"Pinch," In A Pinch, Plays Sandbox Games

Editor And Publisher has a story today about Arthur "Pinch" Sulzberger, Jr.'s response to the Wall Street Journal for their column slamming the New York Times. The column came on the heels of the revelation of the United States's participation with SWIFT in tracking terrorist's international financial transactions.

After remaining mum for the past week, even as controversy swirled around newspapers' revealing the banking records surveillance program, the Wall Street Journal editoral page weighed in today. Although the Journal published its own story just hours after The New York Times -- which has taken the most heat -- its editorial defended its own action while blasting the Times.

It even included a personal slam at Times' publisher, Arthur O. Sulzberger, Jr. and said the Times did not want to win, but rather obstruct, the war on terror.

Sulzberger responded this afternoon: "I know many of the reporters and editors at The Wall Street Journal and have greater faith in their journalistic excellence than does the Editorial Page of their own paper. I, for one, do not believe they were unaware of the importance of what they were publishing nor oblivious to the impact such a story would have."

Among other things, the editorial criticized the Times for using the Journal as "its ideological wingman" to deflect criticism from the right. And it pointed out that the news and editorial departments are quite separate at the paper and if given the option the editorial side would not have printed the Times' story. Finally, it explained how it got its own story, then slammed the Times for a wide range of sins, claiming that the "current political clamor" is "warning to the press about the path the Times is walking."

Here are a few excerpts.

We recount all this because more than a few commentators have tried to link the Journal and Times at the hip. On the left, the motive is to help shield the Times from political criticism. On the right, the goal is to tar everyone in the "mainstream media." But anyone who understands how publishing decisions are made knows that different newspapers make up their minds differently.

Some argue that the Journal should have still declined to run the antiterror story. However, at no point did Treasury officials tell us not to publish the information. And while Journal editors knew the Times was about to publish the story, Treasury officials did not tell our editors they had urged the Times not to publish. What Journal editors did know is that they had senior government officials providing news they didn't mind seeing in print. If this was a "leak," it was entirely authorized....

The problem with the Times is that millions of Americans no longer believe that its editors would make those calculations in anything close to good faith. We certainly don't. On issue after issue, it has become clear that the Times believes the U.S. is not really at war, and in any case the Bush Administration lacks the legitimacy to wage it.

So, for example, it promulgates a double standard on "leaks," deploring them in the case of Valerie Plame and demanding a special counsel when the leaker was presumably someone in the White House and the journalist a conservative columnist. But then it hails as heroic and public-spirited the leak to the Times itself that revealed the National Security Agency's al Qaeda wiretaps.

Mr. Keller's open letter explaining his decision to expose the Treasury program all but admits that he did so because he doesn't agree with, or believe, the Bush Administration. "Since September 11, 2001, our government has launched broad and secret anti-terror monitoring programs without seeking authorizing legislation and without fully briefing the Congress," he writes, and "some officials who have been involved in these programs have spoken to the Times about their discomfort over the legality of the government's actions and over the adequacy of oversight."

Since the Treasury story broke, as it happens, no one but Congressman Ed Markey and a few cranks have even objected to the program, much less claimed illegality.Perhaps Mr. Keller has been listening to his boss, Times Publisher Arthur Sulzberger Jr., who in a recent commencement address apologized to the graduates because his generation "had seen the horrors and futility of war and smelled the stench of corruption in government.

"Our children, we vowed, would never know that. So, well, sorry. It wasn't supposed to be this way," the publisher continued. "You weren't supposed to be graduating into an America fighting a misbegotten war in a foreign land. You weren't supposed to be graduating into a world where we are still fighting for fundamental human rights," and so on. Forgive us if we conclude that a newspaper led by someone who speaks this way to college seniors has as a major goal not winning the war on terror but obstructing it.

In all of this, Mr. Sulzberger and the Times are reminiscent of a publisher from an earlier era, Colonel Robert McCormick of the Chicago Tribune. In the 1930s and into World War II, the Tribune was implacable in its opposition to FDR and his conduct of the war. During the war itself, his newspaper also exposed secrets, including one story after the victory at Midway in 1942 that essentially disclosed that the U.S. had broken Japanese codes. The government considered, but decided against, prosecuting McCormick's paper under the Espionage Act of 1917.

That was a wise decision, and not only because it would have drawn more attention to the Tribune "scoop." Once a government starts indicting reporters for publishing stories, there will be no drawing any lines against such prosecutions, and we will be well down the road to an Official Secrets Act that will let government dictate coverage.

The current political clamor is nonetheless a warning to the press about the path the Times is walking. Already, its partisan demand for a special counsel in the Plame case has led to a reporter going to jail and to defeats in court over protecting sources. Now the politicians are talking about Espionage Act prosecutions. All of which is cause for the rest of us in the media to recognize, heeding Alexander Bickel, that sometimes all the news is not fit to print.

Mr. Sulzberger does a nice attempt to spin out of any crime his paper committed by bringing up the infamous Chicago Tribune stories of the early 1940s. The difference between those stories, and what the New York Times did is simple, yet obviously veiled in too much simplicity for Mr. Sulzberger to comprehend.

The Tribune ran with those stories because of news tips, and solid investigative reporting. The government decided, then, that the release did not severely harm the war effort then, and that their release was accidental, not intentional.

The same cannot be said of the New York Times. In both the NSA program and the SWIFT program, the Times was specifically asked by the administration to not run the story. This was not a case like the Pentagon Papers where the government tried to prevent them from running with the story, but rather they were asked not to run it.

The E & P staff is right to note that there are some stories that should not be printed. The freedom of the press that is explicit under the First Amendment has been twisted by years of wrangling through the courts, and their decisions have emboldened the press to act in a way that the Framers did not envision. The press, now, feels as though it sits above the law, and can, with impunity, print or post whatever it desires without any fear of recriminations. However, as with all freedoms, there comes a responsibility for your actions. The New York Times, in reckless abandonment, has undertaken the idea that they alone serve as the purveyors of what should and should not be classified.

This, in and of itself, is not only wrong, but it is dangerous. As they have exhibited now--twice in six month's time--they do not understand the gravity of certain stories. They lack the understanding of the programs we are using to undermine our enemies' efforts to hurt this nation. And it is no wonder why a fair majority of the nation looks at the New York Times as a treasonous rag. If "Pinch" is lost on that idea--of why his paper is so reviled by mainstream America--then maybe he ought to come down from that high tower of his, and listen to the gripes of average New Yorkers who seem to remember a bright, sunny day five years ago on a Tuesday morning; a morning shattered by death, destruction, and terror of a magnitude not seen in this nation since 1941. And that morning was the beginning of a crucible this nation has to endure to ensure our freedom, our security, and our way of life.

