Editore"s Note
Tilting at Windmills

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February 17, 2006
By: Kevin Drum

IN THE DARK....Larry Franklin, a former Department of Defense analyst, recently pleaded guilty to leaking classified information and was sentenced to 12 years in prison. That's a stiff sentence and an unusual one but since Franklin worked for the Pentagon at the time of the leak it's at least easy to understand.

What's harder to understand is the case against Steven Rosen and Keith Weissman, the two former AIPAC lobbyists who received Franklin's leaks. It's true that they passed along some of the information they received to the Israeli embassy, but the government is deliberately not including that as part of the charges against them. Here is Fred Kaplan on the case against Rosen and Weissman:

Neither works for the U.S. government. Neither has a security clearance. (Rosen, a former official, used to have one, but it expired 20 years ago; the prosecutors claim that its terms are still in effect.) If Rosen and Weissman were accused of being Israeli spies, or if either they or AIPAC were labeled foreign agents, that would be one thing. But the indictment makes no such accusation....They're charged with giving classified information not to foreign governments or spies but rather "to persons not entitled to receive it."

This is what journalists do routinely every day. They receive information from insiders, write it up in a story, send it to editors, who publish it in newspapers, magazines, wire services, or on Web sites, all of which are seen by readers who have not been officially authorized to view that classified material.

....If [Rosen and Weissman] are convicted under this legal theory, the Washington Post's Walter Pincus or The New Yorker's Seymour Hersh could be next.

Is Kaplan overreacting? Maybe not. Here is Walter Pincus himself in the Washington Post today:

A lawyer familiar with the AIPAC case said administration officials "want this case as a precedent so they can have it in their arsenal" and added: "This as a weapon that can be turned against the media."

What's more, the same story reports that Pat Roberts, chairman of the Senate Select Committee on Intelligence, is considering legislation that would make it easier to prosecute leaks legislation that even John Ashcroft thought went too far. If Roberts is serious, the press could be in real trouble when it reports on things like the CIA's secret prisons or the NSA's domestic spying program.

For a more detailed look at the Franklin case and its implications for reporters who print leaked information, check out this piece by Eli Lake in the New Republic last year. As he says, "At a time when a growing amount of information is being classified, the prosecution of Rosen and Weissman threatens to have a chilling effect not on the ability of foreign agents to influence U.S. policy, but on the ability of the American public to understand it." Amen.

Kevin Drum 1:46 AM Permalink | Trackbacks | Comments (86)

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Comments

I keep waiting for that one more straw that will cause the mob to form outside the White House and to start the rioting in the streets. Enactment of this, and its effects just might be the one.

Posted by: Robert Earle on February 17, 2006 at 2:05 AM | PERMALINK

Kevin, three times now today -- with the global warming, the Gitmo story and now this leak case -- you've caused me to just stop and just go "Oh shit." Someday when my grandchildren ask me "What was it like to watch American civilization crumble around you?" I'll be able to recall this and begin my long, sad story...

Posted by: jonas on February 17, 2006 at 2:09 AM | PERMALINK

If Roberts is serious, the press could be in real trouble when it reports on things like the CIA's secret prisons or the NSA's domestic spying program.

This would be a good thing because the press should be in trouble. Democrats in the CIA leaked the CIA's secret prisons in order to attack the Bush Admistration for partisan purposes. Then the Democrats in the CIA also leaked the Terrorist Survelliance Program which was used by George W Bush to prevent the Liberty Tower in Los Angeles from being attacked and therefore saved thousands of lives. We should do everything possible to defend the national security of this country of ours by imprisoning both the liberal Democrats who have infiltrated our intelligence services using it for their own partisan purposes and their liberal media allies.

Posted by: Al on February 17, 2006 at 2:11 AM | PERMALINK

Set a precedent? Maybe they're using an untried obscure USA PATRIOT act statute just to make sure Rosen and Weissman get off without a conviction.

Posted by: ranaaurora on February 17, 2006 at 2:15 AM | PERMALINK

frogs in the pot
At this pace, there will never be a "last straw". One by one the frogs in the pot will turn belly up till those remaining are swimming in a sea of gooey boiled flesh.

Posted by: joe on February 17, 2006 at 2:22 AM | PERMALINK

Yay! An "Official Secrets" Act!

Except there was no Act of Congress, it's all "legislating from the bench," purely within the Original Intent of the framers of the Constitution, of course.

... Fuck you, I got my First Amendment Award.

Posted by: judy miller on February 17, 2006 at 2:35 AM | PERMALINK

Look !!!

dead floating frogs !

Ribbit !

"Those who make peaceful change impossible make violent change inevitable" - attributed to John F. Kennedy

Posted by: daCascadian on February 17, 2006 at 2:37 AM | PERMALINK

Liberty, Libbery, Library Tower... whatever...

And then there's that guy, with the acetylene torch, gonna graaaadually take down the Brooklyn Bridge (conspiracy theory On Sale Now!)

Oh pretty please oh great saviors PLEASE save us scaredycrats from certain DEATH by acetylene torches! Please, take my First and Fourth Amendment Rights, I wasn't using them anyway! Cause innocents don't need rights, since they don't cause no trouble. And criminals don't need rights, either, 'cause they is criminals 'n' terrorists 'n' liberulz.

Posted by: Namey on February 17, 2006 at 2:41 AM | PERMALINK

Al is Scottie.

Posted by: nut on February 17, 2006 at 2:47 AM | PERMALINK

I've been giving this some more thought and have come to a tentative conclusion that only individuals who have signed security clearances should be prosecuted under this particular provision of the Espionage Act. I'm sure judges will agree. If there is a prosecution based upon this provision, then it should be thrown out on First Amendment concerns, since there is no qualification in the First Amendment that says that someone who has not signed a contract to protect classified information must do so. Instead, the prerogative here obviously goes to the First Amendment, and proving "intent to injure".

