A Question for the Malkins
If you're so concerned about national security, why do you support publishing inflammatory Muslim cartoons but oppose publishing a government program analyzing financial records? Publishing those cartoons created an immediate national security problem for Denmark and other countries, but you wrapped yourself in the freedom of the press:
The point that needs to be hammered again and again is that the newspaper did not publish the cartoon to deliberately offend Muslims or to make an anti-Islamist statement, but to inform. Which is what newspapers, may I remind them, are supposed to do.
Newsapers are supposed to inform? Finally, we can agree.
posted by Chuck Olsen @ 3:19 AM |
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1 Comments:
Here's a thoughtful analysis left as a comment on my personal blog. The author is filmmaker Matt Ehling:
In this discussion, it seems to me that there are two parallel sets of considerations at work - moral considerations, and legal considerations. I’ll address both in turn.
A. First, the moral considerations. Actions and decisions involving classification inherently involve making moral and ethical judgments. Deciding to classify a piece of information can accomplish a moral good if it prevents dissemination of operational data to an enemy, and thereby saves lives. However, it should also be noted that leaking classified information can serve a moral purpose as well, if the leak reveals official wrongdoing that would not otherwise be exposed. Both actions can, of course, serve less savory ends ... witness the government bureaucrat who covers up illegal activity, or the insider who leaks state secrets to satisfy a narrow personal agenda. The essential dilemma one faces, then, is discerning which course of action best serves the national interest in a given instance. For a case study, let’s explore the New York Times’ publication of leaked information about NSA wiretapping.
Journalists are constantly making judgment calls about what they choose to publish, or not publish ... broadcast or not broadcast. What serves the interests of the story at a given time? What satisfies the public’s right to know? And what information should be withheld, if publication would be detrimental to the public good? There is certainly defense information so sensitive that no legitimate national interest would be served by its release. Real-time troop maneuvers, or nuclear weapons secrets are two examples that leap readily to mind. Both of these kinds of disclosures would result in substantive damage to the security of the United States. However, in the case of Eric Lichtblau and his Times series, it is difficult to demonstrate such damage. First and foremost, it should be noted that Lichtblau’s reporting did not reveal significant operational details of the NSA program. In the stories he has run, I’m not aware of any specifics that could be reasonably construed to impede the effectiveness of the NSA surveillance program. For instance, there has been no publication of the identities of current or former NSA targets. Had Lichtblau actually printed such identities, that act would have constituted a breach of national security. However, no such list has graced the pages of the New York Times.
It should also be noted that Lichtblau’s articles concentrated less on the operational details of the program, and more on the legal justification behind the program itself - specifically its warrantless nature. The President’s broad claim of executive authority is the real news item here. Such a claim is worthy of public debate, since it vests the President with potentially sweeping power. But how, absent this leak, would such a debate have been fostered? Select Congresspeople were briefed on the program, but none spoke of it (or their misgivings) publicly, until well after the NYT articles were published.
Let’s consider Lichtblau’s motives for a moment ... was Lichtblau motivated by concern for the body politic, or by a desire to publicize his book, which dealt with similar material? Did Lichtblau perhaps have a political motivation for publishing the articles, as Powerline Blog and other commentators have intimated? I don’t have enough information to make an informed judgment about what went on in Lichtblau’s head, but let’s momentarily assume that the primary motivation of the NYT was to give the President a political “black eye.” This might be a plausible scenario ... for comparison, when Bill Clinton’s DOJ made similar claims regarding inherent authority to conduct warrantless physical searches, the NYT made much less of a stir (a disparity that rankles both my Libertarianism, and my civil libertarianism.) However, even if we postulate that the Times’ NSA disclosures were tainted by a political motivation, the underlying facts that they exposed are still relevant, and still worthy of public debate. If Lichtblau had reported bad facts in order to forward a partisan agenda, then this analysis would be much different ... but the fact are not faulty in this case. We know that the Times' reporting is accurate, based on statements made by Attorney General Gonzales, former NSA director Michael Hayden, and even President Bush. All of these individuals went on record to defend the warrantless nature of the NSA surveillance program, in the wake of its exposure by the Times.
In the final analysis of the moral and ethical aspects of this matter, it seems that the Times has struck the correct balance - publishing information that the public needs to know, but avoiding details that may compromise national security. For its part, the government might be able to claim a moral justification for its desire to keep certain operational details of the program secret, but not for its attempt to circumvent Congress (by end-running FISA), or to avoid discussion of a novel and controversial legal rationale that should be publicly debated.
B. Now for the legal issues. Representative Peter King and other Republican lawmakers have urged the prosecution of NYT reporters under the espionage provisions of the U.S. code - sections 793 and/or 798. While on first blush, the language of these provisions seems broad enough to encompass Lichtblau’s activities, I would raise the following points:
1. There could indeed be a successful prosecution brought under these provisions - but the prosecution would be of the government official who leaked the NSA material to the Times. There is certainly precedent for such action. For instance, in the 1980s, the Fourth Circuit Court of Appeals upheld the prosecution of defense contractor Samuel Morrision, who gave three classified photos of a Russian sub to Jane’s Defense Weekly. In its opinion, the court noted that a leak would still be a crime under the Espionage Act, even if it was motivated by “the most laudable motives, or any motive at all.”
2. While this might be the case, prosecuting the Times or its reporters for the publication of its NSA series rests on much shakier legal footing. Under the provisions mentioned above, prosecutors would have to show that Lichtblau’s actions were “prejudicial to the safety and interests of the United States,” or that Lichtblau, as the recipient of defense information, had "reason to believe that the information is to be used to the injury of the United States." If Lichtblau did not publish significant operational details of the program, how much damage would U.S. interests have sustained? And thus, how strong could the prosecution’s case really be? While many pro-administration bloggers have alleged grievous damage to U.S. interests because of the actions of the Times, I would submit that their legal judgment about this matter is impaired by their political agenda. The publication of the information in Lichtblau's articles does not meet the threshold necessary for successful prosecution. Even Bill O'Reilly has noted that prosecuting the Times would be prone to failure, given the weakness of any potential case brought under these statutes.
Ultimately, the question of whether to prosecute an individual rests with the prosecuting authority. Bearing the above points in mind, should prosecutors throw down the gauntlet in a case where a journalist published materials that revealed the existence of a classified program, but did not reveal significant operational details of that same program? Or more to the point - would they even try? It's certainly possible. The Bush administration has initiated other legal actions based on weak facts and overly-broad statutory or Constitutional interpretations - the Jose Padilla "enemy combatant" case is a prime example.
Only time will tell whether the administration will decide to cross the Rubicon of prosecution. However, it is assured that both administration strategists and pro-administration bloggers will keep this issue front and center during the upcoming mid-term elections. What is also assured, is that criminal prosecution of a major American newspaper - especially on weak facts such as these - would send a chill through the entire industry, even if the government did not prevail in court. What should dismay Americans of all political stripes - especially that endangered species of small-government conservatives - is how casually the allies of the Bush administration contemplate state actions that could have a profoundly negative impact on a free press.
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