Want to Stop Leaks? Don't Do Bad Things

The problems with a movie like that:

Donald Rumsfeld on special effects? I think this means that we'll either stare at a blank screen (in the interest of national security, of course) for the duration of the film or we'll see the highest-budget CG scene ever produced of people dancing in the streets of Iraq greeting us a liberators. Then again, he might just run The 10 Commandments with some new audio dubbing.

And really... Tony Snow as narrator? The dialogue would go something like this:
Condi: Mr. President! What should we serve our guests for dinner?
(Narrator) But Mr. President could neither confirm or deny the existence of these "guests" or that the White House would be serving dinner.
Bush: I'm the decider!

;-)

Email users Warned over Spying BBC and Links .

Between Echelon in the UK, and Carnivore in the US, global email is pretty well insecure without some sort of encryption involved since chances are good most email travels through at least one system in either area. Encrypting email is fairly simple for the most part, and regular users don't have to worry TOO much about how strong the encryption is, just enough that they'd have to want to bother decrypting it to read it, which for the most part wouldn't happen wouldn't a reason.

Leaks are another matter. look at it this way. How did we know Iraq had WMD's. It was leaked.

Who leaked it ? GW leaked it.

You mean GW told President Clinton about WMD and to tell everyone about it?

President Clinton also said " The Berlin wall has fallen. What will replace it. America ensures her security not by building walls, but by building bridges."

Now this is a good logical view on this whole spying paranoia! (finally) Don't worry about what's done, but what's done with the info. Thanks!

In their current mandate yes I think so. I think a better use of such resources would be a court to look at private data in secret and decide if the government can use such data, not if they can collect such data. Only after the court says yes it's in the public interest to pursue and use such data can it be brought up in further invasive investigations (search warrants) etc.

So a case might be that phone records would lead the FBI to think some person was planning an attack, maybe they called known terrorists and then called chemical supply stores. They forward that data pattern to a court, they then grant permission to use said data to obtain a search or arrest warrant. Does that sound reasonable? With the FISA as should be according to some the government can't look for the pattern at all, has to ask a court to look for a pattern but how do they know to ask?

They dont ask. They take advantage of a legal loop hole in US /Australian law. These documents can then be made public and viewed. There has never been to my knowledge a successful intercept of any terrorist group using these networks. Even ordinary business people know how to avoid Echelon. When it comes to Your privacy, that is a US citizen, large samples of overseas communications traffic are handed over for analyses. 3 Days before 9\11 Pine Gap . picked up a significant amount of traffic suggesting an attack on New York. What are you supposed to do with this data, Evacuate NY ? Print it in the paper and look like a fool if it doesn't happen ? These things must never be placed in the hands of any government ever.

No, no, no, no, no, no, no, no, no!

This is what constitutes an illegal search and seizure. You cannot search through the data WITHOUT probable cause. And it is the courts that determine if probable cause exists. Simple checks and balances! You cannot just tear up the constitution because it is convenient.

This is why police cannot just raid the homes of suspected criminals. Would being able to do so help catch more criminals? Sure, but that's not the point. What is there to prevent the government from continually harassing anyone it wants to by continuously "searching" for incriminating evidence?

There is no excuse for this behavior. Quite simply, the FISA courts allowed for the kinds of searches that the administration "claims" they were doing. There is a grace period in which they can gather data WHILE filing for a warrant in the FISA court. And it is all kept secret. The administration has yet to make a case as to why it needed to circumvent the FISA laws. So far, the only case I've heard is they did it "because they could." I'm sorry, but that just doesn't cut it. Since they've not convinced *anyone* that it was absolutely necessary to circumvent FISA to gather the information they seeked, the only conclusion one can logically draw is that they needed to circumvent it because the courts would not have found probable cause and thus would have prevented them from gathering the data.

Instead, they continue to try to convince the American people that they might die if they don't let them do whatever they want, regardless of the constitution and the law of the nation. FUD. Not what America is built on. Try Cuba or China if that's what you're after...