Those who sign the security clearance affirm key portions relating to "intent to injure", thus making it possible to prosecute, and even probably to get a conviction, but anyone without a security clearance this burden will not be met, and the judiciary will not uphold it.

Last, I'd rather people don't get all worked up about this at the moment. If the prosecution is based upon this particular provision, it's a very stupid mistake by the Justice Department, and one that has probably been calculated to fail. AIPAC and other Jewish lobbies are putting full weight against the prosecution of Rosen, since he's one of them, they were involved, and it would be bad publicity.

A recent article in Commentary spelled it all out for me in excruciating detail, as I was reading between the lines. This AIPAC Rosen scandal and coming trial is a battle royale for them, and their plan is to scare the holy hell out of everyone that somehow this affects press freedoms, which it doesn't. The Bush Administration is likely complicit, and prosecuting under this particular provision they plan on prosecuting on just seems like a cover for picking the worst legal strategy to take in this prosecution to ensure a loss.

Ultimately, this is going to come down to big, BIG special interests cash and influence from the Jewish lobby, and I would have to guess the good (betting) money is going to go on the slush money winning out.

Posted by: Jimm on February 17, 2006 at 2:48 AM | PERMALINK

For the record, the Commentary article was designed to put a scare into people that the New York Times, Hersh, or their favorite journalist was going to and ought to be prosecuted under the Espionage Act if AIPAC and Rosen were.

This is obviously false.

The New York Times is laughing about it.

Why?

You have to prove "intent to injure", unless it's about communications intelligence (apparently), and even then they'd have to prove you leaked actual details about the program that would be novel. None of that has happened.

There is no threat at all to journalism, because of the burden of "intent to injure". Instead, there is just a tiny bit of uncertainty about communications and cryptology intelligence, but my understanding is that the New York Times carefully vetted that particular provision before publishing.

This is a false alarm.

Posted by: Jimm on February 17, 2006 at 2:54 AM | PERMALINK

Again, this is an example of right wing and special interests very effectively manipulating fears to control the frames and agenda. They are quite good at literally dominating the consciousness of people, even very intelligent, thoughtful people who aren't naturally skeptical about power or people in positions of power who are desperate to preserve and/or chomping at the bit to expand it.

If you want an example why the Democratic Party and liberals get rolled so much, this would be a very instructive issue to study and analyze very deeply and carefully. Who's running the show here? Spinning the memes? Convincing us that press freedom are in imminent danger when the opposite is really the truth, even if just examining the behavior and motives of the judges who allowed Fitzgerald to jail Judith Miller. Fitz was right, and those judges were right, and it is no threat to the freedom of press at all.

Posted by: Jimm on February 17, 2006 at 2:58 AM | PERMALINK

Set a precedent? Maybe they're using an untried obscure USA PATRIOT act statute just to make sure Rosen and Weissman get off without a conviction.

They've set it up so that it's win / win for them either way. They'd rather lose, so why not shoot for the moon in the process?

Posted by: Boronx on February 17, 2006 at 3:20 AM | PERMALINK

AIPAC and other Jewish lobbies are putting full weight against the prosecution of Rosen, since he's one of them, they were involved, and it would be bad publicity.

I mean Israeli lobbies, not Jewish lobbies.

Posted by: Jimm on February 17, 2006 at 3:34 AM | PERMALINK

Assaults on press freedom - no right to privacy - no right against search & seizure - no guarantees of due process - no free speech - no presumption of innocence - state-sponsored religion - no judicial review - nullification of laws passed by Congress - de facto legislation by the executive ...

It's really become touch and go whether the Constitution will survive another three years of this.

(I posted this yesterday at Carpetbagger on his post about rumors that GWB would dump Cheney and nominate his own successor. Like Jonas above, I'm really starting to have three-more-years panic attacks several times a day about many different news items.)

Posted by: BC on February 17, 2006 at 3:46 AM | PERMALINK

Solution: Let's start winning some elections.

Posted by: joe on February 17, 2006 at 4:42 AM | PERMALINK

Deja vu, all over again ... hello? Pentagon Papers? Ellsberg? Anyone?

Posted by: firefall on February 17, 2006 at 4:58 AM | PERMALINK


I think Joe's got it right.

When you win some elections, you can start making policy.

To win elections, you have to nominate electable candidates. Surely there must have been a better person to choose than Gore in 2000 or Flopper Kerry in 2004.
Blame yourselves, Dems, for choosing candidates who were so weak that they couldn't win.

As for you, BC, with your daily panic attacks, all I can say is that you are a fool.

Posted by: fred on February 17, 2006 at 5:09 AM | PERMALINK

Now there's a defense that would've worked well at Nuremberg:

"It's not my fault! If the Social Democrats had run better candidates in 1933, we never would have been in power to begin with!"

Posted by: Dustbin Of History on February 17, 2006 at 6:49 AM | PERMALINK

Jimm "This is a false alarm"

Every time the cook throws a couple more sticks of wood on the fire we get to hear idiots like Jimm talk like this. I hope you guys like frog stew.
What part of "incremental creep toward fascism" don't you understand?!?!
EVERY compromise of Liberty, Justice, Fair play, Truth, and Social Responsibility is a victory for fascism. In it's own twisted way the fact that Cheney was able to avoid arrest and an alcohol blood test is just as bad as this.
The filthy rich will be the only "real" citizens and all the rest will be 21st century peons.

Posted by: joe on February 17, 2006 at 8:12 AM | PERMALINK

The New Republic is essentially the Democratic wing of the Israeli Lobby. TNR attacks this case because it draws attention to the Israeli Lobby's elevation of Iraeli interests over US interests.

