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Michelle Malkin Opposes Freedom of Press

That's putting it lightly. I'm almost surprised at the degree to which the far-right lunatic fringe overreacts to a free press. To them, it's a crime to report on the actions of our government toward Americans.

That should send a clear signal that something is terribly, terribly wrong with this small but influential group of extremists. When national security universally trumps a free press and an informed electorate, we're no longer living in a democracy.

June 23, 2006 at 02:36 PM in Current Affairs, Media, Road to Democracy | Permalink


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Hi Chuck,
Doesn't she have a point though? If Clinton was President and asked the NY Times to keep secret their investigation of terrorist suspects, would you be against that too?

Posted by: steve Garfield at Jun 24, 2006 3:54:23 PM

oh no, we've lost Steve!

Steve there are SO many reasons to be against this - it doesn't matter who is president.
though this administration in particular deserves no slack.

the government has a long, sad history of abusing it's powers in the name of national security, and in the name of investigating terrorist threats (including pre-9/11). the history is that those in power will abuse it to squash dissent, to squash political opponents. democracy suffers.

beyond the history, there is the principle.

of course the government needs secrecy to protect us. but how much?
and, what if it's abusing that trust - don't we have the right to know?
public interest.

the press is supposed to be a government watch dog.
of course the press serves it's own interests and is heavily flawed.
but in a time of unparalleled government secrecy and lies,
we need a vigorous and aggressive press now more than ever.

as to the actual threat posed by revealing this program,
i'm not qualified to say. but i will say that the government
*already* monitors large transactions to some extent.
terrorists must realize that any recordable or traceable action
is likely to be monitored. nobody is surprised to learn of this -
it would be naive to think anything else. the question remains,
how many non-terrorists are being monitored too? how much
privacy and liberty are we willing to surrender in the name of
national security?

we can't even have the debate if we don't know what's happening.

i have spoken.

Posted by: chuck at Jun 24, 2006 5:20:00 PM

Thanks for keeping this issue in the foreground, Chuck. My own thoughts follow regarding the New York Times, and its publication of classified material about the NSA.

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.

Posted by: Matt Ehling at Jun 28, 2006 10:59:12 AM

Forget Clinton, ask yourselves what FDR or Harry Truman would do with the NYT in this situation? Hell, Lincoln would have hanged them!

The fact is, in their zeal to skewer Bush for doing something that the Times itself demanded in an editorial shortly after 9/11, they did material damage to the government's ability to track the funding of terrorists. The freedom of the press is the freedom to criticise, not the freedom to jepoardize our troops in Iraq and Afghanistan and our agents in other countries. If you're going to criticize the republicans over the Valerie Plame affair, then you'd better call for the heads of the NYT editors who pulled this stunt, too.

Posted by: Some Guy at Jul 6, 2006 8:25:08 AM

Some Guy: Color me confused, but how does the revealing of this program cause any harm to our troops? Are you under the impression that the terr'rists didn't know their transactions were being tracked? We announced we were going to do exactly that after 9/11. How stupid do you think they are? It's not wise to underestimate the enemy.

Furthermore, we are under attack. Not from terrorists, but from our own government which would find things sooo much more convenient if they didn't have to contend with "liberties" and "rights." That is any government's natural inclination. But it's not the American Way. We need to keep, cherish and exercise our rights even in the darkest of times. If we give up those rights then what are we fighting for? If we're not free, then this must not be America.

If you feel that you must live in a place where the government has the freedom to do whatever it wants, please move somewhere else. America is for people who cherish personal freedom, not governmental freedom. If you don't feel that personal freedom is important, please move somewhere else.

Posted by: vemrion at Jul 6, 2006 2:19:22 PM

so if the fucktards who want all of us dead, even you liberals who think gay Mari (i can't say it sorry) is ok (and by the way, that is probably one reason they want to kill us all!)knew this was happening and how, (the CIA did not even know how this was happening) then why put it on the front page of the fish wraper? OH, BECAUSE IT WAS NOT KNOWN HOW IT WAS BEING DONE! THIS IS TREASON AND THEY SHOULD BE SHOT IN TIME SQUARE! HOW DARE YOU AND THE OTHER FUCKTARDS JEPRODISE MY SAFTEY! I AM SO PISSED AT YOU PUSSYS I COULD SLAP YOU LIKE THE BITCHES YOU ARE!

Posted by: chris at Jul 7, 2006 4:13:51 PM

Exhibit A: The red-blooded Republican-Amer'cun. Somebody had to vote for Bush right?

Violent, incoherent, and anti-American.

“If it were left to me to decide
whether we should have a government
without a free press or a free press without
a government, I would prefer the latter.”
- Thomas Jefferson

Study up on why we have a free press [PDF], calm down, and come back to the grownups table.

Posted by: chuck at Jul 7, 2006 7:36:18 PM

Why do peole get so touchy with this stuff. I understand the passion, but the hurtfullness that comes from the bashing of groups that disagree with your point of view is so typical in a world where I am right and you are Wrong. What in my opinion of illegal immigration or wire tapping has to make me Violent, Incoherent, and anit-American.

This is a quote fro Sen Schumer: "This was caught in its very early stages. There's no evidence in any way that anything was done, either purchase of explosives, even the sending of money. It was caught by the terrorists talking to one another. So this is one instance where intelligence was on the ball."

I have a question. Would it be better that we didn't moniter traffic and the tunnel was blown up or better that someone was listening?

I would go with the lives are saved half. If they want to listen to me call Iraq, go for it. I have nothing to hide. My freedom is not jeapordized by that, I still get to make the call.

When you throw a surprise party for someone, do you get upset if someone lets the cat out of the bag before. Same thing, different scale.

Posted by: Jeff at Jul 9, 2006 6:51:28 AM

We already have legal ways of monitoring suspected terrorist activity. Let's use the law, not abuse it or circumvent it. It's there to protect us, both from terrorist activity and from being spied upon by our government.

Posted by: chuck at Jul 9, 2006 11:20:34 PM