Marcie

Iranians Caught In Iraq

Al-Reuters has the story that Captain Ed Morrissey took note of this morning:

Iraqi and U.S. troops battled Shi'ite militiamen in a village northeast of Baghdad on Thursday, and witnesses and police said U.S. helicopters bombed orchards to flush out gunmen hiding there.

Iraqi security officials said Iranian fighters had been captured in the fighting, in which a sniper shot dead the commander of an Iraqi quick reaction force and two of his men. They did not say how the Iranians had been identified.

A civilian was also killed and five people were wounded in the clashes, they said.

The U.S. military had no immediate comment. ...

... "We captured a number of militants and were surprised to see that some of them were Iranian fighters," the police intelligence captain said.

An Interior Ministry official, who did not want to be named, also said Iranian gunmen had been captured. Baquba lies 90 km (60 miles) from the Iranian border.

The United States and Britain have accused Shi'ite Iran of meddling in Iraq's affairs and providing military assistance to Iraq's pro-government Shi'ite militias. However, there have been few instances of Iranians actually being captured inside Iraq.

Some Iraqis, particularly Sunnis, are quick to label Shi'ite fighters as Iranian agents. And among the militants are Iraqis who grew up in refugee camps in Iran, speak Iranian-accented Arabic and, in some cases, carry Iranian identity papers.

Police have said Shi'ite fighters in the area belong to the Mehdi Army of radical, Iranian-backed cleric Moqtada al-Sadr. Sadr's movement, which staged two uprisings against occupying troops in 2004, denies being behind sectarian violence.

As Captain Ed notes, it will be easy for the Iraqis to identify these people as Iranians. The difference in dialects is enough to draw attention to them as Iranians speak Farsi, not Arabic, and the Persian dialects are apparent when these people are spoken to. For the longest time we have known that Iran was meddling in Iraq's affairs.

Secretary of Defense Rumsfeld brought this up at a news conference on March 7th of this year. Both General Pace and Secretary Rumsfeld admitted that Iranian Revolutionary Guard had slipped over the border into Iraq, and that they were sending munitions and IEDs into Iraq. Nothing definitive had happened to give us the proof that Iran was involving themselves in this fight until now.

With this information in hand, and these foreign terrorists in custody, this could be the situtation the Iraqis had been hoping for to end the native insurgency in Iraq. With the Shi'ites leading much of that insurgency (and with suspected ties to Moqtada al-Sadr, the Shi'ite militant from Fallujah) the capture of these men might be enough to get the Sunnis to stand up to the insurgency, and hasten the Iraqis along just a tad quicker in their training and deployment, especially to the southern regions of Iraq to prevent any further incursions.

At the same time, this was not good for Iran. At a point where they are about to begin talking with the US over their nuclear program, this is one more ace in the hole for the Bush Administration going into those talks. Not only are we troubled by your nuclear program, but we are not too happy about finding your fighters, your weapons, and your supporters in Iraq. Your very presence in Iraq could be construed as an act of war.

I doubt it will go that far, but that should be the gist in these talks. Iran has to understand that a confrontation with the West is not in their best interests. At the same time, we need to be encouraging the dissident movement in Iran to move on ridding their country of the mullahs there. We cannot do it for them. The risks in an invasion alone, right now, are too great. And I doubt the president wants to start another fight with another country, with only two years left to go in his final term. The risk that a Democrat could make it into the White House, and call for withdrawal, is indeed a worry ont he president's mind. As the majority of the Democratic leadership is already calling for "redeployment" (read: Left-speak for cutting and running), it would only stand to reason that they will not maintain a presence in Iraq, or continue any sort of engagement with Iran.

This revelation needs to be exploited. Show the world that Iran is indeed meddling in Iraqi affairs. If the West is truly intent to deal with Iran, this gives them a perfect springboard with which to drop the hammer on them. They are involving themselves in the sovereign matters of another country. They are interfering with the efforts to make Iraq a stable democracy. And while in their minds it may not be prudent to allow such a country to exist so close to them, it is a decision of the Iraqi people to make life better for themselves. Iran has no say in it.

Marcie

House Condemns The Media, And I Ask "Why?"

From the WaPo for this morning's edition:

Newspapers have criticized politicians for decades, but House Republicans turned the tables yesterday. Over most Democrats' objections, the House voted to condemn the news media's disclosure of a secret program that monitors international bank transactions, endorsing President Bush's assertion that major newspapers have acted disgracefully and undermined vital anti-terrorism efforts.

The GOP-crafted resolution, approved 227 to 183, also condemned the unidentified sources who leaked information of the program. It said the House "expects the cooperation of all news media organizations" in protecting the government's capability "to identify, disrupt, and capture terrorists."

The House vote was the latest volley in a Republican campaign accusing the New York Times and other news outlets of endangering national security by disclosing classified programs, including the warrantless surveillance of Americans' phone calls and the collection of phone data from U.S. residences and businesses. The resolution forced Democrats -- who were allowed to offer no amendments or substitutes -- either to side with language that strongly defended Bush's controversial surveillance initiatives or to appear to be defending news outlets accused of aiding terrorists.

If publication of the bank-monitoring program goes unpunished, "What won't be leaked, and what won't be published?" asked Rep. David Dreier (R-Calif.) during the debate.

But Rep. Alcee L. Hastings (D-Fla.) chastised the Republicans. "You know better than to seek to amend the First Amendment," which protects a free press, he said. He noted that Republicans have vilified the Times, which has a liberal editorial page, but barely mentioned the Wall Street Journal, whose editorial page is conservative.

Last week, the Times, the Journal and the Los Angeles Times reported that the program bypassed traditional banking privacy protections in order to track vast numbers of international money transfers in a bid to spot terrorist funding activities. The Washington Post quickly matched the reports, and all four papers had extensive articles on June 23.

The House resolution did not name any publication, and sources said it was milder in its criticisms than some GOP members had wanted.

The resolution, sponsored by Rep. Michael G. Oxley (R-Ohio), said that "the disclosure of the Terrorist Finance Tracking Program has unnecessarily complicated efforts by the United States Government to prosecute the war on terror and may have placed the lives of Americans in danger both at home and in many regions of the world." It "condemns the unauthorized disclosure of classified information by those persons responsible and expresses concern that the disclosure may endanger the lives of American citizens."

Rep. Maurice D. Hinchey (D-N.Y.) said the resolution "attempts to intimidate the press and strengthen the hands of this despotic administration, which continues to violate the law. . . . Freedom of the press is essential to a functioning democracy."