You cannot just tear up the constitution because it is convenient.

Thank you.
Our privacy is not just an inconvenience that must be gotten around, somehow.
There have always been people in the world with the inclination to "do bad things". The United States has managed to survive this long without operating on the assumption that every single person living here might be one of them. We have no evidence that warrantless wiretaps have been effective in preventing terrorist attacks. This is simply unnecessary, illogical, and generally antithetical to the nature of our society as it was originally envisaged. I completely agree with theannalog that the solution to this "problem" is for the government to stop doing things that will get them in trouble when they're caught. This is, theoretically, a government for and of the people. The government, very simply, ought not be doing things of which the majority of the people disapprove.

I put the line between searches that affected the person on whom the data was collected, search their home or body, and searches that don't affect the person, see them on street corner, check out phone records.

Phones aren't a significantly more private form of communication than shouting out across a yard. I don't think it should be privileged information. Anything I post here can also be looked up by whoever wants to, I will not claim down the road anybody requires a warrant to read it.

What people approve and disapprove of fluctuates with the mood de jour and even more importantly is retroactive. People will and have gotten mad about things that weren't done in the past though they didn't like them at the time, such as around 9/11. Also there are many things like taxes everybody always say they don't like and yet they always ask for things that require them.

As technology continues to improve more and more people will have the ability to gather their own meta data on you and will not be government officials. At what point will the common criminal have all the information they need while the police can't help you? Laws should be designed to work into the future. A law that restricts how data is used and not how data is collected will achieve the same level of real privacy without the loopholes and without hamstringing law enforcement.

As technology continues to improve more and more people will have the ability to gather their own meta data on you and will not be government officials. At what point will the common criminal have all the information they need while the police can't help you?

I am not arguing that the police should not have the ability to find data on people. I just think they should have to acquire a warrant to do so. This is one of the things that defines criminal information gathering: they do it outside the letter of the law. Court standards of "reasonable suspicion" are very reasonable, indeed. Particularly FISA, which allows great latitude in what constitutes enough evidence to obtain a warrant, and a great deal of flexibility as to timelines and application of those warrants. If the government cannot produce any evidence to support their assertion that they need my phone records, wiretapping capacity, etc., then no matter what they are planning to do with it, I cannot see why they should have it. In the end, what is being debated is not whether or not the government should have the ability to obtain private data on U.S. Citizens, it is whether or not they should have to prove there is a reason.

Strong arguments, but: if the President spied on his political opponents (like Nixon), then classified the information, should the press be able to expose him? If not, what would limit the president's power?

Do we have any proof he used any program to spy on his political opponents? If not, we're just making a comparison between Nixon and Bush that isn't routed in any empirical data whatsoever. It's just an altruistic comparison that since they both have access to the tools, they both must be doing it. Considering no evidence at all supports this, it's unfair to Bush to label him as someone who spies on his opponents.

As in any debate, if we accuse a leader of something, we must have evidence to back up our claims. Comparing him to Nixon by only linking the fact they both have the power to classify is not enough.

The power to classify and declassify needs checks too.

To an extent, it does, but that power cannot be too much, because classification is traditionally executive branch function anyway. Look at the existence of the Independent Counsel. The Independent Counsel cannot be controlled by either Congress or the President. The Independent Counsel has no checks to their power; but the existence of the Independent Counsel has been upheld by the Supreme Court and deemed Constitutional.

The power to actually classify something belongs in the branch of government meant to enforce the law of the land, not in the hands of the people who write the laws themselves since it's entirely irrelevant to the execution of their sworn duties.

what would limit the president's power?

That is the core of the problem. A president's power in war times become near if not fully limitless. By declaring a fictional "war on terror", he do what he wants, when he wants, for as long as he wants, and hide behind the fallacy that "we are at war".

