Patterico on Times reporters: Lock ’em up

posted at 5:07 pm on June 23, 2006 by Allahpundit

He wants them subpoenaed to find out who leaked the bank info, and then, after the leakers are put away, it’s their turn at the defense table.

I think he’s kidding himself. Not on the law, but as a political matter. However disgusting and adversarial the media has become, Americans will blanch at the slippery-slope potential of busting newspapers unless/until it can be shown that terrorists benefited from the information being publicized. We can assume they’ve benefited, but without concrete proof most people will take the “no harm, no foul” approach.

The frustration’s understandable, though. Security decisions that put the public at risk should be made by those accountable to it. In this case, they weren’t: the newspapers arrogated that responsibility to themselves, and there’s nothing we can do. Can’t vote them out, probably can’t prosecute them. We could boycott them, I guess, but that strains the definition of “we.” Conservatives already maintain a de facto boycott of the NY and LA Times; they’re liberal papers for liberal readers, and few of those readers will have any objection to them publishing this. It sucks, but it’s really out of our hands. Red versus blue, as usual, and blue’s betting that nothing worse will come out of this than some political difficulty for Bush. I hope they’re right.

One of the NYT reporters defended the story today to Editor & Publisher, FYI. Feel reassured:

Lichtblau, who co-wrote both stories with Times reporter James Risen, said that in each case the newspaper believed that the information it was reporting would not put anyone in harm’s way. “I think we came down on the same side in both questions,” he said of the two stories. “That this is not giving away information that is tangibly helping terrorists know what they don’t already know.”…

Lichtblau added that the reaction to the wiretapping story, which included both criticism and support for the paper, made it easier to go with this story. He noted that there had been no proof that the previous story had endangered national security.

“Our belief that it did not have any tangible impact has been borne out,” he said.

Not only will they decide what’s in “the public interest,” they’ll tell you whether their decisions have put you at risk or not. And guess what? They haven’t.

Update: Patterico comments below.

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Actually, I was a little more . . . nuanced in my post. I tend to agree with the pro-prosecution crowd, but I haven’t made my mind up completely. I presented arguments from both sides.

I think the reportage on this program is different from the reporting on the NSA program. The program’s legality seems on firmer ground, and — correct me if I’m wrong — it seems to have more tangible evidence of success. Also, it seems further removed from citizens’ everyday concerns: everyone uses a phone, but does everyone wire money internationally?

I honestly think that the newspapers have made a big mistake with this one. But you may be right: the public may still swallow the media’s line. It will probably be mischaracterized as the government snooping into everyone’s bank accounts. That’s how the jokes on Leno will portray it, huh?

Patterico on June 23, 2006 at 5:13 PM

Not only will they decide what’s in “the public interest,” they’ll tell you whether their decisions have put you at risk or not. And guess what? They haven’t.

Color me relieved!

Hoodlumman on June 23, 2006 at 5:19 PM

Well, they may not go after the NYT, but I think it would be just plain negligent not for them to try to discover and prosecute the leaker for treason…

bspoogeferd on June 23, 2006 at 5:28 PM

Mr Patterico, Who told you this???

Babs on June 23, 2006 at 5:35 PM

Prosecute and jail. There’s more than enough evidence to prove these treasonous asses have aided the enemy. Someone should ask for the NY Slimes subscription list. CAIR probably gets a couple hundred copies and mails them to those friendly “religion of peace” guys trying to kill every one of us, including them. Idiots

darwin on June 23, 2006 at 5:45 PM

My idea is the first one we need to take care of. Revoke the press credentials of the NY Times and the LA Times. Let them report on what CSPAN is showing today. They can report on the White House from the park across the street.

It’s hard to get a scoop if you don’t have a building you can get into in Washington.

Snake307 on June 23, 2006 at 5:46 PM

About boycotting.

While it may be true that there are no more subscriptions left to cancel, I suggest that focussing on advertisers could be an effective approach. I do not mean all advertisers, but one or two big ones (McDonalds or something like that). If the readers all agreed that they abandon the advertiser until it pulled out of the NYT, the LAT (and maybe the Atlanta J&C) it might be effective.

Once they pull out, move on to the next advertiser.

Blaise on June 23, 2006 at 5:55 PM

We can boycott their advertisers.

It would be as simple as, “We refuse to use your products/services while you continue to support financially an organization that actively works to undermine the security and defense of this country.”

Subscriptions are not the only source of revenue for the NYT.