But Rep. Peter T. King (R-N.Y.) said the New York Times reporters and editors who handled the banking story "are co-conspirators with the leakers," and should be hauled before a grand jury and forced to name their sources. If there is another terrorist attack on the United States, King said, "the blood will be on their hands."

In the Senate, John Cornyn (R-Tex.) introduced a similar resolution "condemning the damaging leaks and subsequent publication of vital national security information about the Terrorist Finance Tracking Program" and the National Security Agency's warrantless wiretaps of Americans' international phone calls and e-mails. It was unclear if or when the Senate would take up the measure.

Rep. J.D. Hayworth (R-Ariz.) continued to gather signatures on a letter urging House leaders to revoke the credentials that allow New York Times reporters to move about the Capitol.

The House resolution mentions nothing about the New York Times. It is the WaPo identifying the New York Times in this story. Rep. Dreier, Rep. Hayworth, Rep. King, and Rep. Frank all mentioned the New York Times by name in the floor debate, but there is nary a word regarding either Times paper in the resolution. The House caved in, and refused to call them out; to call them on the carpet for their idiotically obtuse ideas regarding what they should and should not divulge to the public. They have, essentially, sacrificed our security for silver and slander. But the House refuses to stand up and state that. They would rather hide behind flowery words, and pat themselves on the back for a job well done. And we should all be happy because, after all, they cared enough to do something.

What was that something, again? It seems that "it" has slipped my mind.

God forbid we ask them to be serious ONCE. When it really matters. The necessity for the government to come out and state--on the record--that the New York Times endangered our national security by disclosing a classified program to track our enemies is imperative. Furthermore, Attorney General Gonzales needs to instruct the Justice Department to subpoena both authors, and the editor who ultimately approved of their story. Get them on the stand, and compel them to reveal their source.

This issue goes beyond the Times simply blowing an operation. This goes to plugging this leak, permanently. And sending a clear, concise message that leakers will not be tolerated int he government--whether it is a Republican or Democrat--and there will be repercussions. If any of the times trio refuses to cooperate, then they can go the martyr's route to jail like Judith Miller did. I would personally like to see Pinch there, but that is wholly unrealistic.

And if they further refuse to cooperate, there is always the route of prosecution. They still did break the law. THAT is why so many people are outraged. But to see the House lose its spine when the issue matters--when the message needs to be conveyed that revealing secrets in a time of war is wrong and illegal--that is sickening. After seeing the initial reaction from Congress the day this story ran, I actually had a bit of confidence in the GOP for doing what was right, when it was right, without any sort of prompting from the base.

I feel as though we could be pointing a gun at them, and they would still cave in to the Times. No amount of prompting seems to be sinking in. So, once again, we are back to square one. It seems to me that every time the GOP gets close to pounding those last few nails in the coffin of the Left they whack their thumb, and let the vampire loose again.

Marcie

Jihad! Fun For The Whole Family!

Captain Ed Morrissey drops this little tip in our laps tonight. It seems that some of the Ontario 12 had an interesting family life according to the Globe and Mail:

When it came time to write up the premarital agreement between Zakaria Amara and Nada Farooq, Ms. Farooq briefly considered adding a clause that would allow her to ask for a divorce.

She said that Mr. Amara (now accused of being a leader of the alleged terror plot that led to the arrests of 17 Muslim men early this month) had to aspire to take part in jihad.

"[And] if he ever refuses a clear opportunity to leave for jihad, then i want the choice of divorce," she wrote in one of more than 6,000 Internet postings uncovered by The Globe and Mail.

Wives of four of the central figures arrested last month were among the most active on the website, sharing, among other things, their passion for holy war, disgust at virtually every aspect of non-Muslim society and a hatred of Canada. The posts were made on personal blogs belonging to both Mr. Amara and Ms. Farooq, as well as a semi-private forum founded by Ms. Farooq where dozens of teens in the Meadowvale Secondary School area chatted. The vast majority of the posts were made over a period of about 20 months, mostly in 2004, and the majority of those were made by the group's female members.

The tightly knit group of women who chatted with each other includes Mariya (the wife of alleged leader Fahim Ahmad), Nada (the wife of Mr. Amara, the alleged right-hand man) Nada's sister Rana (wife of suspect Ahmad Ghany), as well as Cheryfa MacAulay Jamal (the Muslim convert from Cape Breton, N.S. who married the oldest suspect, 43-year-old Qayyum Abdul Jamal). The women's husbands are part of a core group of seven charged with the most severe crimes -- plotting to detonate truck bombs against the Toronto Stock Exchange, a Canadian Forces target, and the Toronto offices of the Canadian Security Intelligence Service.

The women were bound by the same social, political and ideological aims. They organized "sisters-only" swimming days and held fundraisers for the notorious al-Qaeda-linked Khadr family. With the exception of the occasional Urdu or Arabic word or phrase, their posts are exclusively in English.
After their husbands were arrested, most of the women refused to tell their stories to the media; reached at her home in Mississauga, Ms. Farooq would not comment on her posts.

But in the years leading up to the arrests, they shared their stories with one another.

She knows it freaks her husband out just thinking about it, but 18-year-old Nada Farooq doesn't care: She wants a baby. It is mid-April, 2004, and the two have been married for less than a year. In the end, the jihad clause was not included in a prenuptial agreement.

Like many students at Meadowvale Secondary School, Zakaria Amara is busy worrying about final exams and what, if any, university to go to. But Ms. Farooq -- the Karachi-born daughter of a pharmacist who now hands out prescription medicine to soldiers at the Canadian Forces Base in Wainwright, Alta. -- has already done a fair bit of daydreaming about what it would be like to have a child. She even has a name picked. If she has a boy, she wants to name him Khattab, after the commander of the mujahedeen in Chechnya who battled Moscow until he was assassinated in 2002.

"And i pray to Allah my sons follow his footsteps Ameeen [Amen]," she writes at the on-line forum she founded for Muslim teens in Mississauga's Meadowvale area. Her avatar -- an on-line symbol used to indicate personality -- is a picture of the Koran and a rifle.

(All postings in this story have been rendered as they appeared on-line.)

There is nothing casual about Ms. Farooq's interpretation of Islam. She reiterates the belief that jihad is the "sixth pillar" of the religion, and her on-line postings are decidedly interested in the violent kind. In the forum titled "Terrorism and killing civilians," she writes a detailed point-by-point explanation of why the Taliban is destined to emerge victorious in Afghanistan.

Virtually every other government on the planet, however, she only has disdain for.

