Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

March 5, 2006
By: Kevin Drum

SHIELD LAW UPDATE....This is why I think we need a federal shield law for reporters. Unfortunately, it's also why we're not likely to get one.

Let me say this flatly: Leaks are good. They are the way we hold paranoid and secretive governments accountable. Historically, leaks have virtually never harmed national security in even a minor way, despite plenty of shrill commentary to the contrary. Reporters should be allowed to print them without fear of being tossed in jail.

If the Bush administration succeeds in changing this tradition and tradition is all it is at the moment we will all have lost a very great deal.

Kevin Drum 12:50 AM Permalink | Trackbacks | Comments (95)

Bookmark and Share
 
Comments

Don't be too discouraged. I remember people saying that Nixon had permanently damaged all sorts of institutions, yet the backlash after he resigned led to changes that were unimaginable when he was reelected in 1972.

Posted by: HankP on March 5, 2006 at 12:59 AM | PERMALINK

Of course, it is still legal for the Bush administration to leak whatever they find politically convenient, right? Even if they are leaking classified info (such as Plame's identity).

Posted by: bt on March 5, 2006 at 1:00 AM | PERMALINK

Any minute now Cheney will say
- The administration didn't leak plame's name, and
- "everyone" knew she worked for the CIA, so wasn't really a leak

These guys need a new photocopier - the old one is smudging up their logic.

Posted by: craigie on March 5, 2006 at 1:21 AM | PERMALINK

Playing Devil's Advocate, who gets to be covered by such a Shield Law? Reporters for major papers? Self-described reporters like Gannon? Professional bloggers? Anybody who sets up a blog? Anybody who posts on a blog?

Given that reporters don't have any sort of license or abide by any sort of ethics guidelines, I fail to understand how the line gets arbitrarily drawn on who qualifies for Shield Law protection.

Posted by: tinfoil on March 5, 2006 at 1:30 AM | PERMALINK

Not to mention that the illustrious Fourth Estate doesn't do a helluva lot with material that's in plain sight. It didn't take a lot of digging to see that the case for the Iraq invasion was bogus.

Why no mention of the Dems' rollover on "Patriot" Act renewal? I think I know....

Posted by: sglover on March 5, 2006 at 1:34 AM | PERMALINK

Dean Atcheson told Truman, who was trying to limit the speech of disaffected Democrats at the '48 convention..."Free Speech is there to limit government."

Does anyone with a brain believe these Republicans would be saying the same thing with a Democratic POTUS? Thats all this is about, IOKIYAR. The Republicans have no credibilty and its foolish to give them the benefit of the doubt like the MSM is still doing.

Posted by: mark on March 5, 2006 at 1:38 AM | PERMALINK

Kevin, I agree with the concept of a shield law theoretically, but frankly, I don't see the point of discussing it now.

First and foremost, the Republicans have control of the executive, legislative, and judicial branches of our government. Nothing of substance regarding such a law has a chance of being passed. Witness McCain's so-called anti-torture law and the recent court ruling showing its uselessness or Bill Frist's recent (and I add, only the most recent) threat to change the rules and traditions of the Senate in order to preserve the Republican party's hold on power.

Secondly, and of more concern, is this administration's refusal to be bound by any law or international treaty that restricts its power to do whatever it wants. That is not a polemical statement, I believe that it is objectively, demonstrably true. Republicans and their apologists don't deny this state of affairs, they simply use tortured logic and dubious precedents to justify it.

Posted by: lucienc on March 5, 2006 at 2:07 AM | PERMALINK

It seems to be a big game of gotcha going on inside the beltway. But at what point do you say enough? Too much disclosure is damaging the country.
I disagree with Kevin that a leak has never caused any real damage. I believe it was during the early part of WWII, some Congressman, in trying to boost his image with the public, told a reporter that the Japanese were setting their depth charges too shallow when attacking our subs. He was trying to show how stupid they were. Well it didn't take long for the info to get back to Tokyo, and we started to lose more subs to attacks.
You never know when someone can place together several semingly innocuous pieces of information into something very vital.
There is some speculation that Sen. Rockefeller may be trying to cover his own ass as his name as that of his staff have been mentioned as being the source of the NSA leak. Also being investigated is the office of Sen. Durbin.
Now some here as suggested that much of the leaks come from the admin., but I think there are many career staffers in Federal service who think they know better than the current admin. So they leak damaging material to hurt the objectives of the admin. It was not too long ago that reports came out of discontent at Foggy Bottom where staffers could not understand why GWB and Condi wouldn't follow their advice. Why should they dictate U.S. policy? They were only elected. The staffers had been around for years and knew better. That kind of self importance leads to the leaks we see today.
The media has also changed over the years. Gone are the days when a reporter would not report on the personal indicretions of a Kennedy of a Johnson. It's a gotcha game and to the winner goes the headline of today.
Each week now seems to be a different gotcha. Three weeks ago it was Chaney and the shooting in Texas. Where is that now?
Then it was the video of the Katrina briefings. A big gotcha. Except that the AP had to issue a big correction and explain the difference between the topping of the levees and a levee breach and what that difference made in the videos shown to the public.
Then it was the Zogby survey that seemed to go against every other study of the thoughts of the troops. Now his methodolgy and absence of some critical questions, along with the sponsor of the survey and the org. that reviewed the questions, all brings the results into doubt. Zogby's response, like that of other media figures recently is "you have to trust me".
Well excuse me if I don't based on past performances.

Posted by: Meatss on March 5, 2006 at 2:22 AM | PERMALINK

FYI The shield law proposed in WA specifically excludes bloggers and anyone who doesn't make "a living" as a journalist. Even part time freelancers wouldn't count.

http://www.horsesass.org/index.php?p=1428

Posted by: ChetBob on March 5, 2006 at 3:00 AM | PERMALINK

If you are going to accept that the government has the right to keep secrets (and I don't think anyone serious suggests that it does not) how can you say that certain private citizens should have the right to make their own decisions to reveal such information?

Posted by: Michael Friedman on March 5, 2006 at 3:38 AM | PERMALINK

FYI The shield law proposed in WA specifically excludes bloggers and anyone who doesn't make "a living" as a journalist. Even part time freelancers wouldn't count.

Great. Our security in the hands of journalism school graduates.

Seriously, the problem with any shield law is that it would have to have some kind of arbitrary limits somewhere, or reporters could pretty much print any secret information they liked with no consequences. Who decides?

