court of law?

[erik_kosberg]

The Times had no legal right to publish it.

On what basis are you making that claim? Exactly what law did the Times supposedly break? Bush and his supporters in Blogistan are saying all kinds of things about the NYT, but I've yet to see any of them offer up a specific law that's been broken.

[conradd]

Does any paper have a legal right to publish classified information?

[AuntieEmma[$]]

conradd said

The First Amendment doesn't protect illegal activity.

It's not illegal for a newspaper to publish classified information.

And if the NYT did reveal classified information (which has already been determined), they aren't protected.

Yes, they are.

There is no federal shield law. Is deliberate disclosure of information that they are perfectly aware is classified, illegal?

Yes, for the leakers who had specifically entered into an agreement with the government not to reveal the information. No, for the press who have not entered into any such agreement.

Is it protected speech?

Yes.

How would this be determined except in a court of law?

It has already been determined by the Supreme Court in the Pentagon Papers case, where the Court held that the Times could continue to publish papers which were, at the time, classified.

... Back then I was general counsel to The New York Times, which had obtained a leaked copy of the classified Pentagon Papers, a top-secret history of the United States government's decision-making process regarding the war in Vietnam. After a careful review of the documents, we began to publish a series of articles about this often unflattering history, which suggested that the government had misled the American people about the war.

The day after our series began, we received a telegram from the U.S. attorney general warning us that our publication of the information violated the Espionage Law. The attorney general also claimed that further publication would cause "irreparable injury to the defense interests of the United States."

The government then took us to court, and convinced a judge to issue a temporary restraining order which prohibited the Times from continuing to publish the series. Following a whirlwind series of further hearings and appeals, we ended up before the Supreme Court two weeks later. The court ruled that our publication of the Pentagon Papers could continue. The court held that any prior restraint on publication "bear[s] a heavy presumption against its constitutional validity," and held that the government had failed to meet its heavy burden of showing a justification for the restraint in New York Times Co. v. United States, 403 U.S. 713 (1971). We immediately resumed our publication of the series, and we eventually won a Pulitzer Prize, the profession's highest honor, for the public service we performed by publishing our reports.

http://usinfo.state.gov/journals/itd...de/goodale.htm

[AuntieEmma[$]]

conradd said

Does any paper have a legal right to publish classified information?

Yes.

[realtraveller]

There can be no disagreement that the government employees who leaked the information to the NYT have broken the law.

The Justice Department should subpoena the NYT. Demand to know who the leakers are. Then Keller and the reporters can cool their heels in jail for awhile deciding whether to name names.

All those supposedly outraged at the naming of one CIA agent should be far more outraged at this. That did no damage to national security. This did.

[erik_kosberg]

That did no damage to national security.

Bullshit.

[conradd]

AuntieEmma said

It's not illegal for a newspaper to publish classified information.

and

It has already been determined by the Supreme Court in the Pentagon Papers case, where the Court held that the Times could continue to publish papers which were, at the time, classified.

I don't think the Pentagon Papers case established a blank check for newspapers everywhere. As was discussed earlier in this thread, at least two justices felt strongly that each case should be considered on its own merits. And Burger, Stewart, Blackmun & White at least suggested that criminal sanctions can be imposed on newspapers.

Going back to the Espionage Act of 1917:

§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.

That seems pretty clear to me. I'm wondering if Keller and the NYT are trying to force a showdown.

[erik_kosberg]

The more things change, the more they stay the same.

The legislation was passed at the urging of President Woodrow Wilson, who feared any widespread dissent in time of war constituted a real threat to an American victory.

Publications which the Wilson Administration determined were guilty of violating the 1917 Espionage Act "were subject to being deprived of mailing privilege, a blow to most periodicals," according to Sidney Kobre's Development of American Journalism book. A section of the Espionage Act allowed the Postmaster General to declare all letters, circulars, newspapers, pamphlet books and other materials that violated the Act to be unmailable.

As a result of the Espionage Act, about 75 newspapers either lost their mailing privileges or were pressured to print nothing more about World War I between June 1917 and May 1918.

Oh, please, please, please, let Bushco invoke the Espionage Act of 1917.

As was discussed earlier in this thread, at least two justices felt strongly that each case should be considered on its own merits.

Yeah, in a concurring opinion. So what?

[erik_kosberg]

"Good Treason and Bad" displays the reasoning in a nutshell.

[rmthunter]

Dan Froomkin on the secrecy of SWIFT

SWIFT has a Web site, at swift.com .