Posted by: Laney on February 17, 2006 at 8:21 AM | PERMALINK

Pat Roberts is submitting ill-conceived legislation - no big surprise there. The man is not competent to stay in office. I've seen a number of posts, comments, etc. making fun of Sen Roberts's "memory pills" on MTP last week, but none that address the seriousness of his admission that he has a "memory pill" prescription. The only "memory pills" I'm aware of are used to treat Alzheimers desease. Now, having lost my step-mother to Alzheimers a year ago, I am very sympathetic to its sufferers. But I remember that the first thing to go in the progress of her desease was her judgement. Do we really want as the head of the Intelligence committee someone suffering from a desease whose primary symptoms are poor judgement, deterioration of critical thinking skills, and lack of reliable memories?

Posted by: k2 on February 17, 2006 at 8:30 AM | PERMALINK

I read the NY Times article on the NSA program, and then told my wife about it. Am I in danger of being prosecuted? Jimm think that anyone who hasn't signed a security clearance form are in the clear. Maybe, but it so happens that I have signed one (for a completely unrelated matter in a former job). Should I lawyer up?

Posted by: me on February 17, 2006 at 8:49 AM | PERMALINK

I've always had a real problem with the idea that someone could "launder" secrets through the media,and the media could then play arbiter of our national security. I think two rules need to be in place:

1) If the media is told a secret, it must publish the *entire secret*, not portions in a manner to shape the story. In the NSA story, the NY Times exercised its own knowledge of our nation's security to hold back portions of the story that they felt would breach security. That's BS. They aren't qualified, and it ain't their job.

2) No keeping the leaker secret. If he or she reveals themselves to the paper as opposed to doing it anonymously, then the paper *must* reveal them to us. If the leaker wantsto remain anonymous, he must do so to the paper. Typically, the paper just says "an inside source who wishes to remain anonymous". BS. When you tell the paper something, it should be as if you shouted it from the hilltop wearing a flourescent yellow jersey.

Posted by: Red State Mike on February 17, 2006 at 8:54 AM | PERMALINK

This case is their attempt at an Official Secrets Act. Via the judicial system.

Irony? If Fascism were capable of irony, maybe.

Posted by: Jeffrey Davis on February 17, 2006 at 9:16 AM | PERMALINK

Solution: Let's start winning some elections.

We have won the elections. Haven't you been paying attention: Diebold Diebold Diebold.

Gore won by 40,000 or so in Florida! They simply threw out an entire class of ballots.

Posted by: Jeffrey Davis on February 17, 2006 at 9:19 AM | PERMALINK

Erm, didn't this question get settled in the Pentagon Papers Case? Or was that just for restraint before publication?

Posted by: Ugh on February 17, 2006 at 9:27 AM | PERMALINK

Um . . . Plame?

If it is now considered criminal to communicate information to "persons not entitled to receive it", then it's not just Libby and Rove who are going down, but Novak, Cooper, Miller, etc.

It's basically a race now. Can the people who still care about the Constitution and rule of law succeed in getting America to notice that the Republican leaders are boiling us all before our frogs are cooked?

Posted by: David Bailey on February 17, 2006 at 9:28 AM | PERMALINK

Destruction of the free press to protect the country's leaders from having to answer to the public for their abuse of power.

Now, where have we seen this before . . .

. . . oh, yeah, Nazi Germany, Fascist Italy, behind the Iron Curtain, Communist China, Castro's Cuba, Saddam's Iraq . . . .

The administration keeps good company, if you happen to favor tyranny as a legitimate means of governing.

Posted by: Advocate for God on February 17, 2006 at 9:37 AM | PERMALINK

Democrats boot candidate who didn't fit the mold

Joshua Green describes a legendary Eskimo practice of dealing with elders who have outlived their usefulness by placing them on an ice floe and sending them off to sea. Democratic minority leader Sen. Harry Reid and campaign chairman Charles Schumer employed a similar tactic on one of their party's most promising Senate candidates for the 2006 elections.


Paul Hackett, the Iraq War veteran who was running for the Senate in Ohio, announced this week that he is leaving the race because national and state party leaders have pressured him to withdraw and called his donors to dry up their contributions.

Posted by: nok on February 17, 2006 at 10:22 AM | PERMALINK

What powers do dictators have that W and the boys haven't claimed?

It's a done deal, folks. This ain't America anymore. Not the way the Civics books said.

Only a matter of time before they change the name and bring out some new symbols. I think there are some that aren't being used anymore lying around Germany somewhere.

Posted by: CN on February 17, 2006 at 11:00 AM | PERMALINK

Isn't the bigger question why spying for Israel isn't considered a crime?

Are our politicians that in bed with them?

Posted by: exhuming mccarthy on February 17, 2006 at 11:01 AM | PERMALINK

I call for an immediate revocation of Godwin's Law. It's no longer a) grasping, b) paranoid or c) over the top to compare what's unfolding in this country to the rise of the Third Reich.

Posted by: shortstop on February 17, 2006 at 11:02 AM | PERMALINK

Odd, Kevin Drum spent MONTHS last year, demanding that Karl Rove be prosecuted for leaking classified information.

Today, Drum says he wants leakers protected - if the leaks damage the Bush administration.

That's the hypocricy of the Bush-haters for you.

Posted by: Monkey See on February 17, 2006 at 11:09 AM | PERMALINK

Liberals want leakers prosecuted only if they are Republican. It's the height of hypocrisy to act that way and then claim others are fascists.

Prosecuting the press for illegal receipt of confidential information is good because receiving that information is ILLEGAL. Is that simple enough for people to understand? It's laughable that liberals would rather let terrorists have confidential information than let the Bush administration enforce confidentiality. They trust terrorists more than the American government.

Posted by: Tom on February 17, 2006 at 11:18 AM | PERMALINK

This is a no brainer. Franklin was the goy stooge -- so he goes to jail... and the chattering classes [with anglo sounding names like Parker] yell HOORAH!!