Posted by: tbrosz on March 5, 2006 at 3:39 AM | PERMALINK

tinfoil >"Playing Devil's Advocate, who gets to be covered by such a Shield Law?..."

Everyone except elected officials

"...We don't have news, we have stories inspired by current events..." - Stirling Newberry

Posted by: daCascadian on March 5, 2006 at 3:40 AM | PERMALINK

BTW, Porter Goss does not agree that these leaks have done no damage, or that releasing info to the press is the right way to address problems.

But I'm sure Kevin knows more about our intelligence operations than Goss does.

Posted by: tbrosz on March 5, 2006 at 3:46 AM | PERMALINK

Yes, tbroz, Porter is doing "a heck of a job." The last person leaving clandestine operations can turn the light off.

Posted by: DevilDog on March 5, 2006 at 3:57 AM | PERMALINK

Goss is a hack who appointed a crook to the #3 spot at the CIA. Ignore him.
Cheney, as usual, tops the idiocy scale.
I'm not even going to explain what is so wrong about his comparison with the Hanssen case, since I know it's obvious to everyone else already.

Posted by: marky on March 5, 2006 at 4:08 AM | PERMALINK

Meanwhile, back to the original post . . . A shield law would be great, if it could be designed to protect real whistleblowers, not administration officials punishing political opponents and engaging in character assassination, or worse.

Posted by: DevilDog on March 5, 2006 at 4:26 AM | PERMALINK

the issue should not be about 'classified information'; the issue should be about protecting those who would reveal that our government is BREAKING THE LAW. Bush to an oath to faithfully execute the law. When he approved of wiretapping US citizens, he committed a HIGH CRIME. He should be impeached. Everyone who is here bemoaning some 'damage' from these leaks: please, quit with that canard. Bush and his cronies could not give a rat's behind about that. They are simply trying to punish those who would reveal their crimianl activity.

Posted by: slammin' sammy on March 5, 2006 at 6:45 AM | PERMALINK

How about a shield law for non-secret information to start? Remember that the issue is the ability to shield a source, and this means not having to give a name to a grand jury or to a private attorney in a deposition.

I think we need to be careful about allowing reporters to cooperate in criminal acts without facing the consequences.

We might consider another story, not precisely equivalent but having some analogies: A private detective has been indicted for breaking several laws in pursuit of his investigations. What is the moral difference between what Pellicano did and what some reporters do? I acknowledge that there are differences, but there is some overlap. In each case, somebody is violating expectations of privacy in pursuit of some "higher" good. I'm not ready to agree that Enquirer level "journalism" is any higher than private detective work. At least most detective work doesn't end up in plain view at the supermarket checkstand.

Posted by: Bob G on March 5, 2006 at 7:24 AM | PERMALINK

In theory I think a shield law would be a good thing, but you have to consider the consequences. It would be harming the first amendment in an effort to protect it, because you'd have to define who is and is not the press. According to the 1st amendment press rights apply to everyone.

I know the big media companies would love to have the 1st amendment's press freedoms apply only to themselves, but that's no way to uphold the Constitution.

Posted by: Adam Herman on March 5, 2006 at 7:36 AM | PERMALINK

Even though a shield law isn't going to happen until Dems control at least one house of Congress, I'll toss some thoughts onto the pile:

1) Journalism ought to be defined in terms of the nature of the activity, in a way that's neutral with respect to medium, employment, etc. Specifically, such a definition should not register a distinction between op-ed columnists, bloggers, and talk radio hosts. They're all doing the same thing: news analysis. And news analysis is part of journalism. (When's the last time Broder or Will actually did original reporting?)

2) A shield law should shield those who need shielding from their superiors, not those who are 'leaking' on behalf of theis superiors.

How do you make this distinction? Simple: the law should specify that employees whose superiors tacitly approved or condoned the leak, and the journalists they leaked to, are outside the protection of the law.

A commonsense test should be used of how the officials in question reacted when the story hit the papers, and whether over subsequent months they genuinely attempted to find and punish the leakers.

Obviously there would be some judgment calls for courts to make, but that's OK. Most of the time, the distinction will be clear between leakers like Scooter Libby, whose bosses (Bush and Cheney) were clearly not too worked up about Plame's role as CIA NOC becoming public knowledge, and leakers like whoever leaked the NSA wiretapping story.

Posted by: RT on March 5, 2006 at 8:04 AM | PERMALINK

Where is the need for a federal shield law? The current system of court-created guidelines and prosecutorial discretion seems to adequately protect the interests of the public.

Whatever happened to journalists going to prison to protect their sources? If there is a serious need to reveal governmental wrongdoing, take one for the team and face contempt charges like a pro.

Besides, any shield law that applies to Tim Russert but not Glenn Greenwald or firedoglake isn't worth the paper it is written on.

Posted by: space on March 5, 2006 at 8:07 AM | PERMALINK

If your interested in the wingnut view of this issue, go over to RealClearPolitics and read Michael Barone's post. The idea that the evil, evil Republicans are going to grant the Jedi's of the MSM special rights under a shild law is foolish thinking. The only real issue today is if the left has given them enough of a figleaf, with this asinine Plame "investigation," to allow them to go after the NYTimes and others for their leaks on overseas CIA ops. If you think the average yaboo is going to shed any tears over this "New McCarthyism" go ask Judy Miller.
I consider myself a First Amendment absolutist, but the petulance and arrogance of the established press is going to make it hard to defend over the next few years.

Posted by: wks on March 5, 2006 at 8:17 AM | PERMALINK

RT: Your test does a good job of filtering out clearly pro-administration leaking, such as done by Libby. But not all that is left is legitimate whistleblowing.

It is easy to imagine that a government would get pissed off about many leaks for good reason. For instance, the Bush administration blew the cover of the Al Qaeda double agent in Pakistan (what, no hearings, Pat Roberts?). Imagine if the leaker wasn't Condi Rice, but rather was a low-level CIA operative, with sympathies to Pakistan. Surely the government would be pissed. But rightly so. So, the anger of the government cannot be the sole basis of conferring whistleblowing status.

Posted by: space on March 5, 2006 at 8:18 AM | PERMALINK

A shield law isn't going to happen because it's really not a good idea to have one. We have freedom of the press, people can print whatever they want. The last thing we needis for these organizations to have one more way to cover up their lies, and one more excuse to cover up for their sources. Let the supreme court parse this out on a case by case basis.