It's a very informative Web site. For instance, this page describes how "SWIFT has a history of cooperating in good faith with authorities such as central banks, treasury departments, law enforcement agencies and appropriate international organisations, such as the Financial Action Task Force (FATF), in their efforts to combat abuse of the financial system for illegal activities."

(And yes, FATF has its own Web site, too.)

An e-mail from White House Briefing reader Tim O'Keefe tipped me off to just how nutty it is to suggest that SWIFT keeps a low profile. Among other things, he explained, "SWIFT also happens to put on the largest financial services trade show in the world every year," he wrote. "Swift also puts out a lovely magazine ."

Nevertheless, the White House is steadfast:

"Q But the existence of this organization is no secret. . . .

"MR. SNOW: Are you kidding? Are you talking about Swift? When did you know about Swift before? . . .

"Q Let me ask a follow up. Are you saying that the financial experts in the terrorist ranks would not know about an organization that works for 7,800 different financial institutions in 200 countries?

"MR. SNOW: I'm saying, yes. I think that a lot of people didn't know about the existence of Swift."

[drmomentum[$]]

Bottom line: something has to stick to the wall in an election season. So you try the shotgun approach.

Drum up flag burning. Drum up the gay marriage bugaboo.

Attack the east-coast-liberal-elite-media-terrorist-pigdogs. NYT makes a much better target than WSJ or other papers because of how it is regarded by the base. And since that's what this particular issue is about, the base, it's right on track.

So the administration asked NYT to stop a story that apparently didn't reveal much in the way of secrets. They knew this would leave the TImes scratching its head and that they would disagree and print it anyhow.

Anything sticking to the wall yet?

-JP

[rmthunter]

Can someone point me to an official source that says the SWIFT program is classified? What part of it is classified? It seems rather odd that a classified entity would not only have a Web site but would sponsor a major trade show every year, as well as publish a magazine, not to mention having its name published on standard wire transfer forms available to anyone making such a transfer.

It also seems odd (but, given the tenor of the times, not that odd) that a newspaper should be prosecuted for repeating information that the president and members of his administration have been talking about for years. Just what is the standard here?

And if it was not classified, what law did the NYT break? Not paying attention to the president? Is that illegal now?

And if it is classified, when was it classified? Was it classified after it became public knowledge, as so much information now is? Are wire transfers now classified? Is the Internet now classified? Does that mean we have to stop talking about it, even though everyone, including terrorists, knows about it? Or does it mean that only those who are able to declassify information at will can talk about it? And are they going to reclassify it when they're done talking?

Anyone?

[rmthunter]

Here's an excellent piece by Michael Tomasky at American Prospect that I think is very relevant to the title of this thread:

American Prospect Online - ViewWeb

I needn’t retail all the ways in which the charge against the Times is phony. That’s been done elsewhere. Keith Olbermann demolished the argument on his June 28 program, showing a series of clips of Bush saying several times after 9-11 in public forums that we were tracking terrorists’ banking activities. The terrorist who didn’t assume this was happening after September 11 is a terrorist with an IQ of roughly 65, and thus more likely to blow himself up than us.

Instead, what’s important here is modern conservatism’s jihad against the very existence of disinterested (not the same as un-interested) arbiters of public discourse and civil society, of which the Times, for all its faults, continues to be among the most important.

[AuntieEmma[$]]

This whole thing seems to me like an attempt to reopen some Nixon-era controversies and to try to have them come out differently this time.

This is from something I posted above (that I think may have gotten overlooked in the shuffle), written by the man who had been the chief lawyer for the New York Times in the Pentagon Papers case. The Pentagon Papers case was decided in 1971. And here we are thirty-five years later, in 2006, reviving and rehashing the same issues. It sure seems like deja vu all over again:

Lawyer for the NYT in the historic Pentagon Papers case said

Back then I was general counsel to The New York Times, which had obtained a leaked copy of the classified Pentagon Papers, a top-secret history of the United States government's decision-making process regarding the war in Vietnam. After a careful review of the documents, we began to publish a series of articles about this often unflattering history, which suggested that the government had misled the American people about the war.

The day after our series began, we received a telegram from the U.S. attorney general warning us that our publication of the information violated the Espionage Law. The attorney general also claimed that further publication would cause "irreparable injury to the defense interests of the United States." ...

The court ruled that our publication of the Pentagon Papers could continue.... we eventually won a Pulitzer Prize, the profession's highest honor, for the public service we performed by publishing our reports.