Rosen and Weissman - well, that's another story. hmmmmm -- how to absolve the Israeli spies without defending them as Jews???

Wrap the offending jews in the first amendment, and love of the press.....

how utterly jewish of them....

ISRAEL is the ENEMY -- not our friend.

Our government, media and academia are so infiltrated with Jews posing as non jews, that the American public is bombarded with disinformation that serves to protect treasonous Jews, and further the interests of a foreign government over our own.

This is treason boys and girls. And history will no longer be written by the Jews who manufactured WWI and II. When historians look back on how this virulent minority hijacked not only our government but our culture - to advance their own ethnocentric interests - we will have a better understanding of just what caused German nationalism.

Germany and Russia were destroyed from within by the virus called Jews.

Posted by: tj on February 17, 2006 at 11:22 AM | PERMALINK

What's the phrase I'm searching for? Oh, yeah: Fuck right off, tj.

Posted by: shortstop on February 17, 2006 at 11:23 AM | PERMALINK

Where do these goddam trolls come from? They're like locusts.

Posted by: Jay on February 17, 2006 at 11:23 AM | PERMALINK

Maybe not a bad thing. The sooner the US realizes that our press isn't "free" the better. In countries where the population knows the govt controls the press, people do not believe what they read. In the US people still believe what they read, which is a problem.

There's little discernable difference between stories our free press writes, on the Iraq war, for instance, and stories that a govt controlled press would write.

Effectively, on the important issues, there's no difference.

Posted by: luci on February 17, 2006 at 11:32 AM | PERMALINK

I call for an immediate revocation of Godwin's Law.

like Moore's law and Murhpy's law, Godwin's 'law' is predictive - it simply says on-line (specifically Usenet) conversations of any decent size will eventually include Hitler. Murphy's law notes that anything that can go wrong will. and Moore's law notes that Integrated Circuit chip complexity doubles every 18 months.

you can't revoke something that merely describes what happens.

Posted by: cleek on February 17, 2006 at 11:33 AM | PERMALINK

wow.. Monkey See is dumb!

Posted by: cleek on February 17, 2006 at 11:34 AM | PERMALINK

Ah, my mistake, cleek. I thought GL stated that once Hitler was invoked, the conversation had deteriorated irretrievably or further argument was rendered useless or something like that. Thanks for setting me straight.

(So can we revise it to say that in these times, the conversation need not be "of a decent size" for a mention of Hitler to be likely...or apropos?)

Posted by: shortstop on February 17, 2006 at 11:36 AM | PERMALINK

I call for an immediate revocation of Godwin's Law. It's no longer a) grasping, b) paranoid or c) over the top to compare what's unfolding in this country to the rise of the Third Reich.

Godwin's law is not normative, it merely observes that as thread length approaches infinity, the probability of someone being called a Nazi approaches unity.

There are normative viewpoints frequently associated with Godwin's law, suggesting that the person fulfilling the prediction has "lost" the argument, but that's separate from the law itself, and based on the faulty presumption that nothing in the real world is ever actually similar to the Nazis.


Posted by: cmdicely on February 17, 2006 at 11:39 AM | PERMALINK

All I can think of is, "be careful what you wish for." The left has been crying for these indictments - now we'll all have to live witht he consequences.

Posted by: DBL on February 17, 2006 at 11:45 AM | PERMALINK

As a long time reader and with a first-time post, I want to thank Kevin Drum for having spurred me to write about this one particular thread in this overall blanket of national security and defense.

Respectfully submitted.

Jim Gonzales
President
Chicano Veterans Organization
Phoenix, Arizona

Posted by: Jim Gonzales on February 17, 2006 at 11:46 AM | PERMALINK

Every time the cook throws a couple more sticks of wood on the fire we get to hear idiots like Jimm talk like this.

I assure you that I take positions in support of civil liberties and against encroachment far more consistent than most posters in these threads. I've been trying to put fires out around here for a long time. I'm no "idiot", and I'm not going to get rolled on this false danger to press freedom. If you really want to put out fires, instead of throw gasoline on them, then you need to realize that "fear" is the kindling.

Posted by: Jimm on February 17, 2006 at 11:49 AM | PERMALINK

If Roberts is serious, the press could be in real trouble when it reports on things like the CIA's secret prisons or the NSA's domestic spying program.

Let them try to engage this battle. They will never win. There is a long history of administrations trying to shut down the free reporting of the press like this, and failing dismally, indeed, having it backfire on themselves.

In the end, the Bush administration has to make the case that it would have served the public good, and not simply its own partisan purposes, by keeping this information under wraps. The public simply doesn't care very much about processes, but it DOES care about the public good.

And how is the Bush WH going to defend prosecuting, say, a leak about the NSA wiretaps, which harmed only its political reputation, while enabling leaks regarding Plame and the Iraq war, which served only its political reputation?

There was a time, a year or two ago, when the Bush WH might get some traction on this position, despite its hypocrisy.

But times have changed. It's very hard to get anywhere with a bad argument when you are also damaged goods.

Who's going to believe Flyboy anymore, or Dead-Eye? The credibility train left the station long ago. That's why smart politicians uses lies sparingly, instead of spraying them around recklessly like birdshot.

Posted by: frankly0 on February 17, 2006 at 11:49 AM | PERMALINK
The left has been crying for these indictments

No, the left has been crying for indictments for spying for Israel, which is what these people were doing.

But, of course, this Administration will use anything it does as an excuse to try to augment its own power, rather than serving the national interest in any way.

Posted by: cmdicely on February 17, 2006 at 11:52 AM | PERMALINK

Fear and money, that is.

Posted by: Jimm on February 17, 2006 at 11:53 AM | PERMALINK
The sooner the US realizes that our press isn't "free" the better. In countries where the population knows the govt controls the press, people do not believe what they read. In the US people still believe what they read, which is a problem.

