June 17th, 2013

Where to draw the line with journalism and classified information?

Glenn Greenwald could be prosecuted.

I don’t think Glenn Greenwald will be prosecuted.

But do you think Glenn Greenwald should be prosecuted?

It depends in part on how damaging the information turns out to be. But isn’t there an argument to be made that if this offense is winked at, the next one will be worse? Is there any reason to let the security of the US hang on the judgment of journalists such as Greenwald and newspapers such as the Guardian as to what classified information is damaging to national security and what is not?

[NOTE: The law in question criminalizes the publication of:

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

I refer you also to a previous and much more lengthy piece I wrote on the subject. Also note that Britain—the place where the Guardian and Greenwald are operating—has much more stringent laws on this than we do. But since the present violation involves US secrets rather than British ones I don’t see how British laws would apply.

Here’s an excerpt from my previous post, written in 2006, but I suggest you read the whole thing:

]Did McCarthy (or whoever the leaker actually was) really have no avenue but the press? If the leaker’s conscience was troubled by confidential information gained in the line of duty, didn’t that person also have a duty to go through internal channels or to Congress? Was this ever done in the detention center case, or did the leaker simply cut to the chase (and the press), assuming an internal investigation would go nowhere?

When that process is short-circuited, the leaker unloads his/her information in the most public way possible, which can end up being the most damaging way. Right now the only people deciding how bad that damage might be before it occurs are the leaker him/herself–hardly the most objective judge of that–and the press (ditto). Once the story is published, it’s too late: the cat is out of the bag, the horse is out of the barn.

The judiciary was meant to act as the check and balance on potential leakers and the press–and in the past, of course, we also had more self-imposed restraint on the part of the press, especially in times of war. Now, however, not only does the press see itself in the role of government adversary and whistleblower, but personal repercussions are few and far between, short of treason (a very hard case to make in most situations).]

17 Responses to “Where to draw the line with journalism and classified information?”

  1. Don Carlos Says:

    Times only seem to have changed since 2006. The press then was not anti-government; it was anti-Bush, anti-Cheney. Now, it is obvious to all here the press is pro-government, pro-Leftist. It’s reflexes have not changed since 2006. It’s the same old story, has not changed since the 1960s.

  2. blert Says:

    Spoke too soon.

    Now the leaks are all about GCHQ — the British side of Echelon.

    For those un-aware: the NSA and GCHQ are tag-team partners.

    They hooked up circa December 1942 to defeat the Axis Powers.

    This happened as a direct consequence of the British discovering that the Americans were in on their ‘game’ — and vice versa.

    Their need to unify came from the nature of the radio intercepts. Scattering broadcasts across the skies provided range — but spotty transmission quality. So the sender was compelled to re-transmit until a counter transmission confirmed that a (critical) signal got through.

    The more listening stations in on the network, the quicker and better the reception — leading to de-coding. Further, the more material you had to start with, the better you could stay up with the code — and codes within the codes — and military slang that was embedded within such transmissions. This last aspect is actually huge, since new idioms were ginned up all the time.

    GCHQ has officers woven throughout the NSA network — and vice versa.

    It was this combination that turned the tide of the U-boat campaign. To hide its importance, Allied historians have spewed an ocean of lies — or partial truths.

    The Atlantic Ocean is so vast that even better radars and sonars had only a trivial impact on the U-boat campaign. The back breaker was when the Allies broke into the German wireless traffic — and were able to concentrate B-24s into productive search boxes. Suddenly, the hit rate exploded upwards.

    It was at this time that the Allies started having great success in the Bay of Biscay. The Germans never even realized that their transit loses had exploded. At all times prior, transit loses were nil.

    The network was also decisive in the Pacific. The detection was flipped. Now freighters were targets.

    The network has been exposed time and again over the years.

    Now that GCHQ is being dragged into the public eye, things may change.

  3. Cappy Says:

    It’s like my dad said about the Arabs; “let ‘em kill each other”. Same way I think about liberals these days.

  4. parker Says:

    It’s like my dad said about the Arabs; “let ‘em kill each other”. Same way I think about liberals these days.

