Wednesday, May 24, 2006

Calling the Kettle Black

The New York Times is the newspaper that brought both Jayson Blair and Judy Miller into the public eye in recent times. Therefore it comes as no suprise that the Times doesn't mind playing the "victim" card whenever it has to defend its actions. But I've never actually found the paper to be stupid. Liberal? Yes. Pretentious? Yes. Stupid. No. That's is, at least until today.

In an editorial this morning entitled "A Sudden Taste for the Law," the Times editorial staff weakly attempts to deflect the heat eminating from the Justice Department regarding the paper's recent revelation of classified information.

It's hard to say which was more bizarre about Attorney General Alberto Gonzales's threat to prosecute The Times for revealing President Bush's domestic spying program [sic]: his claim that a century-old espionage law could be used to muzzle the press or his assertion that the administration cares about enforcing laws the way Congress intended.
In order to answer the Times' question as to "which was more bizarre," we'll need to examine each prong of this question indivdually. Prong One: "his claim that a century-old espionage law could be used to muzzle the press." (Translation: "We're not saying we didn't do anything wrong, we're saying that you can't touch us even if we did -nyah, nyah, nyah.")

But a quick look at The Times own story reveals that Gozalales claimed nothing of the sort.

Asked whether he was open to the possibility that The New York Times should be prosecuted for its disclosures in December concerning a National Security Agency surveillance program, Mr. Gonzales said his department was trying to determine the appropriate course of action in that particular case." "I'm not going to talk about it specifically," he said. "We have an obligation to enforce the law and to prosecute those who engage in criminal activity."
Does that sound like Gonzales was issuing a "threat to prosecute the Times," as the paper claims? Reads to me like a polite refusal to discuss the matter further vis a vis the Times or any other paper. If the Times broke the law, then the law will be enforced against the Times. Pretty straight forward, and hardly a "threat." But what law might the Time have broken? Here again is the editorial's version:

Mr. Gonzales seemed to be talking about a law that dates to World War I and bans, in some circumstances, the unauthorized possession and publication of information related to national defense. It has long been understood that this overly broad and little used law applies to government officials who swear to protect such secrets, and not to journalists.
Oh, I get it. If the law is older than I am and not enforced very often, then it isn't really a law. And even if it was a law, it doesn't apply to me, because that's the way its been "long understood." Although the Times apparently cannot bring itself to name the law that they might have broken either in its story or its editorial, that staunchly conservative broadsheet, The Washington Post, confirms the law has the word "espionage" in the title: "He was referring to the 1917 Espionage Act, which made it a crime for an unauthorized person to receive national defense information and transmit it to others." Uh oh. That doesn't sound good, Grey Lady. You received classified information, and you transmitted it to others. What do you have to say for yourself?

Those laws are the basis of a pending case against two lobbyists, but they have never been used to prosecute journalists.
Yeah, and Cardinal O'Connor has never been prosecuted for bigamy, either. But that doesn't mean that that law, as little used as it might be, wouldn't apply to him. And by the way "lobbyists" are not "government officials" so it would appear the application of the law is a bit broader than you would have us believe. What else you got?

Some legal scholars say that even if the plain language of the laws could be read to reach journalists, the laws were never intended to apply to the press. In any event, these scholars say, prosecuting reporters under the laws might violate the First Amendment.
Yeah, but even the First amendment permits "time, place and manner" restrictions to be placed on non-political speech. You're not claiming that revealing state secrets is "political speech," are you? And what did the Attorney General say about this? WAPO?

Yesterday, Gonzales said, "I understand very much the role that the press plays in our society, the protection under the First Amendment we want to promote and respect . . . but it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity."
Sounds reasonable enough to me. Of course, a jury might think otherwise. But that's how we do things around here. In any event, the Attorney General's remarks were certainly not "bizarre" by any known definition of that word.

Normally, the inquiry should stop here, because the Attorney General's alleged "threats" to "prosecute the Times" and thus "muzzle the press" appear to be false. Thus "bizarre" never comes into the picture, much less "more bizarre." But in the interest of justice, let's move on to Prong Two of the Times' editorial: "his assertion that the administration cares about enforcing laws the way Congress intended."