U.S. Department of State Bureau of International Information Programs -- Issues of Democracy, February 1997 --
Goodale on First Amendment and Press Freedom

Also from the same article is this, which is also relevant to the title of the thread:

The founders of the United States enacted the First Amendment to distinguish their new government from that of England, which had long censored the press and prosecuted persons who dared to criticize the British Crown. As Supreme Court Justice Potter Stewart explained in a 1974 speech, the "primary purpose" of the First Amendment was "to create a fourth institution outside the government as an additional check on the three official branches" (the executive branch, the legislature and the judiciary).

It makes sense that in an era where there is a movement to consolidate as much power as possible in the executive, that all the other branches -- including the unofficial branch of the press -- will be under attack.

P.S. Speaking of the attempt to consolidate power in the executive, there's a good article (though long -- I haven't finished it yet myself) in the current NY-er about David Addington, Cheney's Chief of Staff and apparently the main generator of legal theories meant to support shifting power to the President.

Editing to add: Here's the link: THE HIDDEN POWER: The legal mind behind the White House’s war on terror.

[rmthunter]

Granted, and I don't think your comments and quotes got lost in the discussion, but I reiterate my first question: Was the SWIFT program actually classified? I've seen no such reference, only that "revealing" it affected "national security." If the program was classified, exactly what portion was classified (the Web site? The trade fair?), and what are the ramifications of having it discussed in public forums by the president and members of his administration?

[AuntieEmma[$]]

Was the SWIFT program actually classified?

I was just assuming it was. Obviously the existence of SWIFT, including its web site and trade fair, etc., is no secret -- but what I had assumed was classified was the U.S.'s survellance of the program. (In the same way that the existence of the phone company AT&T is no secret, but what was a secret was the government's surveillance of AT&T's records.)

But let me see if I can find anything more on this ... Yeah, I did. In the original NY Times article, they DO say the program is classified:

Nearly 20 current and former government officials and industry executives discussed aspects of the SWIFT operation with The New York Times on condition of anonymity because the program is classified.

(Linking to a San Diego paper's reprint of the article, because the original is now behind the NYT paywall): Bank data secretly viewed for terror ties | The San Diego Union-Tribune

BTW, while I was looking for that article, I stumbled across an op-ed by Richard Clarke, which says that he thinks the surveillance was no secret from the terrorists: http://www.nytimes.com/2006/06/30/op...=1&oref=slogin

But there seems to be no doubt that it was classified.

[AuntieEmma[$]]

BTW, I think there's a legitimate debate to be had about whether the newspapers should have published this story. I'm not sure myself where I stand on that. But the lynch-mob mentality of the people going after the Times (the cries of "Treason!" and "Criminals!") is frightening.

[drmomentum[$]]

conradd said

The program is legal and there are built in safeguards. Members of Congress have been briefed.

Feinstein says that the intelligence committee wasn't briefed until after the administration learned that the NYT was going forward with the story.

So, it took the fourth estate to prompt that particular check/balance from one of the other branches.

Maybe the argument here is that there are members of al Qaeda in congress?

-JP

[Joubert[$]]

AuntieEmma said

BTW, I think there's a legitimate debate to be had about whether the newspapers should have published this story. I'm not sure myself where I stand on that. But the lynch-mob mentality of the people going after the Times (the cries of "Treason!" and "Criminals!") is frightening.

I agree with you that the NYT has been overly villified in this situation. I have read accounts of their actions as well as The Wall Street Journal's complete op-ed piece distancing themselves from the whole mess.

But I don't agree that there is "legitimate debate to be had about whether the newspapers should have published the story."

The media's responsibility is to report the news and let the people decide. Many organizations create internal rules to govern their actions (e.g., we will not identify minors charged with a crime or rape victims), but here is a question:

If this program were truly "classified" (and with this administration's record, I want to see dated paperwork that is subjected to analysis before believing that) then why does anyone think (to quote Emma quoting the Times) that Nearly 20 current and former government officials and industry executives discussed aspects of the SWIFT operation with The New York Times

Why would those current officials discuss the program? Ah heck, just point me in the direction of the thread we have where even a conservative court believes the administration acts with impunity regarding international law, and I'll argue the issue there.

[AuntieEmma[$]]

drmomentum said

Feinstein says that the intelligence committee wasn't briefed until after the administration learned that the NYT was going forward with the story.

And, as I recall, something very similar happened with the previous NYT expose, the one about the warrentless wiretaps -- in that case, just like with this one, the administration claimed that Congress had been briefed all along -- but for years, only a select little group had been briefed, and the full intelligence committee was briefed only AFTER the administration found out that the Times was about to publish a story.

[rmthunter]

The whole area of classified information, particularly over the past five or six years, is really murky. I've seen accounts by researchers and college professors about information that they have had in their files for years suddenly turning up "Top Secret." The Pentagon and other agencies are going back and reclassifying thousands of documents that are public knowledge -- I remember seeing a story about something that had been on the Internet being suddenly "classified," and you can't hardly get more public than that. The head of the National Archives has been quite critical of it.