These were the same women weeping for their husbands when they were taken into custody. These same women stated that there was no way their husbands could be involved in such a thing. And yet, according to the Globe and Mail, these women has espoused what they really believe; a 180-degree departure from what they were saying less than a month ago.

So, for anyone out there still clueless (and this goes double for the monkeys in Congress) the practitioners of this strain of Islam include women and children. Years and years of oppressive indoctrination does this to people. They fully believe in their war. They feel they are in one of the final holy wars against the infidel. Men, women, children--it does not matter who is doing it. We have seen women suicide bombers in Iraq, Afghanistan, and even Israel. They can still be 80% the jihadist their husband is.

It is high time that everyone woke up to this fact. And again, that goes for Congress, too. They need to keep that in mind when addressing issues regarding this war.

Marcie

I'd Like To Address Two Issues To The Senate

First, Marcie has returned back to the NY Times debate by showing that those in the Congress seem to be doing a pretty good imitation of the Cowardly Lion before the Great Oz. The Senate can resolve this problem by simply amending what the House sends to them. If the House resolution to condemn the NY Times and the LA Times without naming either paper, then a senator should amend the resolution to insert the names.

Send a message to the Senate and call your senators to demand that one of them do it. 202-224-3121. Tell them to send a message to both of the Times cage-liners that this is unacceptable.

Secondly, on the heels of Hamdan, the Senate needs to get on legislation giving the president the tribunals he needs to use on the detainees at Gitmo. Both Houses of Congress need to jump on this issue immediately. A message needs to be sent to the Supreme Court that this is an Article I and Article II issue, not an Article III issue. The Congress has, as by Article I, Section 8, the power "To constitute Tribunals inferior to the supreme Court." The president needs a definitive stance, from Congress. That's part of Justice Kennedy's gripe. His gripe goes further, and I'm not one to bore our readers. Go read it. .

This is a case revolving around separation of powers. The courts have nothing to do with this case, and that message needs to be dropped in the Supreme Court's lap.

Publius II

Quit Pretending, You Cowards: The Times Rules The Congress.

Let me state, at the start, that this is not a broad-sweeping indictment of the Congress. But, I do condemn the congress for not taking a strong, determined stand against both the New York Times and the LA Times for running news stories exposing the SWIFT program, and our participation within it to track terrorists.

The House resolution was weak, and failed to name either paper by name. The same goes for the Senate. The dogs in the Congress are cowering from both papers, who are, as I type, circling the wagons. And they are doing that because of the public's outrage, not Congress's. Strong words have been spoken by many in Congress, including Representatives JD Hayworth (who is calling for their press credentials to be pulled) and Pete King (who is delivering a letter to Attorney General Gonzales requesting action). Even Barney Frank has spoken up out against the Times. But there was nothing in either resolution.

A toothless lion that roars is still toothless.

Allow me a chance to give a couple examples of some people that have no problem with expressing their outrage:

PowerLine has a Marine Lieutenant Colonel that weighs in on why he is outraged:

It's rather sad and depressing that members of Congress will vote to send troops into battle but they lack the courage to take a principled stand against the NYT and other media outlets that actively undermine our national security.

From The Reporter via Emperor Hewittus:

As a 22-year veteran of military service and someone who has held a top-secret security clearance, I am outraged about these acts by partisan critics of the president who are using their placement and access within the government to undermine the war on terror and place all of us at greater risk.

These individuals need to be identified and brought up on charges of treason for leaking classified information to the media. I urge folks to contact their nationally elected represenatives and request that these crimes be investigated.

Michelle Malkin reminds us here, here, here, here, here, and here of the outrage that has been unleashed on the New York Times.

Every ounce of this anger is more than justified. And if the Justice Department will not entertain the prosecution of ANYONE involved in this story, then at the very least a grand jury has to be convened, subpoenas issued, and testimony compelled. Either we are going to take a stand against media outlets that publish classified material, or we want who gave them this story. It does not matter much to me which avenue the Times chooses. Mr. Lichtblau, Mr. Risen, and Mr. Keller should be spending some time in jail considering the revelation of their sources. They do not seem to have a problem with blabbing something important ot he nation. Let us see if they are willing to have a bit of self-sacrifice on their own behalf.

Marcie

More Thoughts On Hamdan

Today, as I reported this morning, the Supreme Court issued its ruling in Hamdan v. Rumsfeld. Hamdan was a body guard to Osama bin Laden, and hsi driver when hostilities started in Afghanistan in 2001. He was caught as an enemy combatant on the battlefield, and was sent to Gitmo as a detainee. He appealed his detention through the courts (thanks greatly to the decisions in Hamdi and Rasul), and the verdict today, in my humble opinion, was a terrible interpretation of the facts regarding this case.

I've read the whole decision now, including three brilliantly worded dissents from Justices Thomas, Alito, and Scalia. Justice Thomas, for the first time since he arrived on the high court, read his dissent clearly for the court. Justice Thomas is correct. This was, in short, a separation of powers case.

Under Article II, the president is the sole executive officer of the nation. He is it's leaders, and it's foreign policy face. In the event that war breaks out, he is the Commander-in-Chief of the military. Congress, in 2001, granted the president the power to wage war against al Qaeda in Afghanistan. In the authorization for the use of military force, they stated that the president had the authority to prosecute this war. Part of that prosecution involves trying these detainees in military tribunals. That is explicitly under the president's powers to wage war. The tribunals, under the auspice of the military, fall into the executive branch's powers.

The Supreme Court opted to limit the scope of that power today. In tying the president's hands so that he can't execute the tribunals when they're needed, they have removed powers from him--from the office of the president--that have been part of the executive branch since the founding of the nation. Now, if the president wishes to move forward on such trials, he has to go to Congress and play a "Mother, may I" game with them. In addition, the people involved in this case are now able to follow the footsteps of Moussaoui; they will be tried in our criminal justice system.

That's a mistake, and a serious one. As WE observed after the Moussaoui decision, it's painfully clear that the people of America can't handle the gravity of such a case. Marty Lederman of SCOTUS Blog has some interesting thoughts regarding this case. As a matter of fact, the whole crew over at SCOTUS Blog had thoughts about this case all day, and their perspective in Hamdan is a welcome breath of fresh air. Far too many on talk radio today that have no law degrees, and no real clue about the jurisprudence in question, have literally been talking out of their @$$e$. It would also help if people actually read the decision itself to better understand exactly what the Supreme Court did today.

I maintain what I stated this morning. This decision was a travesty.

Publius II

ADDENDUM: 5:26 p.m. Arizona Time

Since Thomas' initial post this morning, and his follow-up this evening, keeps bringing up the Geneva Convention. True, the United States is a signatory to the convention. They are bound by it, but only to a point.

