Jun 27 2006
Bush vs NY Times
I had to laugh today reading James Pinkerton’s take on the criminal behavior of the NY Times in their leaking of classified information. Pinkerton is one of those instant gratification types it seems. The ones who think if nothing happens the first few days nothing will happen ever. Here is his ‘logic’ on whether the administration will prosecute the NY Times:
So why hasn’t the Bush administration done anything? One answer, of course, is that the wheels of justice grind slow – and unseen, at least for a while. But a better answer comes from Fox News’ Bill O’Reilly, who argues that the Bush administration has been “intimidated†by the media and by allied critics in Congress. That would explain the Boston Globe story on Monday, detailing how the Bushies, who once asserted that the phone taps were perfectly legal just the way they were, are now willing to accept closer Congressional supervision. So score a media-political victory for the Times.
And so the Gray Lady has every reason to think it will win this latest battle, too. The fate of the war on terror, of course, is another story – but the Times is too busy crushing George W. Bush to worry much about that.
Pinkerton should have stuck with his initial guess – legal investigations take time. They take time for a myriad of good, American reasons. They take time to make sure all avenues have been completely explored so that no erroneous charges are made against the wrong people. They take time because they are done quietly and out of the public eye – to protect the people who need to participate as witness and target. They take time so that a solid as possible case is developed in order to ensure justice can be done (which is why the Fitzgerald perjury case against Libby is such a silly crock). We want a full, professional and non-publicized investigation so that good people are free to tell their story and the bad people are free to defend themselves in court.
Pinkerton thinks because the Gray Lady is still in business the whole thing is over. Nothing is could be more wrong. While people are emotionally reaching for the espionage and treason statutes, they are glossing over the more obvious and applicable laws (don’t ask me to cite them, I am sure some legal eagle knows the citations). And those have to do with handling and disemminating classified information.
When the NY Times went to the administration on both the banking and the NSA surveillance stories they were put on clear notice that they had in their possession classified information. They reported this fact so this is not in doubt. And they are more than aware of how to treat this information, as Keller pointed out in his CNN interview last night where he discussed the operational information embedded journalists have access to in Iraq. So there is no way for the NY Times to deny knowing the situation they were in.
So where does that lead us? Well, mishandling classified information could lead to heavy sanctions on the NY Times, and some administrative responses which could cripple the NY Times financially – and would be totally within the rights of the US Government. They could ban the NY Times from any press benefits and put a government wide moratorium on any discussions by government officials with NY Times employees. That would cut off all sources because any person in the government who violates the ban can be summary fired and lose benefits.
It is the kind of response one makes when it is clear the group cannot be trusted to handle sensitive information. It is the kind of response that does not make a media scene for the NY Times to martyr itself on. The NY Times has demonstrated multiple times a failure to protect national security information, and therefore has put American lives at risk (as well as relationships with critical international organizations). The obvious solution is to not to trust them with any information. And the only way to do that is block their access.
Simple. Measured. And it would hit the NY Times where it counts. You cannot be a paper of record if no one goes on the record with you.
Addendum: Leave it to Gabriel Schoenfeld at the Weekly Standard to cite the applicable laws:
The attorney general did not mention the 1917 Espionage Act or any other specific law. But if the editors of the paper were to take a look at the U.S. Criminal Code, they would find that they have run afoul not of the Espionage Act but of another law entirely: Section 798 of Title 18, the so-called Comint statute.
And yes, it seems our time warp problem with the site jumping back to last August is still here. I am beginning to think we have an inventive hack attack going on.
I think Pinkerton is jumping the gun here. I also don’t think it is any big deal that Bush let the Congress in on some of the NRA stuff.
The NYTimes needs to get prosecuted to the full for this. Otherwise, as a nation, we are set on a very perilous path.
This is a very complicated situation. The situation is complicated because it is sorrounded by deceit. There are a number of subtle factors at play here of the utmost importance. But, which everyone is fully aware of.
The NYTimes is leaving their position as a newspaper and taking on a position as a sensationalist propagandist vehicle for one half of this country. They do not make sales any longer by providing good stories, but by sensationalistic, divisive tactics. Everybody knows, win or lose, that this case which would come from taking them to court will feed the Left’s paranoid, propaganda hungry base. Yet, if we do not take this court to case… our very system of law will take an extreme beating… and the Left, who prefer lawlessness under the guise of “liberalism” will have established a contrary law which encourages more acts of effective treason from within the government.
Unfortunately, unless the Left will stop basing their base of ideas on lies… we will end up with a government that is completely clean of even legitimate dissent. That very thing they claim is true today will become true tomorrow because of their slanderous attacks.
What we need is national debate and agreement on who and what we are as a country and as the leader of the free world. We need mutual agreement about our history and our current actions in the world. What we have, instead, since the late 60s is indoctrination into a mass web of lying conspiracy theories which are so exalted that our “greatest” intellectuals are revered for teaching them.
Nobody should be surprised, therefore, that our government is a leaky ship.
I don’t think an Espionage Act prosecution is a good idea. I suspect that Keller and Sulzberger want such a prosecution.
Better to go after the leakers – and if the New York Times won’t cooperate, obstruction of justice (18 USC 1510) and criminal contempt (18 USC 402) will be nice tools to wield – and they are on much more solid ground.
After all, who wants to stick their neck out in support of obstruction of justice or criminal contempt of court?
Harold,
I was not suggesting an espionage act prosecution. Leaking classified information is a crime by itself without a spying motive. It is classic negligence of responsibity (like keeping control of your car).
AJStrata
True, but I have to wonder just what Keller and Sulzberger are thinking. This defiance seems intended to provoke the AG. I can’t shake the feeling that something’s up, and proceeding with caution is the best way.
Harold,
Oh I agree with you they want an espionage charge. But when they get a charge for mishandling classified information that will deflate their plans because they did mishandle classified data! No argument there. The fines are low, but the boycot of sources will kill them financially. It is a work of wonder!
Harold called this one right, I think.
If Keller, et. al., are called before a grand jury, presumably he/they will do as Judy Miller did, and refuse to identify sources. The bench can then order them to name the sources, they continue to refuse and can be confined for the (remaining) life of the grand jury for (civil)contempt. So far, they would be heroes of the left.
But, when the underlying act of contempt (standing mute) is construed to obstruct justice in a federal criminal investigation, that act of civil contempt can make him/them subject to a federal Criminal Contempt charge, with a no-limit penalty that can be several to many, many years in a federal penitentiary.
And, Criminal Contempt (for the underlying passive act of standing mute before a grand jury, and following a separate confinement for “life of a grand jury”) has been upheld by a federal appeals court and ruled to not constitute double jeopardy, with cert denied by SCOTUS effectively upholding a conviction, and the defendant in that case serving four years in the federal penitentiary at Sandstone, MN.
The difference is that the defendant in that case stood mute on Fifth Amendment grounds, where refusal to incriminate oneself would seem to be on firmer Constitutional grounds than refusal to identify another party who, by definition as a leak source of classified information, has violated federal law.