    Unfortunately the armed ‘liberals’ either work for government or street gangs. Somehow I can’t see them meeting at the OK corral. ;-)

  5. carl in atlanta Says:

    “The judiciary was meant to act as the check and balance on potential leakers and the press…”

    From what I’ve been reading it looks like the judiciary has failed us as well*.

    [* As well, that is, as the executive, legislative and agency branches of government have all failed us... Oh, what's that? There is no "Agency" branch of government? Really? Really? ]

  6. Don Carlos Says:

    As Neo has begun to point out (and I hope for more on this), trust in our higher authorities, whether judicial or other, has evaporated/is evaporating. And we cannot get it back, no matter how many ‘dozens’ of terrorist plots the gubmint claims to have foiled.

  7. bob r Says:

    “But since the present violation involves US secrets rather than British ones I don’t see how British laws would apply.”

    I have no idea what the British laws on the matter are but if they have something similar to the US law you quoted it would seem to be *very* straight forward (just substitute “British”, or whatever they use to refer to themselves, for “United States” — the “United States” would then be the “foreign government”).

  8. neo-neocon Says:

    bob r: if you follow the link to my 2006 article you’ll find a discussion of the British law.

  9. Richard Aubrey Says:

    Various things have been leaked inadvertently or purposely, for one reason or another. The wikileaks batch didn’t make much difference unless you were an Afghan trying not to be found working for the Americans or an American intelligence officer trying to convince a prospective source that his connection would be secret.
    Other than that….
    I’m trying to make up my mind on this. On one hand, the idea of every communication I make being stored someplace where it can be used by people like the IRS is frightening. I understand that mosques are excluded, but I’m not. As Palin said, they can’t find a couple of deadbeat potheads with a hot line to terror central but they’re checking everybody else.
    The first plot supposedly stopped by this–Zazi–was reported instead to have had its investigation triggered by some Brit intel. That worked so well they stopped paying attention to foreign intel courtesy and, voila, the Boston Bombers.
    Thing is, we have to trust these folks to tell us the truth about the plots. That’s tough, these days.
    IIRC, the program that had all kinds of folks riled up when Bush was POTUS was restricted to calls one of whose ends was a number found on a terrorist rolodex. Is that true, or was this picking-up-everything that was the issue?
    Some substantial resources are used on this. Is it possible to use them better elsewhere, including calls one of whose ends has a number found on a terrorist rolodex?
    I mean, what did they not have on Hasan?
    As to journalists, most of them deserve the most severe punishment. If they’ve done something wrong, the punishment should be worse. Troopship sailing in time of war…inexcusable.
    But what we have here is kind of in the middle. Greenwald has exposed what any prudent terr would expect is happening anyway.
    The surveillance state is probably madder that we know about it than that some of their anti-terr tactics are compromised.

  10. Ymarsakar Says:

    Greenwald should be terminated for being an agent of the Left, even if he doesn’t support Leftist alliance members in the US. That is a completely separate case for whether he should be terminated for any other thing.

  11. Waidmann Says:

    This is my first cut on my thoughts, so they may change upon further reflection (and other’s comments), but…

    I think prosecution might be a good idea. It would firmly establish that the 1st Amendment isn’t absolute. Over time, it may be possible to slap additional restrictions on the press….like, for example, Truth in Reporting. Make them vulnerable to law suits for erroneous reporting. Make them check their facts before reporting. Make them tell the truth about Conservative candidates or risk being sued out of business.

    Look what has happened to the 2nd Amendment. There are a whole boatload of restrictions on the books. Look at the rest of the 1st Amendment, as it applies to religious liberty. I think it’s about time the 4th Estate got its wings clipped back a bit.

    BTY, Neo, is that “I Recommend” bar down the left side of my computer screen (under the Monthly Archives) your recommended list? I recently re-watched that Romeo and Juliet version and loved it. I thought Olivia Hussey was an absolutely wonderful Juliet. I think I’m in love (again).

    Waidmann

  12. Geoffrey Britain Says:

    “since the present violation involves US secrets rather than British ones I don’t see how British laws would apply.”

    I don’t see how they would either. Greenwald is an American citizen living in Brazil. I imagine he could be prosecuted if he returns to the US or its territories.

