Is The WaPo Ready For Round Two?
Now it's my turn. (Ladies first, if present, as I am a gentleman.) Marcie did an excellent job beating Harold Meyerson into the ground with his utterly ridiculous op-ed from yesterday. But today, the Post stepped in it again.
This piece is long--four pages--and I'm not posting the thing up completely. I don't need readers' eyes glazing over as they read this boring pap. I will, however, argue that the president's authority to carry out this operation is inherent under his powers enumerated under the Constitution. Case after case going to the courts have upheld his powers. As a matterof fact, I posted up a column regarding the New York Times "shark-jumping" escapade over the NSA program. John Hinderaker, blogger and lawyer extraordinaire, also posted a reply to the story. But what is insightful are the cases he cites, which are below from his post.
United States v. Clay--The court held that federal statutes prohibiting wiretapping do not "[forbid] he President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest."
United States v. Butenko--The court held that no judicial warrant was necessary where "surveillances ... were 'conducted and maintained solely for the purpose of gathering foreign intelligence information.'”
United States v. Truong--The court sustained the federal government's position, which it summarized as follows:
In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
The court explained why the President has the inherent constitutional authority to order warrantless electronic surveillance:
For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.
Case after case, the courts have upheld this position. The president has the authority to do this. There is no way around it. The courts are not going to overrule a precedent like this because the New York Times, the Washington Post, or the Democrats say so. they aren't the lawyers. They aren't the judges. And they don't make those decisions. The courts have, and they have upheld the president's authority to conduct this sort of surveillance, including those without a warrant.
In Truong, it was specifically explained that "A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations." (Emphasis mine)
The Times and the Post know all about leaks. They call them "whistle-blowers" as if some egregious crime has been committed. However, they are leaks under their legal definition, and both papers may have plenty to answer for should Director Goss have his request for a probe initiated. Neither paper has addressed the above cases which state that the president has the authority, and I'm positive they have not read up on the law involving their culpability in the leaks themselves.
Below is that law, in it's entirety, and I hope the Times and the Post take notes. (Emphasis mine)
§798. Disclosure of Classified Information.
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States 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—
Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
(b) As used in this subsection (a) of this section—The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;The terms “code,” “cipher,” and “cryptographic system” include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.
Now, I know a few people will contend that to bring charges against a news outlet for a leak is a long shot, at best. Not true. The press can't hide behind it's First Amendment rights; those rights aren't absolute. With the advent of rights, comes the responsibility to uphold them. The Times and the Post have not done this. (For those scratching their heads as to why I keep including the Post, remember that they were the ones who released the story of the rendition flights, and the CIA prisons abroad; these, too, were classified programs.)
History in America has shown several occasions where the government has gone after correspondants for their release of sensitive material. The most noted one was the case involving the infamous Pentagon Papers. The correspondants in question were found not guilty; not becasue they weren't, but because the prosecution bungled the case. Morison is the one case that can be pointed to that shows that leaks can be prosecuted, even if they do work for a periodical.
From 1974 to 1984, Morison, a grandson of the eminent historian Samuel Eliot Morison, had been employed as a part-time civilian analyst at the Naval Intelligence Support Center in Maryland. With the permission of his superiors, he also worked part-time as an editor of Jane’s Fighting Ships, the annual reference work that is the standard in its field. In 1984, dissatisfaction with his government position led Morison to pursue full-time employment with Jane’s.
In the course of his job-seeking, Morison had passed along three classified photos, filched from a colleague’s desk, which showed a Soviet nuclear-powered aircraft carrier under construction. They had been taken by the KH-11 satellite system, whose electro-optical digital-imaging capabilities were the first of their kind and a guarded military secret. The photographs, which eventually appeared in Jane’s Defence Weekly, another publication in the Jane’s family, were traced back to Morison. Charged with violations of the Espionage Act, he was tried, convicted, and sentenced to a two-year prison term.
Morison was seen all the way through to conviction, and the conviction was affirmed at every level up to the Supreme Court (which upheld the verdict of the lower courts by declining to hear the case). It would thus seem exceptionally relevant to the current situation.
In appealing his conviction, Morison argued along lines similar to those a newspaper reporter might embrace—namely, that the Espionage Act did not apply to him because he was neither engaged in “classic spying and espionage activity” nor transmitting “national-security secrets to agents of foreign governments with intent to injure the United States.” In rejecting both of these contentions, the appeals court noted that the law applied to “whoever” transmits national-defense information to “a person not entitled to receive it.” The Espionage Act, the court made clear, is not limited to spies or agents of a foreign government, and contains no exemption “in favor of one who leaks to the press.”