There will always be secrets. The government tries to keep them, and the press tries to expose them. This is a system of checks and balances that has worked pretty well in the past, and I believe will continue working well into the future.

But that's not a legal check and balance. It's like the Michigan Militia saying they should be able to own a nuke because the government is bound to do wrong. They don't have a civil or legal right to the bomb, and it's illegal to own, but they do it anyway.

A check and balance of power refers to the legal system of checks and balances, which are entirely legitimate. Illegal checks and balances do nothing more than usurp the system and law of the land. It shows a disrespect for the system in general when done.

I'm talking about a slippery slope here. If we don't let the press use information it gets from inside the government, what happens when something really bad happens in the government? Will we ignore the next Deep Throat because to expose a criminal president would be criminal in itself? Will we create a state in which the president is essentially above the law?

There already exists a system for determining if a President is acting above the law. The Legislative Branch of the government can work within the system to determine what is right or wrong, while maintaining the necessary level of classification until necessary.

People that disagree with the President and think he's doing illegal things are essentially usurping this system and replacing it with their own. They don't care about the law as much as they claim, because they break the law the show others breaking the law.

That is the core of the problem. A president's power in war times become near if not fully limitless. By declaring a fictional "war on terror", he do what he wants, when he wants, for as long as he wants, and hide behind the fallacy that "we are at war".

Expanded powers of the President have existed ever since the founding of the country. Federalist 70 by James Madison, referring to how tyranny doesn't need one person:

"The Decemvirs of Rome, whose name denotes their number, 3 were more to be dreaded in their usurpation than any ONE of them would have been," he said. "A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults."

And, referring to expanded powers in war time, Federalist 47:

"[T]he direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority."

The idea of expanded powers during a time of war is rooted in our own system of government.

And it's not a foregone conclusion that publishing leaked information is, in fact, always illegal. We already have laws to criminalize certain revelations and not others. Check out the source linked above, and note that it also advocates not treating the leak of Valerie Plame's name as a criminal act.

In the case of the NSA leak, it is indeed specifically illegal, prohibited by federal law.

18 USC 798:

(a) Whoever knowingly and willfully communicates, furnishes,
transmits, or otherwise makes available to an unauthorized person,
or publishes, or uses in any manner prejudicial to the safety or
interest of the United States or for the benefit of any foreign
government to the detriment of the United States any classified
information - (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or (3) concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the process of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes - Shall be fined under this title or imprisoned not more than ten
years, or both.

The disclosure of the intelligence collection program by the NSA is inherently different than the NYT case of 1971. That case dealt with a report by MacNamera more than anything else. The case we are dealing with in the NSA leak is about intelligence gathering itself. This law has existed long before Bush ever took office.

The problem with the statement (from the source I cited, which is a "government watchdog") is over-analysis of the written law.

If they want to clarify that the press has the legal authority to publish the classified information, they should have written that specific statute in; which they didn't.

Bush's classification isn't abnormal either, when taken into account that he is a war-time President. Classification of information naturally rises when said information regards a war. He may have classified a ton of information, but that doesn't necessarily mean it's over-classification. Since we're at war (despite semantics played by some), it's kind of natural for a lot to be classified.

Regarding Presidential leaks, President Carter/SoD Brown? leaked/declassified the existence of the B2 stealth bomber, likely to counter their cancellation of the B1 bomber.

James said:

We are a nation of laws. Violating said laws by operating outside the established system shows contempt for societal standards.

and

until there is a definitive ruling in the judicial system on the matter, it behooves us to treat it as a legal practice.

The FISA is part of this "nation of laws" and there has been no judicial finding that it is unconstitutional, or that it is suspended in time of "war," or that it does not apply to the President. So, doesn't it behoove the Congress to launch an impeachment investigation which will determine whether the President broke the law? Or do we now go into double-think mode where the law as written can be ignored by the President but we should accept his contra-legal practice of violating the law as legal because the courts or the Congress have not definitively ruled on it? By this reasoning are there any laws that the President must follow before getting a definitive ruling on them?