There's little discernable difference between stories our free press writes, on the Iraq war, for instance, and stories that a govt controlled press would write.

The thing to realize is that the US has a press controlled not by the government, per se, but dominated by outlets subservient to the same narrow political faction which also controls the government.

Posted by: cmdicely on February 17, 2006 at 11:55 AM | PERMALINK

Whittington should just be glad he isn't Paul Hackett.

Who got rape and mugged by Chuck Schumer and then shot in the head by Harry Reid.

Reid even questioned his military service.

Of course, it will be hard to find anything about it here.

Posted by: Patton on February 17, 2006 at 11:56 AM | PERMALINK

Also, for the record, Kevin has essentially ignored the AIPAC scandal all along. He's been drinking the Kool Aid that it involves threats to press freedom all along. If you check how many stories he has on Plame, and how many on Franklin/AIPAC, you'll see Kevin has spent almost no time on Franklin/AIPAC. None of the major liberal bloggers has focused on Franklin/AIPAC beyond a few short comments when news stories come out, which is itself rare, including Atrios and Daily Kos. There has been a virtual blackout on major blog reporting on Franklin/AIPAC, so accusations of hypocrisy are not applicable here, at least not in the sense intended.

If you really want to figure out why liberals and the Democratic Party keep getting rolled, this Franklin/AIPAC scandal is the motherlode of insight. Study it deep, carefully, and thoughtfully. Examine the relative media coverage, both in the mainstream and blogosphere, for the Plame scandal and the AIPAC scandal. One was far more serious and grave than the other, and yet not even prominent liberal and Democratic bloggers dare touch that more serious and grave story. That's the real hypocrisy, or cowardice, or just cluelessness, in my opinion. And it has everything to do with campaign cash, special interests, cronies, corruption, and the Democratic Party wanting to be in the club, not shut it down.

Posted by: Jimm on February 17, 2006 at 12:00 PM | PERMALINK

I suggest that some of you who are new around here go back to Washington Monthly threads regarding Plame and Kevin's concerns about press freedoms (and shield laws). This is just a continuation of some of those argument strains.

Also, Roberts is an idiot, and we should spotlight what he does all the time. Let him be the GOP poster boy, and let those who care about civil liberties, left, right and center, know the guy is a dupe and menace. The only real sign of creeping fascism would be real evidence that the opposition gets convinced or intimidated into thinking that defending civil liberties (our tradition) is an electoral loser, or that ignoring special interest corruption and espionage is right if it involves Israeli interests, since they pony up so much cash for reelection.

Posted by: Jimm on February 17, 2006 at 12:05 PM | PERMALINK

Thanks, TJ, for your insightless comments - I knew there must be a reason for me to stop watching "Seinfeld" reruns and "Curb Your Enthusiasm".

You have freed me so I can go back and peruse Mein Kampf.

Sieg, baby, get down with "Da Man" - He was such a masterful painter - could paint an apartment in four hours - two coats - and this was before spray and Latex.

Posted by: thethirdPaul on February 17, 2006 at 12:11 PM | PERMALINK

I've said all along that we need to push a Freedom of Information amendment, to strengthen the Act, that also includes strong whistleblower protections, taking it out of partisan congressional hands for the long-term.

I've also mentioned we need to push a Privacy amendment, perhaps even bundled with the Freedom of Information amendment, so that we are clear and explicit about privacy rights, in conjunction with the 4th amendment, instead of the current implicit interpretation of the right to privacy.

Both of these are big winners.

The idea is that the people run the show, are the basis of government, and have a right to know how their representatives are doing their jobs. Thus, transparency will help accountability. On the flip side, our representatives and government have no entitlement to our private citizen information and property. Period.

Promoting this amendment, or amendments, would do far more than reacting to GOP frames in predictable ways. Instead, call their bluff and make them regret it. And, combined with the First Amendment, this would tie all the knots we need to tie, since the government cannot pass a law prohibiting the freedom of speech, or the right to petition the government for grievances, and if you take those two things into account, it's really hard to legally make the case that anyone without a security clearance has the obligation to keep information secret that they have learned (obviously, if they've learned it, and don't have security clearance, it can't be that "secret", can it?). The government can't prosecute citizens for saying what they know.

As for the question above, about those who have previously signed security clearances, the judiciary does not recognize clearances this wide in nature. It's a ruse. If you have a relevant security clearance, then yes, leaking that information without whistleblower protection exposes you to legal action. If it didn't, security clearances would be toothless, and the government may as well give briefings on all classified programs so that the media can report on it immediately. Obviously, that's not what we want, or would be a popular notion.

But if you read about a program in the paper, it is effectively no longer "secret", and just repeating it is obviously not a crime, just a red herring. There's no need to put up straw men and caricatures in order to frighten people so that Israeli spies can be protected from public and legal exposure and sanction.

Posted by: Jimm on February 17, 2006 at 12:15 PM | PERMALINK

jonas laments:
"...three times now today -- with the global warming, the Gitmo story and now this leak case -- you've caused me to just stop and just go "Oh shit." Someday when my grandchildren ask me "What was it like to watch American civilization crumble around you?" I'll be able to recall this and begin my long, sad story..."
Posted by: jonas on February 17, 2006 at 2:09 AM | PERMALINK


All because the American people were more comfortable with the 'down home' Texan with whom they'd like to have a beer while watching the big game, rather than with the 'nuanced' slightly effete French-speaking intelligent experienced politician.

Priceless.

Posted by: MarkH on February 17, 2006 at 12:15 PM | PERMALINK

As my last comment for the day, I wouldn't be surprised if our "tj" isn't what he/she seems. It just seems like too transparent and obvious a hater against Jews to take seriously, since we don't really get those kind of posters around here. Instead, "tj" could be a minimally effective propagandist spouting off cliche anti-semitism in order to color legitimate complaints against inordinate pro-Israeli moneyed special interests influencing our elections and foreign policy politics. I am no anti-semitist, and also am very aware that nearly 1/2 of Israel, if not more, does not sympathize with the right wing and/or zionist elements who have inordinate influence lobbying our politics or shaping the ideas of our neoconservatives.

