Another Loss For The "Brave" Journalists Who Reveal Secrets
Hat-Tip: Captain Ed Morrissey
Captain Ed caught this story about Judge T.S. Ellis, III handing down a decision regarding the AIPAC (American Israel Public Affairs Committee). The decision is here in a sixty-eight page pdf file.
FAS has the story:
In a momentous expansion of the government's authority to regulate public disclosure of national security information, a federal court ruled that even private citizens who do not hold security clearances can be prosecuted for unauthorized receipt and disclosure of classified information.
The ruling by Judge T.S. Ellis, III, denied a motion to dismiss the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who were charged under the Espionage Act with illegally receiving and transmitting classified information.
The decision is a major interpretation of the Espionage Act with implications that extend far beyond this particular case.
The Judge ruled that any First Amendment concerns regarding freedom of speech involving national defense information can be superseded by national security considerations.
"Although the question whether the government's interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government [i.e. not holding security clearances] is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense," Judge Ellis wrote (p. 53).
The provisions of the Espionage Act are not impermissibly overbroad or unconstitutional, the Judge ruled, because they are limited by the requirements that the prohibited behavior be both knowing and willful.
"The government must... prove that the person alleged to have violated these provisions knew the [restricted] nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless."
"Finally, with respect only to intangible information [as opposed to documents], the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation...."
"So construed, the statute is narrowly and sensibly tailored to serve the government's legitimate interest in protecting the national security, and its effect on First Amendment freedoms is neither real nor substantial as judged in relation to this legitimate sweep," Judge Ellis wrote (p. 63).
In other words, if I were Bill Keller, Eric Lichtblau, or James Risen, I would be sweating bullets right now. And I would toss Dana Priest and the WaPo under the bus, as well.
This decisions does more than protect the national security interests of the United States. It sends a message to the press--LOUD and CLEAR--that they are not protected by the First Amendment the way they thought they were. The First Amendment "freedom of the press" clause does not protect the press when they knowingly break the law. In all four stories--the CIA renditions, the CIA secret prisons abroad, the NSA terrorist surveillance program, and the SWIFT program--these government programs were classified. The person who gave these journalists information may have been privy to it, and may even had clearance to view the inforation. However, they did not have the clearance to pass it onto the media.
Likewise, the media had no business having such information in their possession. Nor were they authorized to release it. The leak fiasco that has plagued the Bush administration for the better part of two years has done virtually irrepairable damage to national security. The talking heads can crow until the cows come home that they did not, in any "knowing" way, damage our national security. They are incorrect in that assumption. Indeed, when the American public knows about a secret that our government had been protecting, it is a likely assumption that our enemeis will know about it as well.
The point the judge was trying to make was that regardless of what others think, say, or do, classified materials are to remain a secret. That is, until the government decides to declassify them. We may not like the fact that our government keeps things secret. We may not even agree that some things should be kept secret. But, as citizens of the United States, it is not our call to make. That is a decision best left in the hands of the people "in the know." These journalists think that they should have the right to walk around, and reveal any secret they uncover. To them it is "news." According to Bill Keller, the revelations in the New York Times's stories were done "in the public's interest" ; as if the public had an all-encompassing right to know.
And if that is his defense, then the New York Times has deserved the drubbing it has taken in the past eight months. This court decision is the pinnacle of that beating. An adjudicator-- a federal judge--has ruled that in the AIPAC case, there is no quarter that should be given to people who knowingly and willfully take national security secrets and divulge them. If I were a member of the press, I would be wise to watch my "P's" and "Q's" in the future. And if I were anyone connected with any of these stories, I would find a lawyer to take my impending case. Subpoenas may be in the future for any of these people.
Marcie
Hat-Tip: Captain Ed Morrissey
Captain Ed caught this story about Judge T.S. Ellis, III handing down a decision regarding the AIPAC (American Israel Public Affairs Committee). The decision is here in a sixty-eight page pdf file.
FAS has the story:
In a momentous expansion of the government's authority to regulate public disclosure of national security information, a federal court ruled that even private citizens who do not hold security clearances can be prosecuted for unauthorized receipt and disclosure of classified information.
The ruling by Judge T.S. Ellis, III, denied a motion to dismiss the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who were charged under the Espionage Act with illegally receiving and transmitting classified information.
The decision is a major interpretation of the Espionage Act with implications that extend far beyond this particular case.
The Judge ruled that any First Amendment concerns regarding freedom of speech involving national defense information can be superseded by national security considerations.
"Although the question whether the government's interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government [i.e. not holding security clearances] is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense," Judge Ellis wrote (p. 53).
The provisions of the Espionage Act are not impermissibly overbroad or unconstitutional, the Judge ruled, because they are limited by the requirements that the prohibited behavior be both knowing and willful.
"The government must... prove that the person alleged to have violated these provisions knew the [restricted] nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless."
"Finally, with respect only to intangible information [as opposed to documents], the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation...."
"So construed, the statute is narrowly and sensibly tailored to serve the government's legitimate interest in protecting the national security, and its effect on First Amendment freedoms is neither real nor substantial as judged in relation to this legitimate sweep," Judge Ellis wrote (p. 63).
In other words, if I were Bill Keller, Eric Lichtblau, or James Risen, I would be sweating bullets right now. And I would toss Dana Priest and the WaPo under the bus, as well.
This decisions does more than protect the national security interests of the United States. It sends a message to the press--LOUD and CLEAR--that they are not protected by the First Amendment the way they thought they were. The First Amendment "freedom of the press" clause does not protect the press when they knowingly break the law. In all four stories--the CIA renditions, the CIA secret prisons abroad, the NSA terrorist surveillance program, and the SWIFT program--these government programs were classified. The person who gave these journalists information may have been privy to it, and may even had clearance to view the inforation. However, they did not have the clearance to pass it onto the media.
Likewise, the media had no business having such information in their possession. Nor were they authorized to release it. The leak fiasco that has plagued the Bush administration for the better part of two years has done virtually irrepairable damage to national security. The talking heads can crow until the cows come home that they did not, in any "knowing" way, damage our national security. They are incorrect in that assumption. Indeed, when the American public knows about a secret that our government had been protecting, it is a likely assumption that our enemeis will know about it as well.
The point the judge was trying to make was that regardless of what others think, say, or do, classified materials are to remain a secret. That is, until the government decides to declassify them. We may not like the fact that our government keeps things secret. We may not even agree that some things should be kept secret. But, as citizens of the United States, it is not our call to make. That is a decision best left in the hands of the people "in the know." These journalists think that they should have the right to walk around, and reveal any secret they uncover. To them it is "news." According to Bill Keller, the revelations in the New York Times's stories were done "in the public's interest" ; as if the public had an all-encompassing right to know.
And if that is his defense, then the New York Times has deserved the drubbing it has taken in the past eight months. This court decision is the pinnacle of that beating. An adjudicator-- a federal judge--has ruled that in the AIPAC case, there is no quarter that should be given to people who knowingly and willfully take national security secrets and divulge them. If I were a member of the press, I would be wise to watch my "P's" and "Q's" in the future. And if I were anyone connected with any of these stories, I would find a lawyer to take my impending case. Subpoenas may be in the future for any of these people.
Marcie
posted by Syd And Vaughn | 11:42 AM
0 Comments:
Post a Comment
<< Home