Posted by: SoulLight on March 5, 2006 at 8:24 AM | PERMALINK

Too much disclosure is damaging the country.

Wrong. Too much government secrecy is damaging to the country -- it seeks to avoid an informed public holding the government accountable. Too much disclosure is damaging only to the Republican Party.

Posted by: Gregory on March 5, 2006 at 9:30 AM | PERMALINK

But I'm sure Kevin knows more about our intelligence operations than Goss does.

Bait and switch.

A 5 year old has more knowledge of the consequences than a Bush toad.

Posted by: Jeffrey Davis on March 5, 2006 at 9:31 AM | PERMALINK

Great. Our security in the hands of journalism school graduates.

Recent experience suggests that possibility could hardly be worse than having our security in the hands of Republicans.

Posted by: Gregory on March 5, 2006 at 9:32 AM | PERMALINK

The NY Times, with the NSA story and their cheering for the Plame non-leak investigation has done more to put reporters at risk than anything the administration could do. There will be no shield law because the press is not responsible.

As far as examples from the past; The Chicago Tribune printed the Rainbow 5 war plan the week before Pearl Harbor. There were leaks about the Magic intercepts which fortunately the Japanese never heard about. In the book Queens Die Proudly, Kurtz quotes B 17 aircrew complaining about a magazine article that showed blind spots in the B 17 in 1942. Fortunately, our enemies have tended to ignore our press in previous wars.

Vietnam changed all that as they learned to manipulate public opinion. General Giap has been quoted as saying the North Vietnamese won the war in the streets of America, not on the battlefield. The al Qaeda organization has learned the lessons of Vietnam and stages most of their spectaculars for TV. They even tape car bombs and IEDs and give the tape to al Jazeera.

There will be no shield law and shouldn't be.

Posted by: Mike K on March 5, 2006 at 9:40 AM | PERMALINK

This should come as no surprise to any long-time observers of the Bush family or to students of fascism. The Bushes have long believed they are entitled to monarchical levels of secrecy and privilege that the Founding Fathers never intended.

Remember, Bush used 9-11 as an excuse to issue Executive Order 13233 in November of 2001, which basically gave former presidents the right to quash any review of their presidential papers and effectively negated the 1978 Presidential Records Act (see below):

http://www.fas.org/sgp/news/2001/11/eo-pra.html

It was one of Bush's first acts after seizing power in 2001 to make sure his Daddy's and Reagan's records never saw the light of day. 9-11 provided the cover to do that. The records likely would have shown that Poppy Bush, far from being "out of the loop" on the Iran-Contra affair, had actively bargained with the Iranian mullahs both in 1980, during the October Surprise, and in 1984-85, when he sold them missiles (illegally stolen) to fund the terrorists in Nicaragua. Had we been following the Constitution and investigated these hideously illegal acts to the fullest extent, Bush and Reagan would have been impeached and likely sent to the gallows for treason.

The only question now is whether Congress and the American people will follow the "tradition" - as Kevin quaintly puts it - of free and open government, and puts these fascists on trial for undermining the principles this Republic was founded on.

Posted by: Stephen Kriz on March 5, 2006 at 9:45 AM | PERMALINK

I am not sure what the purpose of your trackback link is, since it does not pop up a trackback URL

My trackback is at http://donsingleton.blogspot.com/2006/03/white-house-trains-efforts-on-media.html

One wonders whether Kevin would be equally in favor of a federal shield law if the Democrats held the White House and both houses of Congress.

And the way that "Hate America" Democrats can endanger American Security.

I don't know about historically, but the NYT leak about the NSA listening in on interenational calls involving Al Qaeda certainly did hurt our security.

Posted by: Don Singleton on March 5, 2006 at 10:19 AM | PERMALINK

Leaks are just news in different form.

Boorstin used to complain about fake news, which basically means press releases which the media covers as if something happened other than an announcement.

I've leaked stuff, e.g. front page stories in the Post and the NY Times, as a way to manage news. (A leak is generally more timely and valuable because it is exclusive: it gets better play.)

A shield law might make sense if it also established rules for classification. But it's a mug's game to try to protect reporters from being used (sorta like mandating chastity for streetwalkers); risk is related directly to reward.

Besides - what's the Constitutional issue this frames for the Roberts Court? Just how much authority have "We, the People" given the President to hide stuff from us, for our own good? When the Feds prosecute somebody for publishing a fact that is "classified" in the same document that is released selectively by the same people who brought the prosecution, what rights does the Constitution protect, with which clauses?

Posted by: theAmericanist on March 5, 2006 at 10:23 AM | PERMALINK

". . . the NYT leak about the NSA listening in on interenational calls involving Al Qaeda certainly did hurt our security."

Evidence, please, that NSA tapping actually involved al Queda (other than Administration assertions). And evidence that the NYT article damaged US security in any measurable way (other than Administration assertions).

I'm calling bullshit on this one.

Posted by: Joel on March 5, 2006 at 10:35 AM | PERMALINK

Let me say this flatly: Leaks that damage our national security are bad.

They are bad because they compromise the "methods and means" we use to track plots against the USA. They are bad because they tip the terrorists to what we are doing. They are bad because they may result in innocent Americans getting killed or maimed in terrorist attacks.

Sadly, elitists like Kevin Drum can't see this.

Posted by: Monkey See on March 5, 2006 at 10:38 AM | PERMALINK

Leaks may be good, but the quality of journalism, particularly television journalism, has declined so much I can barely bring myself to care.

Is there any chance we could create a shield law solely for written journalism - i.e. newspapers and blogs? I don't see why not. For whatever reason, journalism/commentary consumed in other manners - radio and television - seems to devolve so easily into total emotionally appealing dishonesty.

Posted by: MDtoMN on March 5, 2006 at 10:42 AM | PERMALINK

I don't know about historically, but the NYT leak about the NSA listening in on interenational calls involving Al Qaeda certainly did hurt our security.

A baseless assertion, Don, that demonstrates only your ignorance. The single greatest danger to our national security is the fruitcake wing that has seized control of the republican party.

Posted by: bobbyp on March 5, 2006 at 10:42 AM | PERMALINK

I agree with the sarcastic comment above, that Drum must know more about national security than everybody else.