Posted by: Jimm on February 17, 2006 at 12:18 PM | PERMALINK

The government can't prosecute citizens for saying what they know.

Unless they are sworn to secrecy on that specific information, of course, like with a grand juror.

Posted by: Jimm on February 17, 2006 at 12:21 PM | PERMALINK

Instead, "tj" could be a minimally effective propagandist spouting off cliche anti-semitism in order to color legitimate complaints against inordinate pro-Israeli moneyed special interests influencing our elections and foreign policy politics.

You know, I wondered about that. The idiocy of "tj"'s post are so obviously going to backfire in these parts that one wonders if that wasn't their intent.

Posted by: frankly0 on February 17, 2006 at 12:25 PM | PERMALINK
Unless they are sworn to secrecy on that specific information, of course, like with a grand juror.

Is the theory here a contract-like theory, a "reason to know" the potential harm theory (maybe combined with a voluntary waiver of free speech), or something else? I'm not arguing, I'm just trying to flesh out the underlying principle, because the implications for the parameters are different based on why we assume that an oath of secrecy should be criminally enforced.

Posted by: cmdicely on February 17, 2006 at 12:29 PM | PERMALINK

Well, keep in mind I'm arguing this philosphically, at least in the sense of the philosophy of American constitutionalism and law, but I'm suggesting that there is a freedom of speech in the First Amendment that basically disallows the government from banning speech. So, if I learn something, there's no reason I can't say it. How onerous would that be in terms of government power?

On the other hand, if as a condition of learning something, I sign a contract not to release the information, then certainly I can be held liable for this, depending on the nature of the agreement, whether civil or criminal. It is here where I would promote the whistleblower portion of the Freedom of Information amendment, however, in order to allow for breaches of these agreements based upon violation of trust, crime, implied ethics behind the organization sponsoring the agreement, and what not.

As for the "intent to injure" part, I see that at least in the SF-312 as guaranteed by the language of the agreement, since they very specifically put "injure" in the agreement as any unauthorized disclosure. Conceivably a private citizen without a security clearance could be prosecuted for "intent to injure", but it would be a whole hell of a lot harder to do.

The press is nearly immune here, since they don't sign nondisclosure agreements (or shouldn't) and have their own special set of First Amendment protections. The real issue is prosecuting the people who leak to the press, and it's disingenuous for Kaplan to pretend that this hasn't been illegal all along. Of course it's illegal.

So it boils down to journalists being coerced to give up their sources, and, in the case of Plame and Judith Miller, I agreed with the decision to compel testimony, and was satisfied with the care, gravity and due diligence taken by the judges coming to this decision.

Posted by: Jimm on February 17, 2006 at 12:40 PM | PERMALINK

If Roberts is serious, the press could be in real trouble when it reports on things like the CIA's secret prisons or the NSA's domestic spying program.

Even in the Wategate era, the press was being threathened by the Nixon administration, no sheild law needed. It's up to Americans to decide what is reasonable -so that if most Americans don't care that Bush is wiretapping, then he'll be able to wiretap.

Most American don't really seem to care that the Bush administration has mired the US in a 400 billion dollar war that we can do nothing but lose in end.

The press has spent to much time agonizing over bogus claims of liberal slanted news and not enough time with the truth or any real in-depth investigative reporting. Judith Miller and the NYT was an example of the newspaper smply not caring if they got a story right or wrong just that a reporter got to rub shoulders with this administration via only reporting stories the administration agree with - otherwise no access.

In this way Bush v. Gore is going to end up being the worst court case in history ever to befall a democratic society. Bush v. Gore was the birth of 9/11, and Bush's following isolationist policies that have caused a decline of US power in world and even of the half the population lost faith in anything just or fair in the US government today.

Posted by: Cheryl on February 17, 2006 at 12:51 PM | PERMALINK

In the Plame case, it comes down to me to the importance and nature of the disclosure. To be short, it was gratuitous, and there was little to no whistleblower or compelling public interest to know this information. For the government to look the other way on it, would be implicity admit that ALL national security clearances are toothless. I believe the judges in this case took this into account and felt Fitzgerald met the burden to compel the testimony of journalists due to the gratuitous and unjustified release of this information.

On the flip side, had this really been about government wrongdoing, about public representative wrongdoing, whether legal, ethical, or what not, so that it met a threshold that could plausibly be argued as compellingly public interest, then this likely would not result in compelling journalists to testimony.

I would promote the Freedom of Information amendment, in the Whistleblower provision(s), to address this very point explicitly, so that it need not be left to the judgement of individual judges implicitly. But, for the most part, we shouldn't yet confuse the hackery of the GOP with the judiciary, even if they are appointed by these hacks, and I see little danger in the judiciary suddenly determining that the press can be called to testify for any leak, no matter the importance or relevance of the story to public interest in offical wrongdoing. Still, to be safe, I'd promote the amendment.

The key balance to hit here is to allow for what the press does without taking the teeth out of any and all nondisclosure and national security agreements. The press doesn't have the right to traffic in any and all classified information, or classified information would be an oxymoron. Also, anytime the press does receive a leak about classified information, the source of that leak, if voluntarily sworn to silence, is technically breaking the law and/or agreement, in every case. The issue is whether current interpretation of other laws, rights and duties forgive and/or justify this. I'd like to make this determination, or at least the basis for it, a little more explicit with the amendment (unless the amendment were to get watered down along the way to passage, in which case one would have to decide if judicial precedent to date is stronger protection than passing a watered down explicit amendment).

Posted by: Jimm on February 17, 2006 at 1:07 PM | PERMALINK

Patton, shush. the adults are talking now.