The convention applies to war between two signatories. When one nation, who is a signatory, is engaged in military action against another that is not a signatory, the convention is moot. It does not technically apply. We are the only nation on the face of the planet that does its best to:

1) Abide by the rules of the convention, and

2) Treat prisoners as best we can.

Anyone who proclaims that the prisoners at the Guantanamo Bay detention facility is either a blatant liar, or a presumptuous twit. They have received far better treatment from the United States than any other coalition member.

And to the extremists out there that are fuming, ranting, and raving over this decision you really need to clam down. Yes, the decision was incorrect. Thomas is correct, as Justice Thomas pointed out, in the end this is a separation of powers issue. So, for the president to accomplish what he wants with the remaining detainees (and no, the decision does not release the animals from their cages) he has to go to Congress and get them to sign off on special tribunals for these people. The president should not have to do that. He is the Commander-in-Chief, and this nation is at war. As past presidents have convened these tribunals, and this president should also have this privilege.

Marcie

BREAKING NEWS: USSC Deals Blow To Administration Over Hamdan

This comes from Yahoo News:

The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.

The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001.

Two years ago, the court rejected Bush's claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this follow-up case, the justices focused solely on the issue of trials for some of the men.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court's liberal members in ruling against the Bush administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

Thursday's ruling overturned that decision.

Bush spokesman Tony Snow said the White House would have no comment until lawyers had had a chance to review the decision. Officials at the Pentagon and Justice Department were planning to issue statements later in the day.

The administration had hinted in recent weeks that it was prepared for the court to set back its plans for trying Guantanamo detainees.

The president also has told reporters, "I'd like to close Guantanamo." But he added, "I also recognize that we're holding some people that are darn dangerous."

The court's ruling says nothing about whether the prison should be shut down, dealing only with plans to put detainees on trial.

"Trial by military commission raises separation-of-powers concerns of the highest order," Kennedy wrote in his opinion. ...

Justice Clarence Thomas wrote a strongly worded dissent, saying the court's decision would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

The court's willingness, Thomas said, "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous."

Justices Antonin Scalia and Samuel Alito also filed dissents.

In his own opinion, Justice Stephen Breyer said, "Congress has not issued the executive a 'blank check.'"

"Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary," Breyer wrote.

As this decision is only about 30 minutes old, I haven't had a chance to read it in its entirety. I've skimmed it. I'll be giving it a good once over later today, and I'll probably have more on it either tonight or early tomorrow. I agree with Justice Thomas that the president--as commander in chief--should be allowed a level of leeway when it comes to things of this nature. The military is, after all, under his control, not Congress's. Congress doesn't convene military tribunals, the military does. Justice Kennedy is correct that this comes down to a separation of powers, and it's clear he's missing the overall point.

The point is simple: The executive wages and controls the conduct of the war. If there are prisoners taken on the battlefield, then they should be subject to military tribunals. The president can call for them, and the military can convene them. Congress, technically, has no say in this matter. They have two jobs during this war: Oversight committees work to make sure things go smoothly, and to fund the war. That's it. That's the extent of their job. And to correct Justice Breyer (fool that he is), it was NEVER insinuated that Congress gave the president any sort of 'blank check' in this war. To the contrary, they have been nothing but a pain in his backside for much of the war. That hardly constitutes a 'blank check.'

Lastly, the court also cited the Geneva Convention. I'm scratching my head over this one because under the Fourth Geneva Convention, the status of prisoners of war were clearly laid out. Based on that definition, these men are clearly not POWs, yet they receive treatment that is equal to that status. I can't understand why the USSC fell back on the Geneva Convention rather than maintaining the powers of the executive branch during a time of war. (I'm sure I'll find out answers to many of our impending questions when I read through the decision.)

Publius II

The Natives Have Become Restless

The Israelis are back in Gaza. We predicted this would happen, and after ten months of Kassam rockets being dropped on them, they had enough of the Palestinians. Now they are taking the fight back to those who have chosen to simply continue fighting them rather than setting a stable, secure government. And when the elections showed that Hamas had won there, we knew it would only be a matter of time before Israel's hand would be forced.

Hamas knows that it cannot stand up to the Israeli military. And you know that things are not going well when the Palestinians blow a hole in the wall separating Egypt from Gaza.

Palestinian militants detonated a land mine near the border with Egypt on Thursday, blowing open a large hole in a wall near the border, witnesses and officials said.

Palestinian security personnel formed a human cordon to prevent people from pushing through the gaping hole, and hurdling a second, border wall less than 100 meters (yards) away, witnesses said.

On the Egyptian side, soldiers gathered to prevent people from breaching the Palestinian cordon and officials imposed a curfew near the blast site, said Ahmed el-Masri, director of police in the Egyptian border town of Rafah.

El-Masri said the hole was about three meters (nine-feet) wide.

Dozens of Palestinians streamed to the area after the mine exploded.

Medical officials said two police officers standing near the wall were injured by the explosion. No further details were immediately available.

Like rats leaving a sinking ship, the terrorists want out before Israel finishes them off. Israel has the right to defend itself against these animals, and I would prefer to see Hamas stand and fight. They wanted this? They got it, in spades. The bridges are blown, the one main power plant is gone. A water treatment plant was blown to Hell. This is it. It is all over for Hamas. They opted to choose the sword over the olive branch, and the piper has come calling.

Marcie

The New York Times: Not The "Defender" Of Liberty

Much ado has been made regarding the New York Times recently. It has a lot to do with the fact that they have now published two news stories revealing clandestine operation on behalf of the federal government used suring a time of war. The first--the NSA terrorist surveillance program--was revealed in December of last year. That program was tracking the phone calls and phone records of al Qaeda terrorists in the United States. It also tracked their e-mails, and their participation in chats/message boards on Islamic websites supporting our enemies. The New York Times sounded the alarm on a program that the courts--the FISA court of review--had already addressed. In re: Sealed Case is the most definitive case we have regarding the collection of intelligence, under executive branch powers. The president is the "Commander-in-Chief" of the armed services. As the NSA is a part of the intelligence community, including military intelligence, and falls under that provision of the Constitution. So, the New York Times' assertions that this program was illegal is completely unfounded.

Last Friday, the New York Times did it again. The revealed the existence of another classified program. That one, under the auspice of SWIFT (Society for Worldwide Interbank Financial Telecommunication) tracked the financial and banking records of suspected al Qaeda individuals. This program was legal, specifically targeted our enemy, and provided us with yet another weapon against such an elusive adversary. However, the New York Times, and the LA Times, saw fit to disclose this program. In doing so, they basically closed this operation down. Our enemy is aware of this program now, and like they did with the NSA program's revelation, there is no doubt they are changing their operational procedures.