My thanks to Gabriel Scheonfeld to do the above research, which shows the press has no hole to hide in. The emperor has no clothes. Should an investigation be launched into the leaks, both papers might have some explaining to do. The Post will definitely have something to say as they are now providing new information about the NSA program, as admitted in their piece today (Linked above).
But what excuse can they give? Freedom of the Press? Not absolute, again. The press is not privy to the classified material within the federal government, and as in Truong we see why. This goes to the "increase the chances of leaks" argument the court put forth. We have seen that the press can't be trusted with national secrets. In 1942, the Chicago Tribune ran a story after the battle of Midway which declared we had broken the Japanese codes. The Tribune did have charges brought against it, but the courts deemed that no damage had been done as the Japanese clearly didn't know we had broken their codes. Again, classified material, leaked to the press, and passed onto the waiting masses. In this day an age, such a leak could have proved deadly to our forces.
The Times and the Post are translated into different languages, and beamed across the globe thanks to the Internet. Our enemies, though 7th Century minded, are quite tech-savvy, and they do know how to read. This is where the leak can kill us. If the press runs such stories, and our enemies get their hands on it, they change their tactics, which sets us back. We can't win this war if we continually have to start from scratch.
The investigations into whether or not the program is justified begins on Monday. Iyman Faris, recently pleading guilty to an attempted attack on the US is appealing--yes already--to the Supreme Court that his Fourth Amendment rights were violated by the federal government because they used the NSA program to nab him. So, we will see this head to the higher courts, for one last round of "whoop the Dems" when the courts reinforce their original rulings. And we may just get an investigation into who leaked these stories to the press, and why. Along with that investigation, I want to see indictments, and I don't care who is nailed. I could give a rip if it's Rockefeller (who seems to be everyone's front-running favorite for said indictment) or if it's Mickey-frelling-Mouse.
These leaks have got to stop, and do so post-haste. We can't prosecute this war effectively if the press is blowing every major classified program we use to fight our enemies. And a message--once and for all--needs to be sent to the agenda, hate-driven press: You have no absolute rights, and when you break the law, there are serious consequences.
Publius II
Now it's my turn. (Ladies first, if present, as I am a gentleman.) Marcie did an excellent job beating Harold Meyerson into the ground with his utterly ridiculous op-ed from yesterday. But today, the Post stepped in it again.
This piece is long--four pages--and I'm not posting the thing up completely. I don't need readers' eyes glazing over as they read this boring pap. I will, however, argue that the president's authority to carry out this operation is inherent under his powers enumerated under the Constitution. Case after case going to the courts have upheld his powers. As a matterof fact, I posted up a column regarding the New York Times "shark-jumping" escapade over the NSA program. John Hinderaker, blogger and lawyer extraordinaire, also posted a reply to the story. But what is insightful are the cases he cites, which are below from his post.
United States v. Clay--The court held that federal statutes prohibiting wiretapping do not "[forbid] he President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest."
United States v. Butenko--The court held that no judicial warrant was necessary where "surveillances ... were 'conducted and maintained solely for the purpose of gathering foreign intelligence information.'”
United States v. Truong--The court sustained the federal government's position, which it summarized as follows:
In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
The court explained why the President has the inherent constitutional authority to order warrantless electronic surveillance:
For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.
Case after case, the courts have upheld this position. The president has the authority to do this. There is no way around it. The courts are not going to overrule a precedent like this because the New York Times, the Washington Post, or the Democrats say so. they aren't the lawyers. They aren't the judges. And they don't make those decisions. The courts have, and they have upheld the president's authority to conduct this sort of surveillance, including those without a warrant.
In Truong, it was specifically explained that "A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations." (Emphasis mine)
The Times and the Post know all about leaks. They call them "whistle-blowers" as if some egregious crime has been committed. However, they are leaks under their legal definition, and both papers may have plenty to answer for should Director Goss have his request for a probe initiated. Neither paper has addressed the above cases which state that the president has the authority, and I'm positive they have not read up on the law involving their culpability in the leaks themselves.
Below is that law, in it's entirety, and I hope the Times and the Post take notes. (Emphasis mine)
§798. Disclosure of Classified Information.
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States 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—
Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
(b) As used in this subsection (a) of this section—The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;The terms “code,” “cipher,” and “cryptographic system” include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.