Posted by: cleek on February 17, 2006 at 1:11 PM | PERMALINK

As one last thought, in regards to not being prosecuted for saying what you know, if you orchestrate a chain of events so that you privately learn classified information, that you know to be classified, and then use that information to your private advantage, or even worse pass it on to a foreign power, then I don't see a problem with prosecution here. The crime is conspiracy, since the disclosure was hardly accidental, but engineered.

The press would be immune from this interpretation as well, since when they publish, they do to all who pick up the news, i.e. publically, and also have additional free press protections from government intrusion.

Posted by: Jimm on February 17, 2006 at 1:19 PM | PERMALINK

In the Plame case, it comes down to me to the importance and nature of the disclosure. To be short, it was gratuitous, and there was little to no whistleblower or compelling public interest to know this information. For the government to look the other way on it, would be implicity admit that ALL national security clearances are toothless. I believe the judges in this case took this into account and felt Fitzgerald met the burden to compel the testimony of journalists due to the gratuitous and unjustified release of this information.

I think is pretty much on target.

What becomes immediately apparent whenever one talks about leaks -- as well as anonymous sources, for that matter -- is that the fundamental issue that one must come to terms with is the public good served, or undermined, by those leaks (or anonymous sources).

Now journalists simply HATE to think about the public good as a criterion for anything they might choose to do, because it puts them on the line in taking sides in political disputes. But, very often, there's just no avoiding it.

Serving the public interest MUST remain a fundamental consideration in any good shield law, as well as in the use of anonymous sources. Try to get around that fact, try to finesse things so that you don't have to face that issue squarely, and you're going to do a great deal more harm than good in relevant laws, and in the practices one adopts as a journalist.

Posted by: frankly0 on February 17, 2006 at 1:19 PM | PERMALINK

Jimm, do you have a day job?

Just curious.

Posted by: David Bailey on February 17, 2006 at 1:22 PM | PERMALINK

No keeping the leaker secret. If he or she reveals themselves to the paper as opposed to doing it anonymously, then the paper *must* reveal them to us. If the leaker wantsto remain anonymous, he must do so to the paper. Typically, the paper just says "an inside source who wishes to remain anonymous". BS. When you tell the paper something, it should be as if you shouted it from the hilltop wearing a flourescent yellow jersey. Posted by: Red State Mike on February 17, 2006 at 8:54 AM

Tell that to Publius, the anonymous pseudonym that the Founding Fathers used during the Revolutionary War.

Apparently they didn't have any problems with a truth teller using anonymity to warn/inform the public.

Why can't we be equally as satisfied with this?

Oh yeah, 9/11 changed everything. Apparently even the very fabric of space-time as well.

Scaredy, yellow-belly, conservatives can leave this country if freedom scares them so much. I take my liberty and my danger.

Posted by: Dr. Morpheus on February 17, 2006 at 1:24 PM | PERMALINK
The press is nearly immune here, since they don't sign nondisclosure agreements (or shouldn't) and have their own special set of First Amendment protections.

I think its a mistake to view "the press" (referring to a class of persons) as having special protections; the "freedom of the press" is a freedom of a kind of behavior, its exactly the freedom of speech when that speech is in print, not a different kind of freedom for a special class of citizens known as "the press".

Now, admittedly, lots of people, including (naturally) the whole of institutional media prefer to read that as providing special protection for "the press" as a class of persons, but I think that's both wrong and dangerous.

Posted by: cmdicely on February 17, 2006 at 1:25 PM | PERMALINK

tom: It's laughable that liberals would rather let terrorists have confidential information than let the Bush administration enforce confidentiality. They trust terrorists more than the American government.


yet......

rove outed a cia agent by talking to john dickerson and matt cooper about wilson's wife...

but when rove said he was not involved...and scott mcclellan also said rove had nothing to do with it...

dickerson and cooper....stood right up and called b-s......

Posted by: thisspaceavailable on February 17, 2006 at 1:36 PM | PERMALINK

Godwin's Law is nothing. It's like saying that you're not going find many married men who are bachelors.

As USENET discussion go on, the odds of Nazis getting mentioned approaches 1.

What does that NOT apply to? As USENET discussions go on, the odds of the Queen of Novaya Zemlya getting mentioned approaches 1. The odds of the sweat glands of pregnant Norsemen getting mentioned approaches 1. Etc. Etc.

Posted by: Jeffrey Davis on February 17, 2006 at 1:41 PM | PERMALINK

The odd approach 1 at a much faster rate when discussing the George W Bush regime.

Posted by: parrot on February 17, 2006 at 3:25 PM | PERMALINK

Seems like a clearcut case of spying to me, with a little whitewashing due to...AIPAC involved! Pander!

Posted by: Myron on February 17, 2006 at 3:30 PM | PERMALINK

The odd approach 1 at a much faster rate when discussing the George W Bush regime.

Yes. Some infinities are larger than others.

Posted by: Jeffrey Davis on February 17, 2006 at 4:03 PM | PERMALINK

Ohh, yeah..the adults are talking.

The same adults who said, the PRESIDENT having sex with a LOW LEVEL GOVERNMENT EMPLOYEE, IN A GOVERMENT OFFICE, ON GOVERNMENT TIME, in which said President lied under oath in a court to avoid losing a SEXUAL HARRASSMENT lawsuit to another GOVERNMENT EMPLOYEE WHO CLAIM he propositioned her while she was at WORK at an Official Conference, WAS A P R I V A T E
matter.

But the VP on a private vacation, on off time, on saturday, wounded a non-government employee at a non-government location, in fact a private residence needed to be immediately revealed to the Washington Press Corpse as the scandal of the decade.

IS IT THOSE ADULTS YOUR TALKING ABOUT??

