more on a strong comment on -- CIA recommends prosecuting press outlets for espionage

[Dave Farber <dave () farber net>]

> Date: Mon, 02 Jun 2003 00:31:17 -0400 (EDT)
> From: "Michael Froomkin - U.Miami School of Law" <froomkin () law miami edu>
> Subject: Re: [IP] a strong comment on -- CIA recommends prosecuting press
>  outlets for espionage
> To: Dave Farber <dave () farber net>
>
> [for IP if you wish it]
>
> Boy, my friend Stewart sure knows how to make bad cases sound almost good.
>
> The issue is simple: when there's a leak, should people outside of
> government be subject to prosecution for "publishing" it (which means, in
> effect, repeating it to anyone).
>
> The issue is not whether government officials should be prosecuted for
> spilling secrets.  There's a pretty great consensus that (with the
> possible exception of leaks to congress by whistle-blowers), government
> leakers should be punished for violating the classification laws.  Of
> course some of the main leakers on a daily basis are in the Cabinet and
> sub-cabinet....
>
> Whether or not Jim Warren's rant is 100% right, there's no question that
> the proposal being floated is to make journalists liable for publishing
> secrets.  In other words, to put the government's power at the throat of
> the media, to make every journalist have to think twice before exposing a
> scandal that involves anything classified.  That rule would do more
> long-term damage to our nation than (thank goodness) has been done by all
> the terrorists in our history, by giving the government the power to
> muzzle the media -- and by creating incentives for excessive
> self-censorship.
>
> If nothing else, the proposed rule would create an irresistible incentive
> to abuse the classification stamp in the future -- whether or not it is
> being abused today.   (Do you trust the Bush administration to release
> embarrassing matter when it would not harm national security?  Senator
> Graham seems to think they are using that claim to cover things up
> relating to 9/11.)
>
> Are there genuine secrets? Yes.  Might it be the better part of valor for
> a reporter-citizen to sit on some things they learn from leakers who
> should know better?  Yes. (And it's good to remind them of it.)  Will the
> press sometimes print things that maybe we will wish they hadn't?  Yes;
> part of the price of live in a free society. Should we try to prevent this
> by law? HELL NO.
>
> Prosecute the government officials who leak: they violated the law and
> their promise not to.  Don't prosecute the media. And don't confuse the
> two until we have an all-official media.
>
> On Sun, 1 Jun 2003, Dave Farber wrote:
>
> >
> > >Date: Sun, 01 Jun 2003 21:47:08 -0400
> > >From: "Baker, Stewart" <SBaker () steptoe com>
> > >
> > >
> > >Dave,
> > >
> > >Jim Warren's rant does not do justice to this issue.  He assumes that
> > >anything classified is classified to save some bureaucrat's butt.  But
> > >there are genuine national security secrets, and in the last 25 years the
> > >press has simply lost sight of that.  (Probably the last restraints died,
> > >ironically, at the hands of the right.  Anti-Clinton leaks to Bill Gertz,
> > >and his full-frontal release of classified data in the Washington Times
> > >are now the gold standard for press irresponsibility.)
> > >
> > >In fact, maintaining strict national security secrets in a war on
> > >terrorism is probably more important than in the Cold War.  In the old
> > >days, the press could argue that anything it could figure out, the
> > >Russians had probably already figured out, given their resources and
> > >intense surveillance of our government.  But now we're fighting an enemy
> > >whose principal intelligence capability is reading the New York Times on
> > >line (though since the Jayson Blair thing they may have switched to the
> > >Post).  At any rate, if it's not in the press, the chances that al-Qaeda
> > >is going to find out about our capabilities and plans is nearly zero. 
> That
> > >makes press reporting of national security secrets a particularly
> > >dangerous thing.
> > >
> > >In fact, there's a pretty fair argument that Bin Laden is alive and three
> > >thousand Americans are dead because of press leaks of such
> > >information.  Bin Laden dumped his satellite phone when the press 
> reported
> > >that we were using the phone to target him with cruise missiles.  Without
> > >the leak, we might have had another three years of intelligence and
> > >opportunity to kill Bin Laden before 9/11.  As I remember, that was a
> > >pro-Clinton leak.  Responding to claims that our cruise missile attack on
> > >an Afghan camp was futile and merely designed to make everyone forget
> > >Monica, some White House staffer told the press, "No, we really almost 
> got
> > >him.  We had his satellite phone number, so we knew he was there."  Do I
> > >think that that staffer -- and the press that lapped up the colorful
> > >detail -- should face prosecution?  In light of what it cost us, don't 
> you?
> > >
> > >Stewart Baker
> > >Steptoe & Johnson LLP
> > >1330 Connecticut Avenue, N.W.
> > >Washington, DC 20036
> > >phone -- 202.429.6413
> > >email fax -- 202.261.9825
> > >
> > >-----Original Message-----
> > >From: Dave Farber [<mailto:dave () farber net>mailto:dave () farber net]
> > >Sent: Sunday, June 01, 2003 6:30 PM
> > >To: ip () v2 listbox com
> > >Subject: [IP] CIA recommends prosecuting press outlets for espionage
> > >
> > >
> > > >Date: Sun, 01 Jun 2003 14:01:35 -0700
> > > >From: Jim Warren <jwarren () well com>
> > > >
> > > >
> > > >The Bush Administration wants to use espionage laws to prosecute any
> > > >media
> > > >outlets that dare publish or disclose [embarrassing] information if it
> > > >turns out to be "classified".
> > > >
> > > ><http://www.msnbc.com/news/919521.asp?0si=-&cp1=1>http://www.msnbc.co 
> m/ne
> > > ws/919521.asp?0si=-&cp1=1
> > > >
> > > >But ... wait!
> > > >
> > > >Remember the screeches from multiple administrations' "leaders" when
> > > >the
> > > >New York Times published "classified" documents obtained from Daniel
> > > >Ellsberg -- that came to be known as "The Pentagon Papers" -- showing
> > > >decades of systematic deception of members of Congress and of American
> > > >citizens and voters by the Pentagon, and by presidents and other top
> > > >officials in multiple Republican and Democratic administrations, 
> regarding
> > > >our participation in Viet Nam's civil war? (57,000 Americans killed;
> > > >hundreds of thousands maimed for life; millions of innocent Vietnamese
> > > >killed and maimed; U.S. torn apart politically and economically.)
> > > >
> > > >Or the Reagan-Bush administration's embarrassment when their Col. Ollie
> > > >North disclosed their "classified" secret document, where they 
> authorized
> > > >trading arms to the Iatollah for hostages plus his funding assistance,
> > > >hidden from Congress, of Central American terrorists/rebels -- that 
> became
> > > >known as "Iran-Contra"?
> > > >
> > > >Or the many, many other press disclosures of "secret" documents that
> > > >embarrassed numerous administrations ever since the beginning of the
> > > >nation -- where such documents were "classified" mostly to protect
> > > >bureaucrats and politicians, rather than to protect legitimate 
> operations
> > > >that were truly essential for the well-being of the nation's citizens?
> > > >
> > > >(SHOULD politicians' and bureaucrats' desire to hide their misdeeds
> > > >from
> > > >citizen review really be sufficient basis to further-crush what's 
> left of
> > > >First Amendment freedoms of speech and of the press?)
> > > >
> > > >--jim
> > > >Jim Warren; jwarren () well com, columnist, writer & public-policy
> > > >advocate 345 Swett, Woodside CA 94062 U.S.A.; 650-851-7075; fax/off due
> > > >to spam-glut
> > > >
> > > >[self-inflating puffery: InfoWorld founder; Dr.Dobb's Journal first
> > > >editor; Soc.of Prof.Journalists-Nor.Cal.James Madison
> > > >Freedom-of-Information Award; Electronic Frontier Foundation Pioneer
> > > >Award (1992, its first year); Playboy Foundation Hugh Hefner
> > > >First-Amendment Award (1994); founded the Computers, Freedom & Privacy
> > > >Conferences; blah blah blah]
> > > >
> > >
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> --
>                 Please visit http://www.icannwatch.org
> A. Michael Froomkin   |    Professor of Law    |   froomkin () law tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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