I think it depends on your reading of this:

..is in any manner prejudicial to the safety or interest of the United States...

My United States is one where the government doesn't wiretap me without a warrant. Publishing this information was helpful to the interest of the United States in my opinion, regardless of what a bunch of over-enthusiastic spies think is the interest of the United States.

Evano,

What separates this situation and the FISA one is that it's perfectly reasonable for President Bush to conclude that the U.S.A. P.A.T.R.I.O.T. Act overrides previous law, as well as conforming the laws to the Constitution. In the case of the reporters receiving classified data then publishing it, they are acting in direct violation of the law, and there is (yet) no contravening law. If people want journalists protected to leak the data to the public, it's just as easy to create a law that protects them in those specific situations.

The Patriot Act was a collection of modifications and enhancements to existing laws. Among its provisions were modifications to hundreds of laws, including the FISA. The FISA was not repealed, nor was the President exempted from following its provisions. The President signed the Patriot Act into law on October 26, 2001 and all indications are that the NSA wiretapping and the domestic surveillance programs began after that. Whatever modifications the Patriot Act made to the FISA are the modifications which the President violated.

The Espionage Act and other restrictions on the disclosure of classified information have never been used to prosecute newspapers or reporters for reprinting classified information leaked to them. The laws describe penalties and restrictions on the people with official access to classified information, not to unauthorized persons like me, you and a New York Times reporter (other than Judith Miller.) The use of the word "publish" seems to refer to the usage "to make public," not necessarily to actions undertaken by the Constitutionally protected press.

Thank you, evano. I think you hit the nail on the head with respect to the Espionage Act. It was meant to punish those who had a legal, contractual obligation not to reveal the information, not the reporters to whom they leaded it.

Brian,

I think you've got it right when you talk about the way things are versus the way things ought to be. During times of war the way things ought to be take a back seat to survival.

It all boils down to whether or not we believe we are at war or not. Since, if you believe so, this is an unconventional war it makes it very difficult to know how far is too far with Presidential war powers.

But as in any war, there is no definite timeline for anything. The goal is to end the influence, effectiveness, and aggregate acceptance of terrorist tactics to effect change.

During World War 2, the goal wasn't to kill Hitler, or kill the Emperor. It was an elaborate strategy to end the effectiveness of their ideologies and end the spread of their ideologies, through systematic military campaigns. No one could have given a good timeline then, as they can't give a timeline now. The goal of war is never really simple, and the war on terror is no exception.

I disagree about WWII. The goal there was to topple the Axis regimes. The Allies did it; the war was over.

However, the war didn't officially end until 1947 when the Paris Peace Treaty was signed. Additionally, the condition of the governments of Germany, Austria and Japan weren't anywhere near sovereign at that time. The foreign and domestic powers of the U.S. government took until then to officially be reduced to a reconstruction phase. Heck, the Treaty on the Final Settlement with Respect to Germany was signed n 1990, 45 years after the end of major hostilities.

Here we have toppled two regimes, but the war isn't over yet.

That's because the war wasn't centered around the two regimes, but moreso any body that supports terrorism as a means of achieving success. That is unquestionably tougher than the goals of World War 2 in terms of length of time, given the widespread usage of terrorism and the existence of many more sovereign entities than what existed prior to World War 2. I don't think people expected the War on Terror to end with the expulsion of just two regimes.

Except, we've been told over and over that this isn't "just any war" by those who support it.

It's a new kind of war, apparently.

I think we need to judge the effectiveness of this war and it seems to me that plenty of learned and qualified people are judging that the answer is: Not that effective.

(I could be proven wrong, but I'll believe in the long term chances of a successful democracy in Iraq when I see it.)

Also, was war ever officially declared? I don't really remember the answer to that question, so it's not rhetorical. Do we grant powers for a "war" on terror... and as such should we also grant powers for a "war" on drugs or do we hold those powers back for an actual "war" when one is declared?