Well? Even if that statement was true (and that is a f**king BIG "IF") so what? Here's how the Times segues from Prong One to Prong Two:

But in any case, Mr. Gonzales and Mr. Bush have not shown the slightest interest in upholding constitutional principles or following legislative guidelines that they do not find ideologically or politically expedient.
Ohhhhhhhhhh, I get it now! Because (in the Times' view) the administration doesn't care about enforcing the law as Congress intended, then the law should not be enforced against the Times. But what does the administration's attitude about enforcing laws the way Congress intended"have to do with whether the Times could be prosecuted for publishing state secrets under a validly enacted statute? Answer: zero.

This is a classic application of ad hominem tu quoque, or the "you too " fallacy. Pioneered by famed sophist Pee Wee Herman ("I know you are but what am I?"), the fallacy exisits where one defends himself by arguing that the other party does it too. Once criticized by the kettle, the pot calls the kettle black, and makes the kettle defend itself, when it is really the pot that is the object of the scrutiny.

The Times' defense is so plainly pathetic that I'm now thinking that the paper suspects that it might just have really done it this time, and that the ongoing legal expense is going to finally tick off the investors, and which raises a whole host of interesting questiions, none of which you'll ever encounter here.

In any event, if you are the Attorney General, this particular business has all the earmarks of a criminal case worth pursuing. If the government has no case, well then, by God, go home. If the government does have a plausible case against the Times for a violation of the Espionage Act, then let's get it on.

But if you are the Times....well... we all know what happened to Pee Wee, don't we?


Anonymous said...

So, is it possible that the New York Times employs cilantro-eating monkeys, and that could explain the fact that there is no consistant logic in their arguments?
Might not legal machinations of this type of prosecution also reveal more than the government wishes to reveal about just what the NSA is up to, which quite frankly, very few people really know?? Or would the prosecution be confined to just what was published and a revelation about where the information came from?

And does Valerie Plame like cilantro? We already know her husband is a baboon (!).

-Don Brouhaha

spd rdr said...

Questions, questions, Don. Why are you asking such questions? You've all but admitted that you were unable to answer certain questions put to you by your teacher, Mrs. Greely, in the fourth grade. Why should we believe you now? Why then should Heigh-ho be made to answer questions posed by you regarding whatever when you can't even answer those question yourself? Eh? Why are you even asking about that which you don't know the answers? It's bizarre. Totally.

Oh, you're an arrogant one all right, Don. But we've dug into your past and have found thousands of inconsistancies in your life without even asingle correction published in a large metropolitan newspaper. And don't you dare threaten Heigh-ho with the law, Mister. Either we are immune because we say so, or you suck. Either way, the truth shall set the people free.
And we publish the truth.

Pile On® said...

I thought by now we would be getting more pictures of naked women, but what do we get? Peewee Herman?

The people have spoken, and this is not what they said.

portia said...

Well, who do you think Gonzales was talking about?

From Sunday's interview with the AG and Stephanoupoulus

George: Do you believe journalists can be prosecuted for publishing classified information?

Alberto: There are some statutes on the books which, if you read the language carefully, would seem to indicate that that is a possibility. That's a policy judgement by the Congress in passing that kind of legislation. We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected

(Boy, don't go too far out on a limb there Albert:"if you read carefully...would seem to indicate...that there is a possibilty" I'm convinced...not.)

He then then follows with: If the government's probe into the NSA leaks turns up criminal activty, prosecutors have an obligation to enforce the law.

I think the fact that he mentioned the NSA leak, and the NYT is responsible for breaking the NSA story, is reason enough for the NYT to think maybe he was kinda talking about it. Maybe

Anyway, before any of you go off half-cocked and start reminding me of the thousand of inconsistencies in my life that I haven't corrected including a couple from today, I think it's instructive to look at the history of the Espionage Act of 1917, and the debate that centered around its provisions.

There's a very interesting discussion on the Univ. Of Chicago Law School blog that does just that.

