A correction that makes this story just a little more predictable: Earlier I wrote that among those who had begged the Times not to run the terrorist financier-monitoring story was Rep. John Murtha, an outspoken critic of the war in Iraq (and almost everything else he can think of).
Turns out it appears he actually told the Times to run it. It’s possible, as Bill says in the link, that the Times editor has misrepresented the conversation he had with Murtha to cover his ass, but I doubt it. Knowing that actually makes this story a little less surprising. I can’t imagine why Bush thought it would help him.
Now comes the big question: Should the people who reported or approved this story be prosecuted?
My initial inclination upon reading the details of this story and what followed after was “yes”. I have since been convinced otherwise.
Patterico (a Los Angeles County prosecutor) asks several difficult questions about who gets to decide when publishers of leaked information get punished, and then says:
As I have read about and discussed this issue over the past few days, I have become convinced that there is indeed a law on the books, duly passed by Congress, which criminalizes the publication of articles recently printed in the New York Times and Los Angeles Times.
It is not a treason statute, or even the Espionage Act, but rather a specific statute called the Comint statute. It governs the unauthorized publication, to the detriment of the United States, of classified information concerning the communication intelligence activities of the United States. I discussed that statute, and why I think it has been violated, in this post.
As to the First Amendment issue, I provided links in this lengthy post stating that the consensus of experts was that the statute probably would pass constitutional muster — unless, perhaps, the articles could fairly be said to be revealing of governmental wrongdoing.
I don’t think they are.
And I think that a prosecutor could easily exercise his discretion to prosecute. The potential damage of these articles is great. There is a significant governmental interest at stake: the need for secrecy on important confidential anti-terror programs.
But there’s still one step left before we get to consign the journalists to prison. And it’s a big one.
If prosecutors decide to prosecute, it’s ultimately up to a jury of 12 citizens, who must find the defendant(s) guilty beyond a reasonable doubt.
And there’s the rub. Because I strongly doubt that we could find a jury of 12 people to convict.
[Links/emphasis original.] I don’t think so, either, and mostly for the same reasons: It’s hard to escape politics — I can’t imagine why you’d want to totally disconnect from it, but sometimes I admit that doesn’t sound so bad — so it would also be hard to find a jury who would hear such a case against a reporter impartially. In a perfect world, these clowns and their clownish editor would be persona non grata in the White House and probably also the Pentagon, but the Bush White House is far from a perfect world. (In fact, Tony Snow has already said that the Times’s press credentials will not be yanked.) It’s hard to take any action against the reporters, no matter how much they may deserve it in this case, because to do so would give them (and many others) a First Amendment-martyr card to play.
As Patterico says, the danger in not prosecuting them is setting up a situation in which unelected editors at newspapers get to decide what is classified and not — not all or even most classified information covers up wrongdoing, and much of it — like this program — was classified for a good reason.
As for the idiot in the Bush White House that thought briefing Jack Murtha was the solution to your problem, well — he or she ought to be fired.
As for the leaker — let’s find and prosecute him. Prosecuting the reporters and locking them up doesn’t solve the problem here, which is that someone had to hand them this “scoop”. Compel the reporters to give up their sources, and then have a nice, long chat with each one of those sources.
What’s become apparent to me is that the journalists in this case seem to self-identify with the First Amendment right to freedom of the press — a freedom that belongs to all of us in equal portion. To see it misused in this case makes me angry. This is different from the NSA call-monitoring story — I still haven’t been convinced by anyone that the program was legal or illegal, but I’m not sure it matters; I’m not sure I want it to be legal — this program was a recommendation of the 9/11 commission. The Times itself even called for such a program in its own editorial page.
It seems what the Times really wants — along with many, many others — is a hammer to bash Bush and Republicans with. Any task that accomplishes that goal is deemed worthwhile (as I’ve been saying all along). This should not be read as a defense of Bush personally, per se. I have my problems with the guy; a lot of them, in fact, and it’s perfectly reasonable to assume he is ultimately responsible for appointing the leaker to his or her position.
Bashing is part of politics these days and is to be expected. But this manipulation of American security to do that bashing is and should be inexcusable.
Also: Do you suppose there’ll be polls on how Americans feel about this issue as there were in almost infinite quantity for the NSA call-monitoring story? I’d like to see them.
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