No one could have given a good timeline then, as they can't give a timeline now. The goal of war is never really simple, and the war on terror is no exception.

Well, with WWII, I think we were fighting a far more concrete "enemy" and as such it was far easier to understand the progress. We understood the conflict and as such any powers that we granted our President were trusted because I think America felt that the world knew what it was up against. I think American's feel like they've been put on permanent need to know basis and that Bush doesn't feel as though we "need to know" anything at all. If George Bush is upset that people don't trust him with the powers that he's granted himself (I don't necessarily agree, but I'm no expert) he only has to look at his own policies to see why. He's fostered this scrutiny and skepticism through a pretty piss-poor track record throughout his administration. I think America (in general, party or ideology aside) is tired of being "told" what we should think and what we should put up with and is ready for some sort of accountability. The buck most certainly has not stopped with the President for several years now.

In response to Anna's (tongue in cheek) response to my comment: I do believe that it's possible to have an argument in certain areas in which one is not an expert. For example, one could argue science and have all of the facts at hand through a variety of (predominantly) undisputed sources so long as they present those sources to back up their arguments. I guess I was just thinking that the so-called "experts" in -this- field seem to be pretty wishy-washy about the legality and exactly what he (Bush) can and can't do. As such, it seems like any discussion about it here is better left to: This is what "seems" right and what "seems" wrong and not: It is or isn't legal because, quite frankly, I don't think anyone here knows.

Again, I reiterate my support of the NYT for their efforts in exposing the questionable actions of a President that I don't doubt will some day be seen as criminal.

Bang on the Money Theannalog this

The espionage statutes need refining, now more than ever.

Is exactly how they spy on US citizens. With this out dated cold war law. The argument you are presenting, However, assumes that this is going to happen. You need to understand that it has been going on for years. You need to focus on international issues here as your domestic laws do not cover the privacy rights of US citizens from outside Spying for the US government.

Brian Ford@

We understood the conflict and as such any powers that we granted our President were trusted because I think America felt that the world knew what it was up against.

If I remember my history, America did not understand the conflict. America (or the the majority, including the press) was very much against this war and public opinion forced FDR to remain on the sidelines and watch Nazi/Facism gain strength for two years. This was obviously an enemy that needed to be defeated for our own security, but "America" didn't have the vision to see this. Also, Churchill alerted England to the dangers of Hitler long before they invaded Poland. He was ignored too. The reason for this lack of "vision" is the tendencies of people to avoid conflict and not see the bigger picture.

I know this is a little off topic, but I felt it needed said to maintain perspective.

"Germany was contained after WW1, Hitler didn't have the resources to mass weapons of destruction. Germany's economy was in a depression. There was no reason to attack and take him out of power. Leave him alone, we have bigger problems at home to take care of. " This is what Churchill was up against before Hitler invaded Poland. By then, it was too late to effect change.

"There's an easy way to avoid getting pilloried in the press. Don't try to do things on the sly that lots of Americans oppose."

Just thought I would back this up for you, yes this is very true and extremely relevant. After WWI public opinion was completely isolationist- we didn't join the League of Nations, we didn't endorse the Treaty of Versailles. America's First and the Nye Committee both convinced America that we went to War for the profit of a select few. While FDR desperately wanted to step in, all he could do was take baby steps. Had he went to war in the beginning WWII could have been a non-entity.

If I remember my history, America did not understand the conflict.

Sorry, by America, I meant the public, and I meant that after we got involved, we knew who our enemy was, we knew what we were fighting against, and because of that, America (it's people and it's government) seemed to be on the same page and worked toward the goal of defeating that enemy. Industries and wives and all sorts of people not directly involved in the war banded together to get it done.

I don't think that "Hitler" and "Terrorism" are comparable enemies and I don't think that Bush wants us to understand our enemy this time. He wants us to have this vague idea of a bogeyman that will kill us in our sleep if we don't allow him to do whatever he wants to do in order to squash an unsquashable force.

