Thursday, May 25, 2006

Truth and Consequences

As my doppelgänger here at Heigh-ho, Portia is given great latitude to bust my chops and she makes the most of it. In a fiery comment appearing in the post below, Portia takes me to task for apparently wanting to "gag" the press by entertaining the thought that the Times might well be prosecuted for its publication of state secrets damaging to national security. As always, she makes a great argument. And, as always, I keep coming back for more. So rather than just dump my reply in the comments section, I figured I'd put it up here to really tick her off.
Here goes!

Dear Portia,

Although I appreciate your ardor in preserving the freedom of the press, I will disagree with you that the Pentagon Papers case stands for the proposition that the press cannot be prosecuted for disseminating information harmful to the security of the nation. In that case, the administration sought to enjoin the Times from publishing the classified materials after the newspaper refused repeated requests to cease publication from the adminsitration. The Second Circuit COA granted the injunction. The Washington Post began publishing them, and the administration again asked the paper to cease doing so, and after it was refused sought another injunction. This time the D.C. Circuit C.O.A. refused, and the Supreme Court took the case on the fastest track ever seen.

New York Times Co. v. United States was far from a great victory for a "free press" immune from the law. The High Court 6-3 decision produced nine separate opinions that run the constitutional gamut, but its holding was simple: The U.S. failed to carry its burden to show that the danger to national security caused by the reporting of past incidents was sufficient to warrant the prior restraint of speech. That's a pretty far cry from what we've got here.
As Justice White (one of the two "swing votes" in this case) wrote:

I concur in today's judgments, but only because of the concededly extraordinary protection against prior restraints [p731] enjoyed by the press under our constitutional system. I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations. [n1] Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless agree that the United States has not satisfied the very heavy burden that it must meet to warrant an injunction against publication in these cases, at least in the absence of express and appropriately limited congressional authorization for prior restraints in circumstances such as these. [p732]

When the Espionage Act was under consideration in [p734] 1917, Congress eliminated from the bill a provision that would have given the President broad powers in time of war to proscribe, under threat of criminal penalty, the publication of various categories of information related to the national defense. [n3] Congress at that time was unwilling to clothe the President with such far-reaching powers to monitor the press, and those opposed to this part of the legislation assumed that a necessary concomitant of such power was the power to "filter out the news to the people through some man." 55 Cong.Rec. 2008 (remarks of Sen. Ashurst). However, these same members of Congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed. Senator Ashurst, for example, was quite sure that the editor of such a newspaper

should be punished if he did publish information as to the movements of the fleet, the troops, the aircraft, the location of powder factories, the location of defense works, and all that sort of thing.
Id. at 2009. [n4] [p735]
The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 [n5] makes it a crime to publish certain photographs or drawings of military installations. Section 798, [n6] also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems [p736] or communication intelligence activities of the United States, as well as any information obtained from communication intelligence operations. [n7] If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States, and must face the consequences if they [p737] publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

There is no issue of prior restraint present in the instant matter. The information on the admistration's warrantless surveilance program is already out in the world. What damage, if any, the publication of information has done to our national security I can only guess at.

However, there is still a lingering question as to whether the Times broke the law in publishing that material. The Times may hold themselves out as being above the law, but that has yet to be determined by any court. Perhaps it will be, soon. That's how we do things around here.

Your pal,


P.S. I haven't been able to locate any pictures of naked women worthy of Heigh-ho yet, but I'll continue to search.


portia said...

Dear spd:

Geez, don't you have a 4th Circuit argument or something to go today?

I don't have much time to respond right now but I would like to correct the perception you left with me and your readers that the Pentagon Papers were some out-of date report sitting on a shelf collecting dust when the battle to publish them was underway. Hardly, far from the truth.

One of the Government's primary arguments was that Papers included many secret and clasified communications between military officials, and publishing them would give our enemies, e.g., Russia and North Vietnam a window into the American military's thinking, and that to allow publication would jeorpardoze diplomatic relations with other countries by insinuating that Ameirca couldn't keep a secet.

It's important to keep that in mind when you weigh the courts decision(s) in deciding whether the Pentagon papers could be published, or the Press restrained. The fact that the courts chose not to restain the Press when it had the opportunity to shutter it tells me more about the courts desire to preserve freedom of the press than the fact that "prior restraint" is not at issue in the current firestorm.

spd writes:

However, there is still a lingering question as to whether the Times broke the law in publishing that material. The Times may hold themselves out above the law, but that has yet to be determined by any court. Perhaps it will be, soon. That's how we do things around here

Agreed, and if I replace a few words, the paragraph now asks an equally important question that has yet to be answered:

However, there is still a lingering question as to whether the Administration broke the law in conducting warrantless eavesdropping. The President may hold [him]self out above the law, but that has yet to be determined by any court. Perhaps it will be, soon. That's how we do things around here.



Your buddy,

spd rdr said...

Ah, the Pee Wee defense! Very good, Portia. We've come full circle.

spd rdr said...