The question remains: What to do with this recent breach of national security? The kids--Marcie and Thomas--have done a good job of presenting the right side of the argument. The New York Times, despite pleas from the federal government, ran the story anyway. This is the seocnd breach, and as far as we, at The Asylum are concerned, this is the last straw. It is time to prosecute those responsible for this revelation; no ifs, ands, or buts about it.

18 USC 793 reads:

(a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense; or

(b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or

(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,

(1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or

(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

18 USC 798 reads:

(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 under this title or imprisoned not more than ten years, or both.

Now, the kids have caught all shades of hell over their stance. Their critics have e-mailed them telling them that there is no way to possibly prosecute those "presumed guilty" on this issue. I beg to differ. The New York Times reporters--James Risen and Eric Lichtblau--and the New York Times Executive Editor--Bill Keller--are quite prosecutable. The First Amendment does not, in any way, shape, or form, protec them from prosecution for either infraction of the law, stated above. They can be charged and prosecuted. The caveat being, of course, that if they are willing to hand over their source we might be willing to reduce, or even overlook, their prosecution and sentencing. Were I the one prosecuting this case, I could get a conviction with my eyes closed.

And that is another subject I would like to address. Further critics of the kids who proclaim this is treason. It isn't, and I can explain why .......

The New York Times has shown, produced, or uttered nothing that dictates intent. Their "intent" was not to inform our enemies of this program, but rather to hurt the administration with its revelation. Their sole goal was to hurt President Bush and the administration. That is political in nature, and virtually protected by the First Amendment precedents set. However, their "freedom" ends the moment they choose to reproduce classified material on their news pages; and not just any page, but the front page--exposed for all the world to see. The New York Times may concede stupidity when the question comes up regarding whether our enemies can read their paper, but they can't claim ignorance in the revealing of either program.

The New York Times reporters and editor can face prosecution, and they should. Nothing will stop the New York Times from ever running stories like this again like a finely-tuned, well-thought-out, and supremely-executed prosecution can. If they are not held to account for their actions, they will continue to publish stories like this.

And the next one could lead to the deaths of our soldiers. I don't wish to see that. I'd prefer to see someone punished for their crime in an effort to stop it from happening again. Thomas and Marcie are clearly on the right track. Instead of criticizing them, maybe a few people ought to try thinking throught this rather than reacting with the emotionally-driven response I have seen in forwarded e-mails.

Mistress Pundit

Choosing Suicide Over Peace

For ten months, the Israelis have been under rocket attacks from Gaza. The "cease-fire" that existed never really existed, even despite their pullout. Now, there are repercussions for this, and the other transgressions by Hamas and the Palestinians.

The witnesses said the vehicles moved into an unpopulated area of northern Gaza, the day after forces rolled into southern Gaza in an operation aimed at forcing militants to release a soldier captured Sunday.

Troops were set from Wednesday evening to pour into the northern Gaza Strip in an operation intended to place pressure on the Palestinian population.

Just before tanks rolled in early Thursday, Palestinian witnesses said an Israel Air Force plane fired a missile at the Islamic University in Gaza City. No one was hurt, but university officials decided to evacuate all 60 guards from the complex after the attack. The IDF said the missile hit an open field next to the university.

Defense Minister Amir Peretz on Wednesday evening authorized the IDF to begin operations in northern Gaza.

The IDF distributed flyers warning residents of the northern Gaza village of Beit Hanun, from where Qassam rocket crews have been shooting at Sderot, to leave their homes as the army will begin targeting populated areas in response to the Qassam fire.

Flyers were also distributed to residents of the Shajaiyeh neighborhood of Gaza City. The IDF said the shelling would not be conducted by artillery units but will rather be precision fire from land and air.

Senior military sources said they expect thousands of Beit Hanun residents to begin leaving their homes en masse Thursday morning.Dozens of Palestinian militants - armed with grenades and automatic weapons - took up positions near sandpiles and barricades in anticipation of an IDF ground operation.Palestinians fired four Qassam rockets at Israel on Wednesday morning and two more later in the day. There were no casualties.

Meanwhile, IDF tanks and troops before dawn Wednesday, encountering little resistance from Palestinians, in a bid to pressure Palestinian militants into releasing an IDF soldier seized Sunday in an attack on a military position near the Gaza border.

Thomas and I are on record--right HERE--that the Israelis would have to go back into Gaza before a year was up. That time, it seems, has come. The Israelis have as much a right to defend themselves as we do. I suggest the Western nations of the world allow them to do so, and be done with this menace as soon as is absolutely possible. Holding them back only perpetuates the problem. Their problem is with Hamas, and the militants that are firing rockets and kidnapping Israeli citizens.

If a war is what the Palestinians wanted, then I believe death has just been delivered to their doorstep.

Marcie

Is The House Serious?

I saw this on Hugh's site. It's the text of the House's condemnation of the New York Times and the LA Times for revealing the terrorist financial tracking program.

There's just one teeny-tiny problem with it.

It doesn't mention either paper by name.

Is the House serious, or do they think this is a game, and we're all retards out here. Two major United States news outlets just revealed a classified government program; a weapon in our arsenal AGAINST al Qaeda, and the best the House can muster is this piece of pap?

Get on the phone to your senators, and tell them to put forth a condemnation that names both papers, and urge them to convene hearings on this. Urge the Justice Department to do the right thing, and prosecute Eric Lichtblau, James Risen, and Bill Keller. WE can't let this slide this time. If we do, there will be no limit to what the Times--either one--can and will do.

It's clear that they don't like this administration, and they don't like this war, and they're willing to do what they can to end either one. For them, they are so blinded by this hate that they're willing to do things like this. This wasn't tolerated during any of the wars of the 20th Century, and it shouldn't even be considered as "OK" for this war. Nations that can't keep secrets from their enemies don't last long, and both papers did a grave disservice to the nation with their reckless, irresponsible reporting.

Call your representatives. Call your senators. Make your voice be heard, and tell them to quit playing games with our national security. Tell them either you want heads on the wall from the papers, or the leaker's head on the wall.

202-224-3121

Publius II

The Senate Dawdles, And the New York Times Continues To Skate

All right. I saw this post on Hugh Hewitt's site this afternoon, and I am perplexed. Maybe you can figure it out by reading what he wrote:

Look, the flag amendment presents an interesting debate, but the national security does not turn on its fate.