In this case, the idea of classifying a program that makes use of a public institution for the purposes for which it exists is more than a little bizarre.

Reality TV seems to be taking over the government.

[eris esoteric]

OK, so basically all the NYT has to do is tell Bush that Rove leaked the information about the surveillance to them. This will cause Bush to backtrack and say that the surveillance was never classified in the first place, and everyone will be happy.

As long as they don't have any money or actual power.

[drmomentum[$]]

LOL, Eris.

[erik_kosberg]

Bottom line redux: the USA does not have an Official Secrets Act.

[erik_kosberg]

On a related note, "It was just a Travel-section puff-piece" (and it gets worse)

[drmomentum[$]]

Darkly lurking beneath the rustic, playful tone of the NYT Travel article is a homicidal plot on the part of the reporters and editors of the Times to provide a roadmap to their Al Qaeda allies so that they find Cheney and Rumsfeld (and maybe even Mrs. Rumsfeld) and murder them.

Rustic... playful.. GODLESS AND TREASONOUS!

[erik_kosberg]

"More than any other White House in history, Bush’s has tried to starve, mock, weaken, bypass, devalue, intimidate, and deceive the press, using tactics far more toxic than any prose devised in the name of Spiro Agnew."

Well worth a read.

[erik_kosberg]

"Over the next four months, we will see blistering negative attacks on Democrats of a ferocity and corrosiveness that will make Swift Boats look like the Love Boat."

Thank you, Turdblossom!

[wivabef]

Rove said that?

[drmomentum[$]]

Of course, the swift boat was the love boat for that guy that John Kerry saved.

Just sayin.

-JP

[drmomentum[$]]

Elyzabeth:

CNN.com - Rove: Reporters slam politicians to save selves - Jul 29, 2006

No, those aren't Rove's words. JMM's prediction. He's suggesting that Rove is starting with the fourth estate.

[wivabef]

Oh. I saw the quotes and thought...

well, never mind!

[conradd]

Okay, never mind. The Times has decided that publishing wasn't such a good idea:

My July 2 column strongly supported The Times’s decision to publish its June 23 article on a once-secret banking-data surveillance program. After pondering for several months, I have decided I was off base. There were reasons to publish the controversial article, but they were slightly outweighed by two factors to which I gave too little emphasis. While it’s a close call now, as it was then, I don’t think the article should have been published.

Those two factors are really what bring me to this corrective commentary: the apparent legality of the program in the United States, and the absence of any evidence that anyone’s private data had actually been misused. I had mentioned both as being part of “the most substantial argument against running the story,” but that reference was relegated to the bottom of my column.

Yep. Just like this quasi-apology. After a few months of reflection, he concludes that the program is legal and has not resulted in the abuse of private citizen abuse:

I haven’t found any evidence in the intervening months that the surveillance program was illegal under United States laws. Although data-protection authorities in Europe have complained that the formerly secret program violated their rules on privacy, there have been no Times reports of legal action being taken. Data-protection rules are often stricter in Europe than in America, and have been a frequent source of friction.

Also, there still haven’t been any abuses of private data linked to the program, which apparently has continued to function. That, plus the legality issue, has left me wondering what harm actually was avoided when The Times and two other newspapers disclosed the program. The lack of appropriate oversight — to catch any abuses in the absence of media attention — was a key reason I originally supported publication. I think, however, that I gave it too much weight.

And the reason he defended it in the first place is because:

In addition, I became embarrassed by the how-secret-is-it issue, although that isn’t a cause of my altered conclusion. My original support for the article rested heavily on the fact that so many people already knew about the program that serious terrorists also must have been aware of it. But critical, and clever, readers were quick to point to a contradiction: the Times article and headline had both emphasized that a “secret” program was being exposed. (If one sentence down in the article had acknowledged that a number of people were probably aware of the program, both the newsroom and I would have been better able to address that wave of criticism.)

What kept me from seeing these matters more clearly earlier in what admittedly was a close call? I fear I allowed the vicious criticism of The Times by the Bush administration to trigger my instinctive affinity for the underdog and enduring faith in a free press — two traits that I warned readers about in my first column.

.

Vicious criticism? Please. Blaming Bush for the lack of critical inquiry by the editorial staff is such a weak defense that I can't believe he pitched it. The NYT is hardly an underdog - the editors have quite effectively wrapped themselves in the First Amendment while giving the Bush Administration a huge FU - and to portray themselves in that role is ludicrous.