He has alot of insight on national security from all his work playing tennis with other rich white people. Plus, all his hard work taking pictures of his cats. Not to mention going to all those USC games with other rich people.

Posted by: BigRiver on March 5, 2006 at 10:42 AM | PERMALINK

The only "security" that was damaged by the NYT article was the security that the Administration felt in violating the law by bypassing the requirement for court oversight. I'm happy to see this sort of "security" damaged. The Bush Administration was obviously insecure about their actions, which is why they hid them until exposed by the NYT.

The tolls here are attempting to conflate Administration "security" with national security. There is no evidence that US national security was damaged in any way by the NYT. None.

Posted by: Joel on March 5, 2006 at 10:42 AM | PERMALINK

In republican land, this is how terrorists talk on the phone. Of course they don't think anyone is listening in on their conversation, never. That is until they all read about it in the NYT and can you imagine the shock when all them thar tarrists realized that their phones might have been tapped?

G'wan!

Terrorist #1 : Hello Terrorist Al Qaeda operative #2

Terrorist #2 : Hello back, Terrorists Al Qaeda operative #1

Terrorist #1: Ready to cause more havoc and destruction against the great satan today?

Terrorist #2 : Praise be to Allah, let us plan our destruction on the infidels!

Terrorist #1: We;re talking in code now, okay?
Terrorist #2: S'right, we're using code names! Call me Gale!


Posted by: Jules on March 5, 2006 at 10:52 AM | PERMALINK

I still have no idea how the hell the NYT story about the NSA wiretapping actuall hurt us. If Al Qaeda didn't realize we were looking in on them already, then what the hell are we afraid of? THat's one of the things you'd take for granted if you have whole countries after you.

So how did we actually get hurt by this leak?

Posted by: Kryptik on March 5, 2006 at 10:54 AM | PERMALINK

Going to USC games with rich white people IS a lot of fun. What's a matter, bigriver, you not get invited again? Is that's what is wrong with most conservatives, they are just bitter they don't get invited to the parties and fun social events? There may be a reason no one calls you and asks you to come along, big river.

But I suppose you won't realize it just yet.

Posted by: Jules on March 5, 2006 at 10:55 AM | PERMALINK

Information control is tricky business.

I can't imagine many reporters happily going about their business if they have to always look over their shoulder for fear of going to jail.

This extends to all levels, all the way down to a student (K-pHd) digging up material for an article.

How could "truth" ever be revealed in a world where the press was intimidated?

Our enemies don't scan the news for hints about how to do us harm, they are far more savvy than that.

We harm ourselves when we limit what can be printed.

Truth isn't evil, it's idiots who believe their truth is better than "the truth," that are sometimes evil.

A censored press is the death of freedom.

Posted by: Tom Nicholson on March 5, 2006 at 10:58 AM | PERMALINK

I agress with Bush wholeheartedly. I think in times of war, any reporters that exaggerated or excarbated or fabricate a story should be dragged to jail. Look at insurgency Iraq, it's a media hoax, the media exaggerated, and possibly creating stories. Look at NSA spying, it's the media who leak out secret information. Look at the ports deal, again, it's the media who exposes the way our ports work. And look at the Dick Cheney's shooting accident, media gone wild. Look at mining accident, you mean to tell me that there has never been a mining accident ?! Media hyping up the accident. In these times of war, the media has the responsibility to tell the truth, not fabrications, exaggerations, and lies. I guess, it's hard to expect that from them nowadays, given media obsession with white damsels in distress.

Posted by: Mini Al on March 5, 2006 at 11:07 AM | PERMALINK

"If the Bush administration succeeds in changing this tradition and tradition is all it is at the moment we will all have lost a very great deal."

- don't be ridiculous, Kevin. The precedent here is the "fitzmas" investigation, which you and other liberal bloggers (along with leftie papers like the NYT) cheered on for months.

Everyone knows that Fitzgerald's is the case that established the DOJ's and/or an independent investigator's right to investigate press conduct if classified information has been leaked.

Now, with respect to any other leak, they can go to the CIA or any other part of the govt and request waivers, then go to journalists and say "look, I got waivers and the grand jury is ready to hear from you." Lefties will say that the Plame leak was "different" from other leaks in that one helped the party in power and other don't. But that's irrelevant. Leaks are leaks. The only way to distinguish between them is to estimate the degree of damage they do to our national security. That is the only standard that might be enforceable in court.

But it's too late to whine now. Shield laws will never happen. And after the Plame matter, noone on the left have any standing to demand one either.

Posted by: peanut on March 5, 2006 at 11:16 AM | PERMALINK

"Lefties will say that the Plame leak was "different" from other leaks in that one helped the party in power and other don't."

heh.

I'm always amused by wingnuts like peanut who tell us what we will say. In their pathetic, ignorant universe, liberals are not real people but just props, which they set up to rationalize their irrational arguments.

Posted by: Joel on March 5, 2006 at 11:19 AM | PERMALINK

There sure are a lot of people on this blog that want to give up their freedom to the fascists in charge. Do you see now why Germans in the late 1930s saw no problem with Hitler suppressing the free exchange of ideas through the media after the Reichstag fire.

Wake up you sheep!

Posted by: Stephen Kriz on March 5, 2006 at 11:21 AM | PERMALINK

Rep. Jerry Lewis of the 41st District in California was instrumental in the shield law in California. Perhaps he could help sponsor a federal law?
Geez, why should a federal investigation into his playing footsie with the defense contractors deter him. He could get Harris, Pombo, Doolittle, or Hunter to co-sponsor the bill - Their "civic" duty and all that.

Posted by: thethirdPaul on March 5, 2006 at 11:22 AM | PERMALINK

peanut, what an appropriate name you chose, dry, miniture and in a shell.

Posted by: Jules on March 5, 2006 at 11:24 AM | PERMALINK

In Iraq... writing/reporting the truth gets you killed.

http://www.khaleejtimes.com/DisplayArticle.asp?xfile=data/opinion/2006/March/opinion_March17.xml§ion=opinion&col=

If it can happen there, it can happen anywhere.

What if I write an article about secret prisons in the USA.

Do I deserve to be silenced?

What if I dig up information about how the US military is over-charging the tax-payers by hiring private contractors to deliver meals to the troops in the field?

Do I deserve to have a midnight visit by spooks who whisk me away to the above secret prisons?