And then he wonders why people begin to ask questions about his tactics. The truth will catch up to him eventually.

I think you've got it right when you talk about the way things are versus the way things ought to be. During times of war the way things ought to be take a back seat to survival.

I fail to see how we're in any kind of 'struggle for survival'. The death toll for 9/11 plus the US military deaths in Iraq total around 6,000. The death toll last year from car crashes was around 38,000. This is not a war. Wake me up when this 'war' is as dangerous as driving my car to work everyday. Here is exactly how much freedom I'm willing to give up to prevent dying in a car crash - I'll wear a seat belt. That's it. Based on the numbers above, I'm willing to give up 1/6 of that amount of freedom to prevent death in a terrorist attack - i.e. basically none, and only for as long as al-Qaeda is an imminent danger.

I want to echo Calvin's idea of having James and Anna in a Tangle in the near future on this issue. On the question of whether it is legal for the NYT to publish the information that they have about the CIA's operations in Iran, it's a question of prior restraint, just as in the Pentagon Papers case in the 1970s. The reporters at the NYT were not the ones who signed agreements to keep the information confidential. Making it criminal for them to publish the information would be a form of prior restraint, something that runs counter to the 1st amendment and the concept of a free press. In this particular instance, I also think that we need to ask ourselves how stupid our enemies are. Do we honestly think that they don't already suspect/know we've got intelligence officers on the ground there? Come on, honestly.

Here is the link to the original New Yorker Hersh article that was picked up by all the wire services at the time.

The Administration has been conducting secret reconnaissance missions inside Iran at least since last summer. Much of the focus is on the accumulation of intelligence and targeting information on Iranian nuclear, chemical, and missile sites, both declared and suspected. The goal is to identify and isolate three dozen, and perhaps more, such targets that could be destroyed by precision strikes and short-term commando raids. "The civilians in the Pentagon want to go into Iran and destroy as much of the military infrastructure as possible," the government consultant with close ties to the Pentagon told me.

Some of the missions involve extraordinary coöperation. For example, the former high-level intelligence official told me that an American commando task force has been set up in South Asia and is now working closely with a group of Pakistani scientists and technicians who had dealt with Iranian counterparts. (In 2003, the I.A.E.A. disclosed that Iran had been secretly receiving nuclear technology from Pakistan for more than a decade, and had withheld that information from inspectors.) The American task force, aided by the information from Pakistan, has been penetrating eastern Iran from Afghanistan in a hunt for underground installations. The task-force members, or their locally recruited agents, secreted remote detection devices—known as sniffers—capable of sampling the atmosphere for radioactive emissions and other evidence of nuclear-enrichment programs.

I rest my case, Hersh and many like him that leak and or print classified info are doing so illegally and placing service men and women in danger.

Brooks Travis

On the question of whether it is legal for the NYT to publish the information that they have about the CIA's operations in Iran, it's a question of prior restraint, just as in the Pentagon Papers case in the 1970s. The reporters at the NYT were not the ones who signed agreements to keep the information confidential. Making it criminal for them to publish the information would be a form of prior restraint, something that runs counter to the 1st amendment and the concept of a free press.

Actually no. It's a question whether the NYT broke the law. Specifically section 798 of the 1917 Espionage Act. Here is an example of a successful prosecution:

United States of America v. Samuel Loring Morison. From 1974 to 1984, Morison, a grandson of the eminent historian Samuel Eliot Morison, had been employed as a part-time civilian analyst at the Naval Intelligence Support Center in Maryland. With the permission of his superiors, he also worked part-time as an editor of Jane's Fighting Ships, the annual reference work that is the standard in its field. In 1984, dissatisfaction with his government position led Morison to pursue full-time employment with Jane's.

