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