Did The Times Itself Break the Law…
…with the NSA story? Not the leakers, mind you, but the Times? I don’t think there is any doubt that the leakers did, but I’ve taken it for granted that such past events as the publication of the Pentagon Papers established a precedent that protects the paper today. Scott Johnson takes a look in the Weekly Standard, however, and answers the query in the affirmative:
In a Boston Phoenix article, “The Gray Lady in shadow,” civil liberties lawyer Harvey Silverglate counts five Pentagon Papers justices in accord with the basic proposition that, while prior restraint is essentially prohibited, post-publication criminal responsibility is not. Silverglate observes that five of the nine justices (White, Stewart, Blackmun, Burger, and Harlan) would have approved of criminal prosecution of the newspaper defendants in the Pentagon Papers case, even though a majority would not authorize a pre-publication injunction. That observation is clearly correct, but conservative. Justice Marshall’s concurring opinion is also consistent with White’s analysis. It is fair to conclude that the Times is not immune from criminal liability for violation of the federal espionage laws under the Pentagon Papers case.
I am entirely unimpressed with virtually everything the Powerline trio writes on the NSA sacandal matter, because it almost all has a strong whiff of intellectual dishonesty. Johnson writes this:
Times executive editor Bill Keller purports to have satisfied himself that the publication of the story did “not expose any technical intelligence-gathering methods or capabilities that are not already on the public record.” In his December 17 radio address, however, President Bush flatly asserted that publication of the story “damages our national security and puts our citizens at risk.”
The gravamen of the NYT story is that domestic communications with parties abroad has been conducted without warrants; no technical details were revealed that are not already in the public domain. The very idea that AQ only came to supsect that the United States was monitoring its telephone calls and email in December of 2005, because of a NYT article, is too silly to debate.
After a lot of pressure to do so, a few weeks back the Powerline guys finally offered some examples of how this disclosure — again, whose gravamen is about a lack of warrants — hurts national security. I almost spewed my coffee all over my monitor reading that it is because, you see, teh article called attention to FISA and the whole idea of intercepting communications, and the terrorists probably didn’t know much about FISA before that.
Please. FISA has been written about many times before, and in any event, it does not violate national security interests to discuss the contents of the United States Code. Note that Johnson also doesn’t explain in that article how such interests have been harmed, except to say the President says so. Indeed, neither Johnson, nor anyone else, has given any but the most risible examples of what this harm has been or could be.
Comrades,
The problem with any newspaper printing information on classified projects is this: It, in effect, confirms what our enemies may only suspect.
Consider the following statement, which is still an official response from the US Navy regarding a question posed about nuclear weapons: “The United States Navy will neither confirm nor deny the existence of nuclear weapons aboard any aircraft, ship, or station”.
Our enemies may SUSPECT we are monitoring their telephone calls. They may INFER from the results of operations that a compromise of their communications system has occured. But they will not KNOW for certain that this has happened until someone out there actuals says “Yes! We monitor their transmissions”.
Besides which, their exists the probability that knowledge gained by our enemies through such news accounts will embolden them to greater actions, with possibly greater loss of life to our side. Consider also that some portion of the operations being conducted may depend upon humint as an originator or facilitator. Exposure through some reporter’s “scoop” might well cost the humint sourde his/her life and deny us access to the very contact data we need to complete the tasks.
Like the WWII poster says: “Loose Lips Sink Ships”.
Personally, I like Abraham Lincoln’s way of dealing with such copperhead journalism. Jail the editors and reporters, tear down the newspaper offices and destroy their presses. These copperheads seem to forget that they are also Americans, and bear responsibility as does every American for the national security and safety of our constitution and our people.
If the “Ancien’ Regime”, the modern martinets of the MSM won’t shut their mouths, then perhaps we should shut them for them.
Respects,
Tim
Censorship is bad. Tim, your latter comments are vaulting you into the wingnut category.
There was plenty of information out there about the NSA’s Echelon network many, many years before this story was ever published in the paper. I even saw a special on it on The Discovery Channel. If you’re trying to keep something a secret, of course you are going to presume whoever is doing everything they can to monitor you. Finding out for a fact that they are doesn’t change anything.
Well said Mona.