What if I report that the privatization of FEMA has neutered it's ability to respond to large scale disasters?

How do you define national security?

To journalists everywhere, keep digging.

Posted by: Tom Nicholson on March 5, 2006 at 11:31 AM | PERMALINK

It isn't the REPORTERS (or I suppose more precisely, Novak) who did a bad thing merely by publishing that Plame was a CIA agent. I dunno why people have such difficulty understanding that these kinds of secrets are NOT the public's to keep: it's one thing to prosecute an official who breaks his oath to tell a secret to someone who is not only not cleared for it, but who will tell the world.

It's another thing to prosecute the guy he tells.

This should oughta be a Constitutional issue, IMNSHO, and not something protected by a statute.

Where did we give the government authority to arrest us for finding out what its doing?

Posted by: theAmericanist on March 5, 2006 at 11:32 AM | PERMALINK

Actually Kevin raises some interesting points. Reporters are trying to do their job and can't be expected to know whether a story they are about to publish will damage national security or the image of the administration.

As a part of sheild law legislation, I suggest we include a process by which the media forwards all of their stories and notes through a branch of the intelligence services prior to publication. We'd have a bunch of people (that all love America) go through the stories and decide what might violate national security and if needed interview sources to determine whether they also love America. Optimally this group would be insulated from politics. I suggest giving Porter Goss a life-time cabinet level appointment and allowing him to choose a successor to lead this agency. He knows better than Kevin Drum what might damage our national security.

This compromise would reduce the need for expensive and intrusive department of justice leak investigations and beef up our government on the national security front where most people believe we need to do more work.

Posted by: tbrosz on March 5, 2006 at 12:13 PM | PERMALINK

Good fake-tbrosz. Captures his faux logic tone well. The fake email address is the best.

Posted by: Joel on March 5, 2006 at 12:18 PM | PERMALINK

tbrosz: while your are in there do not forget to inform us of any weird polyp formation in the walls of the conduit that houses your head.

Posted by: nut on March 5, 2006 at 12:19 PM | PERMALINK

Joel you are a fool.

In general, I think the point of a leak is to call attention to illegal or bad conduct of the government at any level or in any agency. The premise is that the leaked information is for the benefit of the public and its interest in good and non-corrupt government. The problem with the Bush2 administration is that it is so paranoid, so driven by its governing for its (GOP)own successorship and its lack of honesty (known and serial liars in the likes of Bush2, Cheney, Rice, Rumsfeld, Frist, Delay and how many others) that there cannot be and must not be any trust given that gang of people. So what is the problem with leaking the truth in face of a mendacious,lying adminstraton? Especially, when the Bush2 administration is using "national security" and the negative connotation of the word "leak," (we should call it telling the truth or exposing the facts)to hide its unlawful and unconstitutional activities, its malfeasance, its negligence and its stupidity.

Answer me this you people that swear by Bush2 and the GOP, should any Adminstration be able to hide any of its illegal or unconstitutional actions, its corrupt and bad governance? If so, IMO the government becomes the enemy of the people because it is not working in the best interests of the people. Simple as that. If the government becomes the enemy of the people, than revolution becomes one choice of several to oust the bastards.

Posted by: pete on March 5, 2006 at 12:23 PM | PERMALINK

Uh, pete, you're the fool. Go back and read my posts and point out anything I posted that is opposed to the POV you just posted. I agree with everything in your 12:23 PM post, above.

I await your apology.

Posted by: Joel on March 5, 2006 at 12:28 PM | PERMALINK
.This is why I think we need a federal shield law for reporters.

First, I disagree that we need special privileges for "reporters" in any case (perhaps for actual "reporting", which would be more consistent with the 1st Amendment concept of freedom of the press, which is freedom for the act of publication, not freedom for a special media class.)

Second, I don't think a shield law would do much to discourage initiatives like this that use as a major tool the ability to charge reporters with substantive crimes like espionage rather than merely with witholding evidence. A shield law generally limits the cases in which certain evidence can be sought from reporters, but it doesn't privilege them to commit espionage, and it doesn't stop evidence from being sought from them when they are being investigated for crimes of their own when other evidence supports those charges.

You can't effectively control selective use of the legitimate executive power to vigorously prosecute every crime established by Congress with a shield law; it either won't do anything that effects the practice or it will be so broad that it will allow real and dangerous crime to go unpunished. The solution to abuse of that kind of executive power is not going to come through general rules, it comes through the public's power to choose the executive, and the Congress' power to hold the executive accountable for specific abuses.

The solution to every bad thing is not "there ought to be a law, so this can get taken care of by itself and we, in the public, can go back to sleep."

Some things actually require vigilance to deal with effectively. Abuse of the executive power to selectively prosecute is one of them.

(That being said, there is a real Constitutional question under the First Amendment, regardless of the fairly stark language of the statute, about the degree to which an individual in the public can be punished for revealing classified information without intent to harm the national security, especially with a reasonable subjective belief that the release would not harm the national security; but, again, that calls, if anything, for a reformulation of the relevant statutes rather than a shield law for a special class, or perhaps for a judicial ruling delineating the scope of government power in that regard and asserting First Amendment rights.)

Posted by: cmdicely on March 5, 2006 at 12:46 PM | PERMALINK

Its also worth noting that this is part of a repeating pattern in politics that almost always backfires predictably -- politician, often one that has gotten very good treatment from the media up to that point, starts to lose popularity, and blames the media for not being tame enough, so begins attacking the media with every tool available, both official powers and bad mouthing through spokesmen. This poisons the relationship with the media, generates bad stories on its own substance, and reduces the number of people in the media willing to shade things for the politician. Politician gets even more unpopular, attacks the media harder. Media coverage gets worse, making politician even more unpopular. Cycle continues, politician loses, "nattering nabobs of negativity" win.

Posted by: cmdicely on March 5, 2006 at 12:51 PM | PERMALINK

Let me guess: you are one of those demanding the immediate release of all those documents on Henry Cisneros, right?

I thought not.

but, assuming that you are in earnest, what would the elements of the shield law be? Surely, some secrets would still be protected, like perhaps the names of CIA agents deployed overseas, at time of publishing their names or sometime within the preceding few years.

Posted by: republicrat on March 5, 2006 at 12:52 PM | PERMALINK

Of course, it is still legal for the Bush administration to leak whatever they find politically convenient, right?