Posted by: Patton on February 17, 2006 at 5:46 PM | PERMALINK

Jimm:

Franklin and what's-his-name are small fry to me. So some national security information was leaked to Israel - as I understand it, it was probably about the Iranian military. It was probably done to help Israel bomb Iran. But it's not as if Israel was going to be unable to bomb Iran about this information. What difference does it make?

These guys are small fry. Why would anyone go through such an elaborate charade to get them off the hook? Why not just have the Justice Department mysteriously fail to prosecute them, or screw the case up in a much more straightforward manner? Doesn't Occam's razor rule this out? Isn't it much more likely that this is another case of the Administration pushing the most extreme legal argument it can, with total disregard for realistic assessments of whether it can succeed? Hasn't it done that 1000 times already?

You're a smart and well-informed man, Jim, and I think your argument as to why AIPAC isn't likely to lose this case, and why therefore the press isn't likely to be threatened, is on firm ground. But I don't believe that this is a plan meant to trick the Democratic party into mistakenly advocating for this freedom. Nor do I believe that they would be mistaken to do so.

I'd rather see Franklin and these pro-Israel necons walk free then I would see the Bush administration win any case prosecuting people who leak classified information.
Hell, I'd rather let Scooter libby walk free then see Bush successfully throw anyone in jail for leaks.

One legal victory for the Bush administration on this issue, a victory of any kind, is much more threatening then Republican-based leaks. One legal victory is the thin edge of the wedge for a wholesale, if gradual, legal rollback.

Posted by: glasnost on February 17, 2006 at 8:16 PM | PERMALINK

Patton, so you're claiming that the press did not treat bill clinton's little episode there as a scandal.

I seem to remember wall-to-wall coverage for multiple years.

Care to try again? I bet you do.

Posted by: glasnost on February 17, 2006 at 8:18 PM | PERMALINK

The principle at stake is that foreign governments don't get to decide which classified U.S. intelligence they are to receive. The U.S. decides that. It's that simple, okay? Israel was obtaining classified intelligence unilaterally and illegally. Got it? It's that simple.

Posted by: Viacondotti on February 17, 2006 at 8:36 PM | PERMALINK

"""Patton, so you're claiming that the press did not treat bill clinton's little episode there as a scandal.

I seem to remember wall-to-wall coverage for multiple years.""""

AS WELL THEY SHOULD HAVE....BUT THE ALSO SPENT MORE TIME ATTACKING THE MESSENGER (KEN STARR THE ZEALOT, SEX OBSESSED IN THE POCKET OF BIG TOBACCO) AND SPENT ALOT OF TIMING CALLING REPUBLICANS HYPOCRITES.

WE HAVEN'T HEARD ANY OF THAT TYPE OF TALK FROM THE LEGACY DNC MEDIA.

Posted by: Patton on February 18, 2006 at 6:00 AM | PERMALINK

"""Patton, so you're claiming that the press did not treat bill clinton's little episode there as a scandal.

I seem to remember wall-to-wall coverage for multiple years.""""

AS WELL THEY SHOULD HAVE....BUT THE ALSO SPENT MORE TIME ATTACKING THE MESSENGER (KEN STARR THE ZEALOT, SEX OBSESSED IN THE POCKET OF BIG TOBACCO) AND SPENT ALOT OF TIMING CALLING REPUBLICANS HYPOCRITES.

WE HAVEN'T HEARD ANY OF THAT TYPE OF TALK FROM THE LEGACY DNC MEDIA.

Posted by: Patton on February 18, 2006 at 6:08 AM | PERMALINK

let's see.... what's the connection between Seymour Hersh and Mr/s Weisman and Rosen?

hmmmmmmmm

I'm going to try one more time here on these boards... the rest of you can go hide under your desks....

Hersh is a Jew! Rosen is a Jew! Weissman is a JEW!

ALL these men have ties to Israel that trump their American citizenship. WE are cannon fodder for the wars THEY instigate on THEIR enemies... making them OUR enemies...

Israel has conducted a coup on the American presidency and the congress. They have operatives in our premier universities - and this same ethnocentric cabal controls virtually every medium.

AND DONT TELL ME MURDOCH is not a JEW... his mother's name was GREENE... an Australian jewess.

And the reason Jews have been so successful is because many hide their identity with name changes... called crypsis.

Read The Culture of Critique... by environmental historyian Kevin MacDonald... University of California Longbeach....

He puts it all together, chews it up into little bitty pieces for the grass eaters... and then feeds it to them slowly.....

ITs the JEWS STUPID!!

Posted by: Ashley on February 18, 2006 at 10:38 AM | PERMALINK


All because the American people were more comfortable with the 'down home' Texan with whom they'd like to have a beer while watching the big game, rather than with the 'nuanced' slightly effete French-speaking intelligent experienced politician.

Don't forget which one hates gays.

Posted by: Boronx on February 18, 2006 at 10:57 AM | PERMALINK

Here Here Ashley.

I'm not sure Dems are up for that much truth in so few sentences.

I don't like our government in the grip of a foreign nation either. And I don't like it that nobody is allowed to speak of Israel's disproportionate influence on our foreign policy.

Actually, I fear you are more correct than hateful, just because no discussion of Jewish influence is tolerated on the left or right.

I am not sure Jews in congresss should be allowed to vote on bills that affect Israel. It is certainly a conflict.

Americans would be screaming if there were 10 Muslim Senators always banging the drum for Islam.

And there are as many Muslims as Jews in America. There are more Mormons than Jews in America.

Why not 10 Mormon senators?

Posted by: scott on February 18, 2006 at 1:02 PM | PERMALINK

Wasn't leaking bad during Plamegate?

Hypocrisy, Kevin. People who are blatantly guilty of it have no credibility. Hence the state of the far left.

Posted by: McA on February 19, 2006 at 11:07 PM | PERMALINK
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Posted by: 4342 on February 20, 2006 at 2:29 AM | PERMALINK




 

 

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