Now, I know a few people will contend that to bring charges against a news outlet for a leak is a long shot, at best. Not true. The press can't hide behind it's First Amendment rights; those rights aren't absolute. With the advent of rights, comes the responsibility to uphold them. The Times and the Post have not done this. (For those scratching their heads as to why I keep including the Post, remember that they were the ones who released the story of the rendition flights, and the CIA prisons abroad; these, too, were classified programs.)
History in America has shown several occasions where the government has gone after correspondants for their release of sensitive material. The most noted one was the case involving the infamous Pentagon Papers. The correspondants in question were found not guilty; not becasue they weren't, but because the prosecution bungled the case. Morison is the one case that can be pointed to that shows that leaks can be prosecuted, even if they do work for a periodical.
From 1974 to 1984, Morison, a grandson of the eminent historian Samuel Eliot Morison, had been employed as a part-time civilian analyst at the Naval Intelligence Support Center in Maryland. With the permission of his superiors, he also worked part-time as an editor of Jane’s Fighting Ships, the annual reference work that is the standard in its field. In 1984, dissatisfaction with his government position led Morison to pursue full-time employment with Jane’s.
In the course of his job-seeking, Morison had passed along three classified photos, filched from a colleague’s desk, which showed a Soviet nuclear-powered aircraft carrier under construction. They had been taken by the KH-11 satellite system, whose electro-optical digital-imaging capabilities were the first of their kind and a guarded military secret. The photographs, which eventually appeared in Jane’s Defence Weekly, another publication in the Jane’s family, were traced back to Morison. Charged with violations of the Espionage Act, he was tried, convicted, and sentenced to a two-year prison term.
Morison was seen all the way through to conviction, and the conviction was affirmed at every level up to the Supreme Court (which upheld the verdict of the lower courts by declining to hear the case). It would thus seem exceptionally relevant to the current situation.
In appealing his conviction, Morison argued along lines similar to those a newspaper reporter might embrace—namely, that the Espionage Act did not apply to him because he was neither engaged in “classic spying and espionage activity” nor transmitting “national-security secrets to agents of foreign governments with intent to injure the United States.” In rejecting both of these contentions, the appeals court noted that the law applied to “whoever” transmits national-defense information to “a person not entitled to receive it.” The Espionage Act, the court made clear, is not limited to spies or agents of a foreign government, and contains no exemption “in favor of one who leaks to the press.”
My thanks to Gabriel Scheonfeld to do the above research, which shows the press has no hole to hide in. The emperor has no clothes. Should an investigation be launched into the leaks, both papers might have some explaining to do. The Post will definitely have something to say as they are now providing new information about the NSA program, as admitted in their piece today (Linked above).
But what excuse can they give? Freedom of the Press? Not absolute, again. The press is not privy to the classified material within the federal government, and as in Truong we see why. This goes to the "increase the chances of leaks" argument the court put forth. We have seen that the press can't be trusted with national secrets. In 1942, the Chicago Tribune ran a story after the battle of Midway which declared we had broken the Japanese codes. The Tribune did have charges brought against it, but the courts deemed that no damage had been done as the Japanese clearly didn't know we had broken their codes. Again, classified material, leaked to the press, and passed onto the waiting masses. In this day an age, such a leak could have proved deadly to our forces.
The Times and the Post are translated into different languages, and beamed across the globe thanks to the Internet. Our enemies, though 7th Century minded, are quite tech-savvy, and they do know how to read. This is where the leak can kill us. If the press runs such stories, and our enemies get their hands on it, they change their tactics, which sets us back. We can't win this war if we continually have to start from scratch.
The investigations into whether or not the program is justified begins on Monday. Iyman Faris, recently pleading guilty to an attempted attack on the US is appealing--yes already--to the Supreme Court that his Fourth Amendment rights were violated by the federal government because they used the NSA program to nab him. So, we will see this head to the higher courts, for one last round of "whoop the Dems" when the courts reinforce their original rulings. And we may just get an investigation into who leaked these stories to the press, and why. Along with that investigation, I want to see indictments, and I don't care who is nailed. I could give a rip if it's Rockefeller (who seems to be everyone's front-running favorite for said indictment) or if it's Mickey-frelling-Mouse.
These leaks have got to stop, and do so post-haste. We can't prosecute this war effectively if the press is blowing every major classified program we use to fight our enemies. And a message--once and for all--needs to be sent to the agenda, hate-driven press: You have no absolute rights, and when you break the law, there are serious consequences.
Publius II
posted by Syd And Vaughn | 1:09 PM
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