Exactly so, just as it was appropriate for the Reno Justice Department not to investigate illegal fund-raising activities by the Clinton-Gore re-election campaign. When Gore said "There is no controlling legal authority", he was stating the fact that the Attorney General was a Democrat, and indeed a Clinton loyalist.

A well-thought-out shield law might be a good idea, but you committed Democrats have to get over the idea that your party has clean hands.

Posted by: republicrat on March 5, 2006 at 12:56 PM | PERMALINK

" . . . but you committed Democrats have to get over the idea that your party has clean hands."

republicrat starts another skirmish in his crusade against straw.

Nobody posted that the Democratic party has clean hands.

Posted by: Joel on March 5, 2006 at 1:03 PM | PERMALINK

Although such comparisons are irrelvent and wholly unnecessary, it must be said that Clinton comes out as a saint in comparision to the current occupant of the White House on the issue at hand.

Posted by: lib on March 5, 2006 at 1:11 PM | PERMALINK

A shield law would be great, if it could be designed to protect real whistleblowers, not administration officials punishing political opponents and engaging in character assassination, or worse.

Yes, as tbrosz wrote, who decides what is "real" whistleblowing and what is merely personal criticism? As you have probably noticed, the parties always disagree on that issue in every particular case.

I personally am bipartisan, so my left side and right side are frequently at loggerheads. And being in the minority, I know that the leaks that I approve of don't promote any policies that I support. On the whole, I oppose the shield law, and count on the public to vote against an administration that is overzealous in prosecuting reporters who report what we need to know, and I count on the voters to support an administration that is appropriately zealous in prosecuting reporters who harm national security.

Whoever revealed the details in Jim Ryan's sealed divorce papers should be prosecuted, because it tarnishes the court system and potentially all sealed divorse settlements, but it isn't going to happen.

Posted by: republicrat on March 5, 2006 at 1:13 PM | PERMALINK

i love the two nutballs who use alleged wwii incidents as reasons to oppose a shield law in 2006. that war ended, uh, 60 years ago. and i doubt that either happened (at least in the way as told here). and no one citing nyt-nsa has actually said how that has compromised our security.

we need a federal shield law. it should protect anyone engaged in an act of journalism, meaning anyone relaying information to the public. it's not a matter of who is in office at any given time. government and those holding power need to be accountable to we the people, and the best way to ensure that is through a free and unfettered (at least minimally fettered) press.

Posted by: mudwall jackson on March 5, 2006 at 1:16 PM | PERMALINK

This isn't a subject I can comment on with any expertise, but it seems to me that if the Administration wants to stamp out leaks it should focus on finding the leaker through an internal investigation and not put pressure on journalists to reveal sources (thus threatening First-Amendment rights). Of course, internal investigations would only succeed if a paper or electronic trail could clearly identify the leaker or if the leaker were willing to answer a point-blank question honestly. Unlikely. So what we have is a situation where the leaker believes the public needs to know something important about policy, malfeasance, etc. but would rather see the journalist come under pressure -- including possible prosecution -- rather than do the honorable thing, step forward and speak on the record about what he/she knows.

It's a Good Thing that the leaker wants to provide information for public discussion but he/she also wants to protect his/her career. I suspect the Administration (read, Cheney) has tried and failed to get insiders to 'fess up to being the leaker. So the pressure will be brought to bear on the journalist as a way of identifying the leaker. And so the First Amendment comes under pressure and journalists have to live with the threat of prosecution for doing something that ultimately benefits everyone. But none of this would happen if (1) there were no reason to leak -- i.e. no widespread violations of basic values by the Administration, or (2) the leaker were willing to go on the record and face the consequences.

So the leaker is decent enough to want to reveal the rot at the heart of government but cowardly enough not to go public. He would rather see a journalist go to prison to protect his identity rather than lose his job. So his job is more important to him than the principles that supposedly motivated the leak in the first place. Pretty sad.

Posted by: DNS on March 5, 2006 at 1:30 PM | PERMALINK

You guys don't get it. Remember, the terrorists hate you because of your freedom.
The administration is getting rid of it, the terrorists don't hate you anymore and you won the War.
So simple, so clever.
Your Bush boy is really too smart (and he's taking care of the wealth part as well, don't worry)

Posted by: MabiorDit on March 5, 2006 at 1:30 PM | PERMALINK

You heard it here folks.

The Bush tilt towards India vis-a-vis Pakistan is break from decades old tradition of Washingon's infatuation with the muslim country.

What this means is that some quid pro quo has been agreed upon. Bush would not give away so much for nothing.

One or both of the following come to mind:

1. India supports USA in its stance against Iran. Which means some sort of action against Iraq's neighbor with nuclear ambitions.

2. India agrees to send a huge peace keeping force to Iraq and the American presence in the civil war torn country is sharply reduced.

Posted by: lib on March 5, 2006 at 1:52 PM | PERMALINK

lib --
Yes, there must have been a quo for our quid. Something along those lines, definitely.

Posted by: DNS on March 5, 2006 at 2:05 PM | PERMALINK

And this is relevant to shield laws . . . how?

Posted by: Joel on March 5, 2006 at 2:07 PM | PERMALINK

Mudwall Jackson The only shield law that can't be fudged consists of twelve people who take their resposibility seriously to do right in finding justice. Anything else can be fudged. When it comes to that sort of topic, governments have a long history of finding ways around anything nailed down. Caveat emptor.

Posted by: opit on March 5, 2006 at 2:12 PM | PERMALINK

'The Bush tilt towards India vis-a-vis Pakistan is break from decades old tradition of Washingon's infatuation with the muslim country.'
--lib

The irony of Bush meeting and cutting deals with a dictator who seized power in a coup while trumpeting mindless slogans about "democracy being on the march in the Middle East" seems to be lost on most Americans.

Posted by: Stephen Kriz on March 5, 2006 at 2:18 PM | PERMALINK

The Bush tilt towards India vis-a-vis Pakistan is break from decades old tradition of Washingon's infatuation with the muslim country.

Except there's no tilt. GWB has been careful to negotiate with both countries at the same time on most of the same things. It's one reason why Bush insisted on visiting Pakistan on this trip despite the increased security concerns.