Last week's Senate resolution and the House resolution the week before mattered a great deal, but their effect is being reduced by inaction by the House and Senate on the real damage done by the New York Times and Los Angeles Times.

So, where's the leadership, the draft resolutions, the debate and the vote? What's the plan? A letter from Chairman Roberts is great, but it isn't the First Branch speaking to the Fourth, which is what needs to happen. Soon.

The flag amendment? For four days the New York Times has been the center of a storm of controversy. That storm rages on because not only did they reveal a national security secret, then excuse themselves in the favor of some idea of the "public's interest," but now they claim that there were in a footrace with the LA Times to get this story out first:

"I don't think we could reasonably be accused of moving too quickly," he said. "We waited so long that the competition caught up to us." This comment referred to the Los Angeles Times' posting a story about the bank records program on its Web site last night.

That comment comes from Eric Lichtblau, one of the wirters involved with this new New York Times story, and one of the two writers involved in the revelation of the NSA surveillance program back in December. He admits that they had waited too long, and were about to be scooped. So, rather than heed the arguments of the administration, they rushed in for the next Pulitzer Prize. Nice to see the New York Times is so cheap; they will do so well in the red-light district of many cities.

But I would like to know why Congress has not responded to this, yet? They can pass a non-binding resolution that condemns this sort of behavior, and they can follow in the footsteps of Rep. Pete King and Sen. Pat Roberts. They can question authorities in the Executive Branch about the possible damage, and recriminations the times might face. There are people who still claim, albeit in an uneducated fashion, that the Times committed no crime. I beg to differ. In addition to that, we still have the Espionage Act that can be referenced. The Times committed a crime.

We--Thomas and I--would prefer to see the reporters and editor to serve the maximum amount of time, as proscribed by both 793 and 798 (linked above). That would be about twenty years in jail. However, I am sure the Justice Department might be willing to plea the charges down in exchange for the leakers involved in these two cases particularly. I cannot speak intelligently about that possibility; I offer only speculation. However, as the Times reporters and Bill Keller are willing to do what is necessary to save their own skin, they might be open to a plea deal.

And for Congress--the Senate, in particular--to waste its time with such trivialities--is a disgrace. The nation's national security has been breached, and all they can do is debate whether or not the flag needs to be protected. No offense, but I love the flag. I want it protected because it sickens me everytime I see a moonbat decide to have a weenie roast using Old Glory. However, national security comes first, and as long as the Times continues to skate on this, and other past transgressions, they will be emboldened to do it again. The government did not move decisively over the NSA revelation, and the Times likely felt that no one cared. (It is a possibility based on their spiraling subscriptions, especially on the heels of this revelation.) But both programs were classified. There are laws on the books protecting those programs. their knowledge is kept secret for a reason.

Congress should be acting. The Justice Department, I am sure, will be acting. (When questioned last Friday, Attorney General Gonzales refused to speak about the subject; an investigation could already be underway, or continuing from last December over the NSA program, and this is now included in that investigation. I would like to note that as Mr. Risen and Mr. Lichtblau have now blown two clandestine operations, it is highly likely that their sources for both are not different, but rather the same individual(s). ) I join Thomas in telling our readers to call your congressmen, and emphasize to them to condemn the Times for this heinous disregard for the security of the nation during a time of war.

Marcie

Pat Roberts Calls Out John Negroponte

(HT: Captain Ed)

June 27, 2006 The Honorable John D. Negroponte Director of National Intelligence Washington, D.C. 20511

Dear Mr. Director:

Unauthorized disclosures of classified information continue to threaten our national security – exposing our sensitive intelligence sources and methods to our enemies. Numerous, recent unauthorized disclosures of sensitive intelligence programs have directly threatened important efforts in the war against terrorism. Whether the President’s Terrorist Surveillance Program or the Department of Treasury’s effort to track terrorist financing, we have been unable to persuade the media to act responsibly and protect the means by which we protect this nation.

To gain a better understanding of the damage caused by unauthorized disclosures of this type, I ask that you perform an assessment of the damage caused by the unauthorized disclosure of some of our most sensitive intelligence programs. While your assessment may range beyond the President’s Terrorist Surveillance Program and Treasury’s Terrorist Finance Tracking Program, I am particularly interested in the damage attributable to these two unauthorized disclosures.

Sincerely,
Pat Roberts
Chairman

This letter is a joke. It's a nice idea. A sweet sentiment, but it's a joke, nonetheless. Don't get me wrong here. Calling for Negroponte to do an assessment of the possible damage inflicted by this and other leaks is a smart move. However with Negroponte acting as he has been over the last few months (he was the one dragging his feet on the release of the Saddam documents, and it's still out there that he helped Porter Goss to the door) I'm not too confident in whatever sort of assessment he may hand down.

Secondly, I'd like to know why Sen. Roberts isn't convening hearings over this. Congress can call all sorts of hearings over the most infinitessimal issues, but when it comes to national security Congress puts that on the back burner? I think not. Call your reps: 202-224-3121 and demand that Congress convene hearings about this. Contact Justice, and let them know you're not happy with a mainstream media outlet revealing national security secrets. This is a crime, and it demands attention. It doesn't demand assessments. It doesn't demand letters.

It demands that our elected representatives get off their collective @$$es and do something. Hugh Hewitt agrees that congress isn't doing it's job right now. While a flag-burning amendment may be worthy of some notice, the war comes first. Remember the platform:

Win the War
Confirm the Judges
Control the Spending
Cut the Taxes
Control the Border

There's a good reason why the war is issue number one. If it's not won, then nothing else on that list amounts to a hill of beans. We must focus on winning the war, and with the New York Times and LA times blowing national security secrets wide open on their front pages--and doing so unchallenged for the laws they break--then we have no chance to win this war. Those nutters will print whatever they want, whenever they want without any fear of prosecution for hurting this nation by revealing clandestine operations.

Tell the Senate and the House to get off it's ass. Tell the Justice Department to begin investigations. DON'T let the times get away with this.

Publius II

Addressing Freedom Of The Press

On the heels of the New York Times treasonous decisions to run stories regarding our classified national security secrets, I have noted that many in the MSM are starting to fall back on the old "freedom of the press" argument that supposedly stands up for their right to print whatever they desire without fear of recriminations. This morning, The InstaPundit--noted law professor Glenn Reynolds--took Bill Keller to task over his arrogant statement over the weekend:

Some of the incoming mail quotes the angry words of conservative bloggers and TV or radio pundits who say that drawing attention to the government's anti-terror measures is unpatriotic and dangerous. (I could ask, if that's the case, why they are drawing so much attention to the story themselves by yelling about it on the airwaves and the Internet.)