In the course of his job-seeking, Morison had passed along three classified photos, filched from a colleague's desk, which showed a Soviet nuclear-powered aircraft carrier under construction. They had been taken by the KH-11 satellite system, whose electro-optical digital-imaging capabilities were the first of their kind and a guarded military secret. The photographs, which eventually appeared in Jane's Defence Weekly, another publication in the Jane's family, were traced back to Morison. Charged with violations of the Espionage Act, he was tried, convicted, and sentenced to a two-year prison term.

The article also notes the case in the courts now involving the American Israel Public Affairs Committee (AIPAC), which lobbies Congress and the executive branch on matters related to Israel. Lawrence Franklin has admitted to his violations of the Espionage Act and sentenced to twelve-and-a-half years in prison.

Here is the relvent text from section 798 of the 1917 Espionage Act that was added in 1950:

§798. Disclosure of Classified Information.

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or (3) concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

"Or publishes," sorry all you leak publishers if found guily in a court of law you may be going to jail. BTW Brooks:

Do we honestly think that they don't already suspect/know we've got intelligence officers on the ground there? Come on, honestly.

So what you're saying is because an enemy "believes" something to be true it's prefectly OK to not only confirm it as fact, but not go after the law breaks that leak to stiory in the first place?

Do I read the correctly? I hope not.

"Publishes" in this instance means "makes known." It has nothing to do with the act of publishing a newspaper or a press -- an activity protected by the First Amendment which cannot be overridden by a mere law. Notice in the cases you present, Morison was charged and convicted, but Jane's was not. Franklin was charged, but the people who published or used his material were not. The person who provided the information to Hersh, who was bound by non-disclosure and classified materials laws can be charged; Hersh will not be.

evano

"Publishes" in this instance means "makes known." It has nothing to do with the act of publishing a newspaper or a press --

While that is true there is no evidence the Gov. tried with the exception of one case outlined here. And that case was pulled because the Gov. decided it would have to disclose classified material during the trial.

So it would appear there is no precedent set. So lets get the NYT in court and set it!

I remember when the last Dem was in office and the American people practically came unglued about him getting action in the Oval Office. Too bad that Clinton didn't do that AFTER 9/11, then he could have just said "Sorry, National Security matter. Case Closed." and been done.

Where's the outrage? I think everyone's just so beaten down now that we'll let anything slide.

I disagree. I think it should be very hard to act against public opinion. Possible, but hard. The press helps make it tough.

Hohoho i just found the blockquote feature. No more quotation marks!

[back on topic]

The public's opinion changes on a whim. If the President acted always as the people wanted, we wouldn't need a president, we would just need a lot of referendums. Imagine if the President acted everything the public yelled. Beliefs of the man (ahem or woman) wouldn't matter.

The system of checks and balances is great. If gives people another method of indirect access to the President through Congress, the House more specifically. You vote Congress in ever two years, it not only serves as a midterm report for the president, but lets the people control who votes on bill's going to the President.

With the President to responsible to the people, he isn't a "strongman," he is a simply a pawn.

Advance said:

Prior restraint / censorship is completely legal if national security is in danger

Um... no.

The precedent case in prior restraint is Near v. Minnesota, 283 U.S. 697 (1931). Tucked in among the issues of the primacy of the ban against prior restraint in the reasoning behind the First Amendment guarantee of Freedom of the press is the observation:

The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.

The key word here is "might." There have been no Supreme Court decisions dealing with the use of prior restraint during wartime. If one came up, it would be decided by balancing the actual harm of revealing the information against the purpose of the Constitutional press protections. As Chief Justice Hughes said in the Near decision:

Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.

The NSA data collection program may be a criminal act at the highest levels of government and as such, investigation into the program is among the most serious duties of a free press. If this case were to make it to the Federal courts, the potential damage to the war effort would have to be weighed carefully against the right of the people to know of the activities and wrongdoings of their government. It is not certain, even with this politically divided court, which way the balance would tip. Stating that prior restraint is "completely legal" is completely wrong.