Posted by: rdw on March 5, 2006 at 2:19 PM | PERMALINK

The irony of Bush meeting and cutting deals with a dictator who seized power in a coup while trumpeting mindless slogans about "democracy being on the march in the Middle East" seems to be lost on most Americans.

Not at all. Pakistan has elections scheduled for 2007. Americans understand their PM is in an extremely difficult position and still has been very helpful in the GWOT. The drones attacks in Western Pakistan were obviously done with his permission.

If there's irony in the bush position it's in Egypt and Saudi Arabia.

Posted by: rdw on March 5, 2006 at 2:22 PM | PERMALINK

If the Bush administration succeeds in changing this tradition

Of course he's going to change the tradition. The 1st rule of politics is, "Don't get mad, get even". He is absolutely going after leakers and should.

Posted by: rdw on March 5, 2006 at 2:27 PM | PERMALINK

1. India supports USA in its stance against Iran. Which means some sort of action against Iraq's neighbor with nuclear ambitions.

India will maintain it's tradition of non-alignment. Bush would never have asked and doesn't need India.


2. India agrees to send a huge peace keeping force to Iraq and the American presence in the civil war torn country is sharply reduced.

This is a disasterous idea that would not help Iraq AT ALL and would likely destabilize the large muslim population in India.

Iraqi's will take over the fight against the insurgency. There is no civil war.

Posted by: rdw on March 5, 2006 at 2:30 PM | PERMALINK

'Not at all. Pakistan has elections scheduled for 2007. Americans understand their PM is in an extremely difficult position and still has been very helpful in the GWOT.'
--rdw

Helpful? Two words - "Where's Osama????"

If Bush wasn't so weak, indecisive and willing to molly-coddle tinhorn dicators, bin Laden would be dead or cellmates with Manuel Noriega (an old Bush buddy) by now, and al-Qaeda would be a historical trivia answer like Black September. Instead, Bush bumbled into Iraq, let bin Laden escape at Tora Bora and continue to mock the U.S. and incite Muslim outrage and ensure at least another decade or two of instability in the Middle East.

Posted by: Stephen Kriz on March 5, 2006 at 2:36 PM | PERMALINK

rdw: As I said, it's my guess, based on the assumption that Bush must have asked for something in return for such a sweet deal for India that even Clinton could not dare to make. You are right that there are strong cases that can be made against my prognostications. However, they cannot be ruled out.

Posted by: lib on March 5, 2006 at 2:39 PM | PERMALINK

Iraqi's will take over the fight against the insurgency. There is no civil war.

You're a ridiculous boob.

Over Sunni dragged out of their homes and cars by and killed 7000 by Shi'ite death squads in the past few months in retaliation for attacks --

That's a civil war.

No amount of on-message talking points can change that.

Remember, you're not posting on Free Republic; you can drop the facade and just admit instead that there is a civil war and that you're going to continue spinning it as if there wasn't to win elections.

Posted by: trex on March 5, 2006 at 3:12 PM | PERMALINK

rdw - Of course he's going to change the tradition. The 1st rule of politics is, "Don't get mad, get even". He is absolutely going after leakers and should.

Nicely put.

Let me also add that Bill Keller is a whiney bitch for complaining now about what he is responsible for getting started in the first place. Those chickens came home to roost pretty fast, huh?

This is the REAL meaning of Fitzmas, libbies! The reason for the season and all that...

Enjoy.

Posted by: peanut on March 5, 2006 at 3:14 PM | PERMALINK

Washington said to be looking at deadline for Iran http://news.yahoo.com/s/nm/20060305/ts_nm/nuclear_iran_usa_dc

Hmmm, a deadline. That has a nice sound to it, doesn't it?

Posted by: cecce on March 5, 2006 at 3:18 PM | PERMALINK

Apologizing Joel. I simply misread your peanut comment.

Posted by: pete on March 5, 2006 at 3:25 PM | PERMALINK

I for one was gratified to see that Bush has found a sort of fix for his and his subordinates' bungling and incompetence. If it's never reported, I won't have to worry about it.

Posted by: Pleased on March 5, 2006 at 4:03 PM | PERMALINK

Apology accepted, pete. We're on the same side.

Posted by: Joel on March 5, 2006 at 4:19 PM | PERMALINK

rdw wrote: Iraqi's will take over the fight against the insurgency. There is no civil war.

trex responded: You're a ridiculous boob.

True, trex, but it's kind of comforting to think that rdw can write whatever his heart desires and he can believe whatever his heart desires.

Bless his teeny-weeny little heart. And may his dreams be equally sweet...

Posted by: poot Smootley on March 5, 2006 at 4:33 PM | PERMALINK

opit: The only shield law that can't be fudged consists of twelve people who take their resposibility seriously to do right in finding justice.

I agree with that.

Posted by: republicrat on March 5, 2006 at 5:17 PM | PERMALINK
Vice-President now being authorized to declassify information ; ) Posted by: Cheney
Except that the Executive order 13292 quoted as allowing this, didn't. Bush doesn't give a hoot about security, only secrecy.
Except there's no tilt. Posted by: rdw on
You seem to have missed the nuclear giveaway to India that was denied Pakistan. Rest assured, the Pakistani's did notice.
Where's Osama????" Posted by: Stephen Kriz
Pakistan is keeping him until he is needed for the next election in the US. Posted by: Mike on March 5, 2006 at 7:03 PM | PERMALINK

Let the GOP die trying (as a party).

Americans won't put up with it as long as there is a vigorous opposition party running on transparency and accountability.

Posted by: Jimm on March 5, 2006 at 8:42 PM | PERMALINK

let bin Laden escape at Tora Bora and continue to mock the U.S.

The only mocking I see associated with bin laden is the mocking of him by the late night guys and comedy central. keeping him alive has always had value for GWB.

Posted by: rdw on March 5, 2006 at 9:20 PM | PERMALINK

However, they cannot be ruled out.

GWB has an incredible amount on his plate and it's amazingly complicated. The diplomatic dance he has had to do with India and Pakistan, drawing each closer to the USA, without arousing
the suspicions of each other, and bringing them closer to peace, has been almost perfectly executed. Remember, they've been at war for much of the last 20 years and have been bitter enemies.