BTW, our oral argument is tomorrow.

portia said...

Back to the issue of prior retrainst. I wonder if the WH thought about seeking an injunction againt the NYT when the NYT told the WH (a year before it actually published the story) that it was thinking about running the story?

Moreover, if National Security was truly at risk, did not the WH have obligation to mitigate possible damages when they first learned that NY possessed this classified information, and seeks court's intervention?

Why didn't they, and should they have

Any thoughts?

Now, I'm going to lunch.

portia said...

Ah,the Pee Wee defense .

Anything to mention Pee Wee again, huh:) Two seperate questions, spd, each of which needs to be answered. IMO, the one I asked is equally as significant--if not more so-- than yours.

spd rdr said...

I would think that the administration considered the ruling of the Supreme Court in the Pentagon Papers case to set an extrodinarily high bar for the prior restraint of the Times' speach. Now that the material has been published, however, the question becomes whether the Times broke the law when it spoke. Although both matters concern First Amendment rights, the two have very different legal postures.

As to your "second question," please note that not once did I defend the administration's actions as to the warrantless wiretaps. I don't deny that it raises some thorny issues, even though I believe the program was intended to do exactly what I expect of a government at war. But it's still arguing apples and oranges. Even if the NSA program is finally found to have been an illegal exercise of executive power, which I doubt, that would still does not absolve the Times of publishing classified information, Pee Wee notwithstanding.

Anonymous said...

As an un-informed civilian (not a lawyer, and didn't stay at Holiday Inn Express last night), I would just comment that WE DON'T REALLY KNOW WHAT THE NSA HAS DONE. All we really know is that the appropriate committees in Congress have been informed and briefed on it, and their hasn't been too much squawking from those who ACTUALLY know something. There HAS been squawking from those that are guessing (wrongly, I think).

There have been leaks and rumors, and a few nights ago on NPR, they interviewed Sen. Pat Robers (Chairman of Senate Intelligence Committe) about Gen. Hayden's nomination hearings to DCIA, and he was deliberately UN-SPECIFIC about what the NSA has done/is doing.

It is not:
1) data - mining phone records (I think that is deliberate mis-information)
2) indescriminate eavesdropping on domestic to domestic phone/cell calls
3) Reading people's e-mails
4) recording millions of phone calls and analyzing them for "key words". etc. using some supercomputer.

We REALLY don't know what they're (NSA) doing, and the NY TIMES may be guiltiest of all of spreading dis-information, which MIGHT have been deliberately leaked by NSA to mislead our potential adversaries as to what we really ARE doing.

-Don Brouhaha

spd rdr said...

Good points, Don. I have no need to know what the NSA is up to. But I guess that's just my Navy training. Ask not, 'cause you don't need to know.

portia said...

My reading of NYT v. US--and the White, J. quote you included--suggest that upon proper showing the press could be enjoined if the Gov't (or one looking to enjoin) could show that the information intended to be publsihed would put our national security at risk. Just saying so however, doesn't cut it.

I've lost track of which questions you're answering but it looks like we agree that whether the NSA program is legal or whether Times can publish a story are "two separate questions" or as you say "apples and oranges" (even if we can't agree how to phrase it:)

Anyway, a big Portia KISS to Don who in 9 words summed it up best:

And why don't we know?? Because there was NOTHING in the NYT article that divulged classified information other than the fact that the government was conducting wiretaps without seeking court approval. Bingo, that's the classified information. Maybe I missed some nugget in that story, and if so please tell me what you learned from reading that article that you didn't know other than the Governemnt's decision to by-pass the FISA courts.

Now back to spd's point, it doesn't matter if the leak tipped off the bad guys or not--classified info is classified info whether it be about Valerie Plame or FISA--and that may be enough to send the NYT to jail for leaking classified information but that's a far cry from suggesting that the information it leaked has put our National Security at risk, or that if somebody blows up Radio City it's the NYT's fault.

The biggest risk involved in the NSA story is the risk to Bush's presidency. IMO, of course.

portia said...

the NY TIMES may be guiltiest of all of spreading dis-information, which MIGHT have been deliberately leaked by NSA to mislead our potential adversaries as to what we really ARE doing
-Don Brouhaha

Oh, Don, that's brilliant:) I argued that possibility with Sy Hersch's New Yorker article re: war with Iran, wondering if he had been used by WH to add some pressure to the dialogue but I hadn't thought of the "disinformation" angle with NSA. Verrrrrry interesting.

Tell me again which side you "dress" on?

Anonymous said...


Thanks for the affection,:)

But by my limited (non-lawyerly understanding), also consider that FISA does not cover international calls originating overseas, or calls from domestic locations to overseas, or international calls that happen to be routed through the US (long distance digital switching centers), with no US receiver, which has been asserted by every administration since Jimmy Carter was Pres.
(when FISA was originated). FISA only applies to domestic to domestic calls; roving wiretaps, etc.

Constitutional protections are extremely small and limited with regards to international "messages" (extraterritorial) and their content.

-Don Brouhaha, dumber than he looks

spd rdr said...

Whoa, Portia! Me saying that the Times might well be prosecuted for publishing classified information harmful to national security, in no way implies that the government will actually be able to get a conviction on that charge. Unless I am terribly mistaken, the Espionage Act does not operate under the doctrine of strict liability. The feds would still have to prove beyond a reasonable doubt that the Times willfully published the information either with the intent to harm national interests, or with such wanton recklessness as to constitute the equivalent mens rea for a conviction under a criminal statute. Pretty tough assignment if you ask me. The defense would most certainly demand that the U.S. turn over every document relating to its success at intelligence under the program and posit such (incredibly sensitive and perhaps life-threatening information) against the agregate of phone class intercepted. Plainly, if I was the Times' lawyer I would argue that the government's actions were the hammer against the fly. And certainly, the release of such information would probably cause more damage to national security than anything thus out in the public domain.

Don't kid yourself, kids, this is well understood by both sides: The government postures that it might bring charges (knowing that the cost, in terms of proof and credibility is off the charts), and the Times acts all hissy about the First Amendment (recognizing that, while it may have well crossed the line, the overall costs to the other side to prosecute the case all but ensure that the U.S. won't follow through).

The position I offered on this is theorectical, but I'm saavy enough politically to recognize that when you got a lot to lose, you bluster. Both sides are fighting in the court of public opinion because the battle in court is WAY expensive...and I'm not talking dollars.

spd rdr said...

Interesting, I spelled "theoretical" theorectical.
Does that mean I talking out of my ass?

portia said...

Does that mean I talking out my ass?
Probably, but it wouldn't be the first time:)

Whoa, spd! My flippant use of the phrase "that may be enough to send the NYT's to jail" was intended more as a metaphor for wrong doing than sanctions and orange jumpsuits. We agree about the unlikeliness of a lawsuit here. Heck, the DOJ had to shut down its own investigation of the NSA because it didn't have proper clearance to investigate, how do you think Pinch Sulzberger's pricey lawyers are going to fare?

You're right Don. After Church Committee had determined that NSA had been um, shall we say, overly enthusiastic in its um, shall we say, eagerness to listen to phone calls of US citizens during Nixon years, NSA was banned from monitoring any calls that involved US soil. That changed after 9/11 when Bush et al thought if would be "helpful" for the NSA to re-enter the domestic eavesdropping market.

I guess Bush figured enough time had passed, or maybe enough people wouldn't remember, to give the NSA another try.

All I know is I'm getting old when I live through the same scandal twice:)

Louder, spd. I can't hear you:)

Anonymous said...

"That changed after 9/11 when Bush et al thought if would be "helpful" for the NSA to re-enter the domestic eavesdropping market."- Portia

Again, we Really DON'T KNOW what the NSA is doing.

My guess:
NSA is able to set up limiting 'scanning' capabilities of telephone transmissions (at switching nodes) in a limited number of area codes/country codes - areas. Like Pakistan, Afganistan, Iraq, Turkey, Saudi Arabia,etc.; you get the picture. At any given time, they can "scan" for the usage of certain "key" numbers in use (traffic analysis), and may be able to tap in and listen to specific calls (kind of like finding a needle in a haystack the size of Mt Everest).

What the Civil Liberties hounds are worried about is the 'ability' to do this domestically (which is highly probable), and the only thing "stopping" the NSA (besides the illegality of this, without FISA warrants and oversight), is the legal oversight of the NSA legal counsel office and subsequent reporting to the Senate/House oversight committee.
So I don't think unwarranted eavesdropping has occurred domestically to any degree (is once an impeachable offence?), but since the capability to do this with international switching taking place in the US and perhaps elsewhere (anywhere there is a node of international phone routing, figure that one out), suspicions have been raised.

'Course, there is that pesky little item about people in Al Qaeda, Hezbollah, etc., that seem bent on killing people at random here, there and everywhere.
And while there might be some " Constitutional peril" in the minds of those who see the Bush Administration as some cabal of gangsters, there is also the peril of major terrorist attacks either abroad, or say, in the USA (didn't they do that once in 2001?) that would bring down Holy Hell on Herr Bush if the administration hadn't used all means possible to thwart it.
So choose your perils to worry about. Federal government listening in on your calls (maybe yes, maybe no; do you have an Arabic surname?), or the peril that some sociopathic Islamist group is able to enter the US and KILL hundreds, maybe thousands, without the knowledge of our government and their ability to stop them. That happened once upon a time, didn't it?

-Don Brouhaha, still on the line

spd rdr said...

The beauty oh Heigh-ho is that what we don't make up in numbers, we double up in smarts.

portia said...

Well said, spd.

Again, we Really DON'T KNOW what the NSA is doing.

Don, re: domestic surveillance, didn't Bush, Gonzales and most recently Hayden tell us as much since NYT's story broke?

spd rdr said...

Easy, girl. You'll have your spot on the soapbox. I'm bringing the tomatoes.