Turns out the original bill actually included a provision that would have made it unlawful in time of war for the press to publish any information that the president declared to be of such character that it is or might be useful to the enemy.

in time of war, while men are giving up their sons and while people are giving up their money, the press should be willing to give up its right to publish what the president “thinks would be hurtful to the United States and helpful to the enemy.”

Representative Andrew J. Volstead of Minnesota asked pointedly how the nation would feel if American troops were “sent to the bottom of the sea as a result of information” published by the press because Congress had failed to enact the provision

Reread that paragraph again and tell me what year it was written!!!

Anyway, a very heated debate ensued re: whether to include press or not, even Woodrow Wilson piped in claiming that it was “absolutely necessary to the public safety.”

But in the end members of Congress voted to NOT include the press provision in the Act, and it was defeated by a vote of 184 to 144, with 36 Democrats joining the Republican opposition. Interesting, huh?

So maybe bizarre isn't such a strange word after all spd…unless of course, you are referring to Mr. Herman.

spd rdr said...

"In time of war, while men are giving up their sons and while people are giving up their money, the press should be willing to give up its right to publish what the president “thinks would be hurtful to the United States and helpful to the enemy.”

What's news here, Portia? That the Congress failed to act on this provision in 1917? Or that in 2006 the press has become the single best source of illicit information for those that would destroy us? And by the way, the next time it won't be just a merchant ship torpedoed in the North Atlantic. It'll be New York...again.

No. No f**king way. No. And I don't give a flying f**k at a rolling doughnut what the Times thinks "its mission" is today, because they will immediately change their tune to suit their readership when the next installment of terror takes out Radio City...and sixty blocks in all directions thereof. They're capitalists, after all.

Please move, Portia. The Times is your own worst enemy.

portia said...

failed to act?? Or succeeded in not allowing the government to dictate the flow of information that is disclosed?

Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions. Jefferson

What a national security was breached by telling the public that the government was eavesdropping illegally? As I mentioned on the "Through the Looking Glass" post last week, Bush "shared" far more about our technological eavesdropping advances in monitoring our enemies and the degree to which we eavesdrop on them then we learned when NYT broke story in December.

There's little doubt that leaks have become pervasive in the way "business" is conducted in Washington. We need to give the DOJ all the tools it needs to identify and prosecute individuals who deliberatlely divulge classified intelligence whether it results in a leak (by the Press) or a plant (by the Administration), which hopefully will act as a deterrent for people thinking about disclosing classified information.

Gagging the press is not the answer. Te press cannot serve as a check against the Executive branch if the only information it publishes is information which the President wants it to publish. We already went down this path with the Pentagon Papers when the courts refused to restrain the press under the Espionage Act, and Judge Gurfein wrote:

The security of the Nation, is not at the ramparts alone. Security also lies in the value of our free institutions

No my friend, I won't move because of the NY Times "mission." I'll move when it's allowed to be the propaganda arm of the government, and when it exists only to pass on the information which the government wants it to disclose ala Pravda.

Anonymous said...

"The shepherd drives the wolf from the sheep's for which the sheep thanks the shepherd as his liberator, while the wolf denounces him for the same act as the destroyer of liberty. Plainly, the sheep and the wolf are not agreed upon a definition of liberty." - A. Lincoln

Plainly, we must decide what is the greater threat to our way of life and Constitutional form of governmnent:

1) The government has the right to keep secrets on behalf of the people to protect them from a foe which wears no uniform, flies no flag, and lives among us.


2) The people have the right to know what the government is up to, so as not to forfeit their own Consitutional protections to "unreasonable search and seizure".

Regardless of the Sedition Act of 1917, apparently a few employees of the NSA, CIA, and other intelligence organs of the US Government have compromised their oaths of secrecy in divulging certain things to the "press". If they are guilty of this crime, adn can be procescuted in a court, are not those that knowingly received such information also criminally negligent as accessories?

"The Constitution is not a suicide pact" -Justice Thomas Jackson.

- Don Brouhaha (less Peewee Herman, more naked women)

camojack said...

I'm rubber, you're glue...
(You know the rest)