George knows the world has changed dramatically with the collapse of the USSR and the rise of Islamic radicalism. It's a historic monumental task to refocus our political and diplomatic powers from Western Europe to Asia. This administration has actively and aggressively pursued closer relations with virtually all of Asia but expecially Japan, India, Indonesia and Pakistan and been successful. He's signed free trade deals with Singapore and Australia and has agreed with South Korea to remove some US troops out of Korea and relocate many more out of the capital and out of the DMZ to defuse tensions and shift responsibility to the Koreans.

All of these actions are designed to bring the USA substantially closer to Asia and make Asia substantially safer. It's delicate diplomacy to highlight India while not making other strong allies of long standing nervous. GWB had already made it clear to the Japanese we support a security council seat for Japan and a much higher int'l profile as well as the elmination of all defense/military restrictions from their constitution.

With all of the efforts to defuse tensions and bring the region close the last thing GWB needs to do is try to force India to take positions regarding Iran it's simply not going to take. Iran is their ally of much longer standing than the USA.

Also regarding Iraq GWB has one plan and one plan only. We are building them an army capable of defeating the insurgency themselves. This has to be settled by Iraqi's. They've had 3 elections and have been negotiating their government almost continuously. It's happening. There's no possible advantage in bringing in another power at this stage.

ON top of this GWB has been wisely separating from Western Europe. Our interest have diverged and providing for their defense provides for a big expense but no asset. We simply cannot trust them and they've grown too weak to be of use militarily. This is obiously sensitive so it's been done quietly. Rumsfeld has reduced NATO troop counts permanently by 90%. Condi Rice matter-of-factly announced major State Dept shifts out of Western Europe to Asia in a speech all but ignored by the MSM. We stayed out of Kyoto and it will die a natural death as did the ABM treaty. Europe will always be an ally but of diminishing importance.

George had already changed things dramatically and he has 3 years left.

Posted by: rdw on March 5, 2006 at 9:53 PM | PERMALINK

"ON top of this GWB has been wisely separating from Western Europe. Our interest have diverged and providing for their defense provides for a big expense but no asset. We simply cannot trust them and they've grown too weak to be of use militarily."

heh.

So according to rdw, we don't need Western Europe. *They* have grown too weak to be of use militarily. Meanwhile, their troops sit at home with high morale, while our troops are finally figuring out that they've been lied to and expect (vainly) to come home.

Wow, rdw, you are truely a study in delusion. One could drive a truck through your last post and not even dent a single fact. Hilarious!

Posted by: Joel on March 5, 2006 at 10:17 PM | PERMALINK

"George had already changed things dramatically and he has 3 years left."

Dang! I take it back. This statement is correct.

George has changed New Orleans into a disaster area. He changed the budget surplus into a deficit. He's made the name of the United States synonymous with torture. He turned worldwide sympathy into worldwide disgust with an elective invasion and occupation of a country that was no threat to the US. He made the US custodians of an Iraq where civilians are being slaughtered at a rate that, in the US, would be the equivalent of a 9/11 attack every month and calls it "democracy." He's brought spying on US citizens back to Nixonian levels. He's made exposing CIA agents legitimate. He continues to promote a deal with the UAE, a nation that recognized the Taliban, laundered money for the 9/11 terrorists and continues to boycott Israel.

Yeah, George has changed things alright. In the sense that metastatic cancer changes things, George has changed things.

Posted by: Joel on March 5, 2006 at 10:28 PM | PERMALINK

I think to a significant extent the notion that annonymous leaks are good is a fiction created by the media to promote their self interest. With rare exceptions, why can't the "leaker" just go to the appropriate authorities or go to the press on the record? If your motives, principles and cause are good, what is the risk of going on the record?

In any other context, we consider annonymous information/rumors to be bad and unreliable. Why should we consider annonymous leaks to the press so differently?

Posted by: brian on March 5, 2006 at 10:50 PM | PERMALINK

With rare exceptions, why can't the "leaker" just go to the appropriate authorities or go to the press on the record? If your motives, principles and cause are good, what is the risk of going on the record?

You'll get fired.

Posted by: Jimm on March 5, 2006 at 11:02 PM | PERMALINK

Okay, you might get fired, although there would be legal protection against it. So you need to find a new job. More important, if the leak is so virtuous and important, wouldn't you typcially be protected against retaliation and, even if not, wouldn't any retaliation be worth for the good you accomplish?

Instead, we have a media dependent upon annonymous sources, who send out all kinds of garbage knowing they will not be exposed. I think overall, the system might be quite bad for the public.

Posted by: brian on March 6, 2006 at 12:19 AM | PERMALINK

Okay, you might get fired, although there would be legal protection against it. So you need to find a new job. More important, if the leak is so virtuous and important, wouldn't you typcially be protected against retaliation

You have no understanding of the current whistleblower laws and protections, do you?

Posted by: Jimm on March 6, 2006 at 2:48 AM | PERMALINK

"i love the two nutballs who use alleged wwii incidents as reasons to oppose a shield law in 2006. that war ended, uh, 60 years ago. and i doubt that either happened (at least in the way as told here). and no one citing nyt-nsa has actually said how that has compromised our security."

You idiot. Thanks for confirming my preconceptions about lefties being ahistorical boobs.

I would provide a reading list but I'm not sure you could get past the big words. Here's a link. Note the right wing source.

"we need a federal shield law. it should protect anyone engaged in an act of journalism, meaning anyone relaying information to the public. it's not a matter of who is in office at any given time. government and those holding power need to be accountable to we the people, and the best way to ensure that is through a free and unfettered (at least minimally fettered) press.

Posted by: mudwall jackson "

I suppose you would include the Rosenbergs as good reporters ?

Posted by: Mike K on March 6, 2006 at 9:42 AM | PERMALINK

Jimm,

You miss the point. The protection of virtuous and important whistleblowers I referred to was not under the law (although the law would provide some protection) -- it was protection by the media, supporters and the public. If someone outed something about President Bush that the liberals liked, the outer would became the ball of the party -- think of Joe Wilson, a pretty unadmirable person, but still the toast of democrats and liberals everywhere.

You also miss my larger point. We pay a price for all the garbage that is leaked to the press by annonymous sources. The public would be better served by full disclosure. The press has promoted the theme about the value of annonymous sources because the press likes them -- not because they are good for the country.

No apporach is perfect. But the importance and value of sheilding annonymous sources is at least grossly overrated, and the of the record tactic of annonymous sourcing actually may be harmful to the country.

Posted by: brian on March 6, 2006 at 1:12 PM | PERMALINK




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly