Since He Asked…

Michael Barone has a long post today on the possibility of prosecuting reporters and/or publishers for violating the Espionage Act:

Part of me says that a prosecution of the Times and its sources would be fully justified… That part of me also tends to think that the Times, in its contradictory stances on the Plame and NSA disclosures, has been acting out of malicious political motives and in reckless disregard of the real security interests of the United States. So a prosecution would be a fair comeuppance. But part of me is also genuinely queasy about the prospects of prosecutions of the press, queasy about the possibility of selective prosecution if not now then in the future, queasy about giving prosecutors the task of determining which secrets are essential to the national security and which are just the results of casual overclassification, queasy lest the government by overclassification enforced by prosecution should unduly restrict the flow of information to the public.

The answer when there are grave risks on all sides is that everyone should act with caution and restraint. The Times hasn’t. It has recklessly brought this peril on itself. But that doesn’t mean that the government shouldn’t act with caution and restraint. I’m glad the decision isn’t mine to make. What’s your call?

I’m glad you asked. Here’s my call, from about five months back:

Speaking as just one of the multitudes of “little people” with security clearances who’re regularly reminded of the severe legal penalties for just making an honest mistake in failing to protect classified information (never mind deliberately revealing anything), I can’t say I feel any sympathy for the bigger wigs in D.C. who just as regularly commit violations that would put me in jail.

The law applies to everybody equally–or at least it ought to. Pat Leahy, Dick Shelby, Sandy-freakin’-Berger and everybody who works for them ought to face the same jeopardies I do when it comes to protecting this information, and if Jack Shafer and “national security reporters” don’t like it, tough.

You want to try and change those laws and/or their penalties, go right ahead. It’s a free country. But don’t sit there and tell me the “big boys” deserve the special privilege they’ve been getting from federal prosecutors who don’t want to cross the press.

That goes for the “journalists” who knowingly publish classified information as well. The law is the same for everybody–or at least it should be. As I’ve said many times before, reporters are not superior beings. They are not entitled to a seperate set of rules from everybody else.

If the law applies to me, it damn well also applies to them.


17 Responses to “Since He Asked…”

  1. amy Says:

    no kidding. i’d not only loose my job, if i had done what these people did, i’d be sitting in jail right now.

  2. Nancy Says:

    Tell it, brother!

  3. Ugh Says:

    Well gee, what if it’s classified and publicly available? The two categories aren’t mutually exclusive.

  4. EXDemocrat Says:

    These laws are in place for a very good reason. If we start loosening them, then where does it stop? Spies or whatever PC word people want to calm them today, come in all shapes and sizes. And yes, they can be American citizens. If the shoe fits….

    I say, the laws are on the books, use them. We cannot avoid to take our countries security for granted anymore.

  5. Rob Thompson Says:

    What I’d really like to see is about three hundred parents of GI’s outside of the NY Times with signs saying “Stop Murdering Our Children With Your Lies.” Think that would make the news? Would the publisher of the Times offer to meet with them and hear their grievances? It would be interesting to see the gyrations.

    Prosecution’s second best, though.

  6. Siergen Says:

    Ugh, if the information is already in the public domain, then it cannot be legally classified. That doesn’t stop the government from trying to do so from time to time, but it is (as I understand it) a legitimate defense if someone tries to charge you over releasing that information.

    However, if the information was classified by a government official with the authority to do so (and those positions are named in the regs) *before* it leaked into the press, then it remains classified. Just because something appears in the press doesn’t mean it’s true, and if no one confirms it, the info might be viewed as just another false rumor. That’s why you’re told to neither confirm nor deny any questions regarding classified info.

    When I was in the Air Force, I’d often see correct classified information in one issue of Aviation Week, then a few months later see contradictory incorrect info in the same magazine. Since no one officially verified the leaked info, the press didn’t know which leaks were accurate and which were not.

  7. Sharpshooter Says:

    Are we not a “Nation of Laws”?

    I say “Hang ’em, then have them stuffed”.

  8. Papa Ray Says:

    Max Friedman has a few things to say about that and others.

    Papa Ray

  9. EXDemocrat Says:

    You know what Papa Ray? President Bush needs to read that. I’m serious.

  10. JAK Says:

    Either we have secrets or we don’t. Either we have laws or we don’t. If we have laws, they apply to all (at least the way I read the Constitution). If we have secrets, and laws designed to protect them (and indirectly us), then it is incumbent upon the Government to enforce those laws. If we don’t like the laws, we can amend the COnstitution, vote in new representatives, change the laws, etc., but don’t break the law. Civil disobedience doesn’t cut it here. Hang them all! Twice!!

    By the way, seeing material you know is classified in public print does not release you from your obligation to protect the classified information.

  11. Dan Collins Says:

    I think that as a matter of policy willful disclosure ought to be punished MORE HEAVILY the higher your clearance. To accept a higher level of clearance means that you accept the responsibilities that come with it.

  12. Cylinder Says:

    Ugh, if the information is already in the public domain, then it cannot be legally classified. That doesn’t stop the government from trying to do so from time to time, but it is (as I understand it) a legitimate defense if someone tries to charge you over releasing that information.

    It’s a bit tricky, really. You can discuss information from an unclassified source. You cannot use an unclassified source to confirm information that is classified.

    Say, for instance, you were to call my office – sans STU – and ask the operational ceiling of the MiG 21 Fishbed. I could tell you that Jane’s All the World’s Aircraft lists it as 50,000 feet AMSL. It could be a security problem if I quoted the same spec without attributing my unclassified source.

  13. Curious Says:

    I think Barone’s point is that if, in 2009 say, President Hillary Clinton goes after Drudge and the Powerline boys for printing some highly embarrassing classified information, a lot of the current prosecution proponents might have a different take on things.

    I don’t think journalists ought to have any special protection under the law. I think as a practical matter, the government should be very selective about prosecuting these cases — especially as the number of journalists (read bloggers) steadily climbs.

    In my prior example, Drudge and the Powerline trio are in prison, so the Corner kids and Glenn Reynolds and the Washington Times and Fox News also run the information in order to turn up heat on the government. It’s what happened with the Pentagon Papers, if anyone remembers that. It turns what was already a fair-sized hill of a controversy into an Everest of problems for the administration.

    If Stephen’s reasoning worked, administrations would simply classify anything remotely controversial (which is pretty common practice to begin with). Democracies work better when voters know more.

  14. dick Says:

    I haven’t worked with classified info for many years. However, during the JFK and LBJ presidency I handled stuff that was about as high as you could get at the Pentagon. This is the stuff that went to make up the briefing books for the pres, Joint Chiefs of Staff, congress critters and others. I also handled the Eyes Only messages.

    That said, if I had messed up I would have been in Leavenworth before the day was over. If I had done even half of what Sandy Berger did I would still be in jail. I would like to see the NY Times and the authors of that info as well as all their sources get jail time for what they did.

    It appears to me that you can’t pick and choose what security reg you follow and what one you break. All the security regs have mechanisms for questioning whether the info should be classified or not. There are Inspector Generals whose reason for being is handling situations where info is classified to hide it when it should not be hidden. Before you even think of going to the NY Slime or its equivalent you need to exhaust the mechanisms of the regs. Then you need to exhaust the access to congress critters. Once you have dealt with all of that maybe you might consider something else. In the case of the NY Slime and Sandy Berger and Patrick Leahy and, apparently, Jay Rockefeller, they just leaked as a first choice. For that they should be prosecuted to the full extent of the law. If they did not have the positions they do, in other words if they were someone who held the kind of position I held at the Pentagon years ago, they would have been locked up long ago and rightfully so.

  15. mrsizer Says:

    Was I just a silly young Airman for keeping the Secret stuff I knew a secret?

    It was pretty trivial – a few stats – but it was classified as Secret and I respected that – and still do, so don’t ask 🙂

    To echo many other posters: If it’s a law it’s a law. (I’m not in favor of punishing “higher-ups” more – that reeks of “hate crimes”. If something is a crime, it’s a crime. Motivation and class/rank are irrelevant.)

  16. Joe Says:

    One somewhat related solution is to classify much less material and be more specific what material should be classified.

  17. edgr Says:

    I think it should be more serious to unneccesarily classify information.

    Really, I don’t think the government should classify anything, but since we’re stuck with a government it has to keep secrets. Once classified information is leaked, if it can be shown in court to have been unfairly classified (say for politically embarassing material) then that should get someone in trouble for classifying it in the first place.

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