    Thiessen is technically correct in that Greenwald did break American law. On the larger issue however, how can illegal but classified activity be exposed without breaking the law? Absent a minimum of trust in those elected to positions of power, oversight is impossible and the public legally helpless in the face of corruption.

    Then there’s what is legal and what is morally correct. When those in authority are acting illegally and/or immorally and are politically corrupt, the greater good is served by public exposure. In such a circumstance, to prosecute is to perpetuate injustice.

    Resulting in the condition that government is no longer of the people, by the people and for the people and has now, effectively perished from the earth.

  13. harold Says:

    Almost all of what is classified is fraudulently so. Declassify it all.

    The only time to be concerned with release of such information is when agents will die.

    The government is massive and totalitarian, sunshine is needed.

  14. neo-neocon Says:

    harold:

    Apparently you have complete access to all the classified information and are also a national security expert, and so you know how much of the classified information is vital to national security and how much is not.

    That’s sarcasm, by the way.

    I agree that much that’s classified shouldn’t be. But quite a bit should. And the revealing of the identities of agents is hardly the only thing that matters if it were to be made public. There are many details of the fight against terrorists that should remain classified in order to keep them from the terrorists themselves.

  15. neo-neocon Says:

    Geoffrey Britain: When people break the law, even for what they consider “moral” reasons (and it remains to be seen in this case—I am not certain their reasons are so moral, nor am I certain things were not released that are not damaging to our security), they must be ready to come to judgment under the law and if found guilty under the law to pay the penalty under the law.

    That has always been one of the tenets of civil disobedience, for example. The law does not get suspended because you believe you’re a good guy.

    Oh, and to not prosecute is to encourage contempt for the law and the spilling of more secrets. Perhaps we should just suspend all security intelligence programs and call it a day.

  16. neo-neocon Says:

    Waidmann:

    Yes, Hussey was really something. I seem to recall that Leonard Whiting, Romeo, said he fell in love with her during the movie, but she wasn’t reciprocating, although they were friends.

    Life doesn’t imitate art quite exactly.

  17. Geoffrey Britain Says:

    neo,

    Except for the frustrated sarcasm(?) of ” Perhaps we should just suspend all security intelligence programs and call it a day.”… I’m in agreement with the validity of the points you make.

    That however does not invalidate the validity of the points I made. Therein lies the conundrum. National Security concerns are valid and no doubt a proper variation of these programs is needed.
    So too, are the concerns I cite, where we only have a law breaking, politically corrupt administration’s assurances that they are not being used in ways that are decidedly unconstitutional.

    That we cannot see the ‘fire’ does not allow us to dismiss the massive amounts of ‘smoke’ that are evident.

    Again I ask, “how can illegal but classified activity be exposed without breaking the law? Absent a minimum of trust in those elected to positions of power, oversight is impossible and the public legally helpless in the face of corruption.”

    I would also point out that if we set the conditions for exposing governmental malfeasance that is being concealed within the rubric of “classified material” to be a willingness to go to jail, then precious few will be willing to make that sacrifice for the common good.

    And if whistleblowing does not apply to governmental malfeasance that can only be exposed by the illegal release of classified material then whistleblowing is constrained by the power of those engaged in political corruption because Obama can direct that anything be classified such that no oversight is possible.

    As you well know, it all comes down to trust and the Obama administration has repeatedly proven itself to be profoundly unworthy of our trust. The man and his administration blatantly lies every day for God’s sake.

    “you have to have a touchingly naïve view of government to believe that the 99.9999 percent of “metadata” entirely irrelevant to terrorism will not be put to some use, sooner or later.” M. Steyn

    “After we win this election, it’s our turn. Payback time. Everyone not with us is against us and they better be ready because we don’t forget. The ones who helped us will be rewarded, the ones who opposed us will get what they deserve. There is going to be hell to pay. Congress won’t be a problem for us this time. No election to worry about after this is over and we have two judges ready to go.” – Valerie Jarrett – Nov. 2012

    “The president has put in place an organization that contains a kind of database that no one has ever seen before in life. And that database will have information about everything on every individual in ways that it’s never been done before.” Congresswoman Maxine Waters

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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