Please note that he is coming out against the people who are basically telling the New York Times to keep their mouths shut. Then he has the audacity to tunr this around on us. Sort of a pseudo-blame-game of "if you people would shut up, this wouldn't be an issue." This is his way of trying to invoke some sort of "imperial" press privilege over his detractors. The Times was the paper who broke this story, and they promptly followed it up by releasing information from a classified briefing in the Pentagon about troop levels in Iraq. The Times, like most MSM outlets, continue to cite their protections under the First Amendment. We did not reveal this information. The Times did, and their idea that if we would just keep quiet about it, and it will all go away, is bravo-sierra. Even today's Times has a story regarding the administration's reaction to having its secrets revealed. And we are now on day Four since the times decided to run with this story.

Professor Reynolds does an excellent job of explaining what "freedom of the press" means in his response to Bill Keller:

A deeper error is Keller's characterization of freedom of the press as an institutional privilege, an error that is a manifestation of the hubris that has marked the NYT of late. Keller writes: "It's an unusual and powerful thing, this freedom that our founders gave to the press. . . . The power that has been given us is not something to be taken lightly."

The founders gave freedom of the press to the people, they didn't give freedom to the press. Keller positions himself as some sort of Constitutional High Priest, when in fact the "freedom of the press" the Framers described was also called "freedom in the use of the press." It's the freedom to publish, a freedom that belongs to everyone in equal portions, not a special privilege for the media industry.

And he is correct. For the press to believe that only this right is accessible to them alone is a serious misinterpretation of the First Amendment. The Bill of Rights applies to all citizens, and were the Framers to have made an exclusive right--accessible to only a few--that would have been properly enumerated in the Constitution. No such provisions were made, and therefore Mr. Keller's argument is moot, and has less legs to stand on than the Democrat Party this election cycle.

Were Mr. Keller's assertions true, then we bloggers would have no rights within the news cycles to print, opine, or disseminate anything. We would not have the protections recently extended to blogs in regard to their "press credential." We report the news like any other news source, and we do not hide behind "freedom of the press" when we draw criticism. And that applies to when the government levies that critique. Anyone remember the Swift Boat Vets during the 2004 campaign? While they were a 527, and capable of utilizing their free speech as anyone else could, it was the blogs that moved them from the back of the bus--sent their by the MSM--to the forefront of the debate.

And what did the president and his allies do when questioned about them? They condemned the actions of the Swifties. By default, their criticism landed on our shoulders because we were, in essence, helping the Swifties get their message out. In fact there was a statement made a couple of months ago from Senator Trent Lott in regard to PorkBusters--a blogging coalition devoted to keeping an eye on government spending. He disliked the attention brought to bear, but like any other news source, there was little he could do to stop the bloggers.

It was a de facto move made by Senator Bill Frist to make sure that the bloggers were exempt from the CFR laws passed, and to ensure they had the same freedoms as regular news outlets when it came to elections. Now, bloggers are treated as equals to the media. (The difference is while the old media is dying a slow, painful death, we're striving and thriving.)

But does that entitle us to have the same misguided notion of "freedom of the press" that the MSM proclaims itself to have? Are we allowed to blow the lid off of classified programs that the government may be using, especially in a time of war? No. And such actions are clearly defined within the law as a crime:

(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 under this title or imprisoned not more than ten years, or both.

And 18 USC 798 is quite explicit in what the term "classified information" means:

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;

In other words, despite Mr. Keller's postulations to the contrary, the Times had no right to publish that material. They had no right handling that material. And by publishing said material, they violated the law. Whether it was their intent to harm the nation or not is irrelevant. The above states nothing regarding intent. It specifically talks about the fact that unauthorized people aren't allowed to divulge classified material. As Mr. Keller doesn't work for the government, nor did he obtain permission to print this information, he isn't in a position to decide whether is should be divulged.

There are no protections for the press to pull this sort of garbage. And Professor Reynolds points out that the "freedom of the press" is defined as for the people, not some sort of extra privilege for the media. EVERYONE in the eyes of the Constitution is to be treated fairly and equitably within the law. There are no special granted powers or immunities for anyone unless otherwise noted. (For an example of this, refer to Article I, Section 6 dealing with the Congress' immunities.)

"Freedom of the press" is not some sort of broad protection for the press to print and say anything they choose. Even they must answer for what they decide to print and report. Libel and slander are still crimes, and the press has had suits brought against it for such transgressions. Likewise, divulging national secrets is a crime, and one in which the journalists, editors, and news outlets in question should be punished. We are not referring to heavy-handed tactics here. I am not endorsing Nazi-esque invasions of news rooms, and rounding up every journalist. However the ones who do these sorts of stories intentionally should be held to account for their actions. We know that James Risen and Eric Lichtblau made the splash at the Times with their NSA surveillance story, and wasn't it ironic that at the same time they did that story they had also finished a book regarding the same subject? Their intentions were to make money by letting a secret slip. Nice to know that prostitution is still the world's oldest profession.

For the record, the interpretation regarding the press' freedoms has been grossly exaggerated. Their freedoms extend no further than to print the stories they find. But with that in mind they are still bound by the law. And that law specifically states that no one may release any classified information to unauthorized individuals. While we, as Americans, do have a high opinion of ourselves, we are hardly "authorized" to know a damn thing about what our government is doing to protect this nation. And for Bill Keller to state--with a straight face--that this story is in the "public's interest"--makes me want to throw up. It was not in the public's interest in World War II to know of the D-Day invasion until the landings were already underway. Nor was it the public's business to know that we were working on the A-bomb in New Mexico towards the end of World War II. But it's a safe guess to say that had the New York Times known about either, and had the editorial staff and writers it does today, these two secrets would have likely been blown for all the world to see.

Marcie and I have both called for the prosecution of those at the Times, and other MSM outlets, who do this sort of "journalism." It's not reporting the news. It's being s detriment to the nation, and it's all over the petty, childish hatred of the sitting president and his administration. Hugh Hewitt stated today that the people at the Times don't hate the country. They simply hate the president, and they are so blinded by that hate that they'll do whatever it takes for them to hurt him.

Even if it means hurting the nation, which they don't really intend to do. As I stated above, their intent is a moot point. the fact of the matter is that they broke the law. They revealed secrets. If any blogger tried that, they'd be prosecuted for sure. But if the Times does it, they get a free pass? I think not. Michelle Malkin has a nice round-up of reader reactions to the Times story, and their letters to the Department of Justice calling for prosections of Times' writers and editors. If you are as ticked as we are, and as they are, then drop the DoJ a note: askdoj@usdoj.gov

Publius II