As far as prosecutions go, let’s just start with the leakers. After that we can figure out if it is politically feasible to go after the NYT. Right now, we just say, “The New York Times is bad, M’kay…” and do nothing just like with illegal immigration. At least we don’t have to worry about a Guest Leaker program, since that seems to be a job that some Americans are all too eager to do.

rw on June 23, 2006 at 5:57 PM


What more concrete evidence of harm could the government show, realistically? They could point to previous success stories, such as the capture of the Bali nightclub bombing. Then they could show the jury that the program, which was previously effective, is finished. Isn’t that enough?

Sure, there’s a slippery slope issue when you prosecute journalists. But there’s also one involved with not doing it. If we won’t prosecute in a case like this, where the program was apparently legal and saving lives, then what stops journalists from being the sole arbiters of what classified information will be disclosed to our enemies?

We appear to have a valid and applicable statute that many experts say can be applied consistent with the First Amendment. If we don’t use it now, then when?

Patterico on June 23, 2006 at 6:04 PM

Its been a long time since we’ve had a trial for treason, this could be something nice to start.

Defector01 on June 23, 2006 at 6:04 PM

If we don’t use it now, then when?

After an attack made possible by publication of classified information?

Allahpundit on June 23, 2006 at 6:06 PM

Having to prosecute a war while coping with “civil liberties” and “public interest” fetishists like the Times gang reminds me of the old joke about a couple of guys riding a two-seater bicycle up a hill: When they finally reach the top, the one in front says, “I can’t believe how exhausting that was! I wasn’t sure we were going to make it!”

To which the back-seater replies, “Well, then aren’t you glad I had the brakes on the whole way? Otherwise, we might’ve rolled back down!”

I’ll give you one guess as to who the back-seater is in our efforts to defeat al Qaeda.

In the Cold War, the Times was a leading voice of the anti-anti Communists in their struggle against the anti-Communists. Just like today, when the administration wants to stop the terrorists, Keller & Co. are the voice of those who want to stop the administration.

That’s the price, I suppose, that a democracy pays when fighting a war: there are a lot of people who you can’t count on for support, but who have to be dragged along as baggage.

Or, as Reagan said of those Democrats who after it was over spoke of how “We won the Cold War” …. “Who’s this ‘we’?”

Spurius Ligustinus on June 23, 2006 at 6:15 PM

Boycott, yes. Is the secretness of this information considered covered under the laws? Then procecute, the MSM are NOT above the law.

And after the next attack, just remember the address to your nearest civil district court, and sue the crappola out of them. They aren’t immune.

TheSev on June 23, 2006 at 6:18 PM

If we don’t use it now, then when?
After an attack made possible by publication of classified information?

Allah, I’m not trying to be snarky here, and I am not trying to attack your motivations, but I think that the victims of this hypothetical attack you are refering to would say that is waiting too long.

Very respectfully,

EFG on June 23, 2006 at 6:20 PM

Hey, I’m in. I live on the left coast, and already don’t have a subscription to the L.A. Times. Targeting their advertisers could be the ticket. Using the rule of thumb that one well-written letter represents a thousand opinions, some attention could be drawn. Can anyone come up with a list of their major advertisers without my having to support the paper by actually buying one?

Chappy on June 23, 2006 at 6:23 PM

And how does he know what the terrorists already know?

Attila (Pillage Idiot) on June 23, 2006 at 6:29 PM

The classic insult to a newspaper is to call it a fish wrapper. How about a Send-a-Fish campaign? They’re lighter than bricks and a lot more obnoxious, especially in the summer heat.

RedWinged Blackbird on June 23, 2006 at 6:48 PM

If some one knowingly disclose classified information without proper authoriztion, then they should be prosecuted.

I don’t see it any other way.

easy87us on June 23, 2006 at 6:51 PM

We need a website with a day by day list of the advetisers in the NYT, LAT, and anyone else (WAPO?) who published this story..

I for one would love to know who to boycot!

Romeo13 on June 23, 2006 at 6:56 PM


NTWR on June 23, 2006 at 7:04 PM

This LickBalls or what ever his name is…dude needs to come to the same end as the Rosenbergs…

havok on June 23, 2006 at 7:05 PM

Most important of all is that we have people that are holding security clearance but are continuously leaking classified info to the press.

Nail those S.O.B first!

easy87us on June 23, 2006 at 7:09 PM

We’ve already had the catastrophic attack on our soil that happened at least in part because our government failed to connect the dots. Since that day, it has been doing all it can to connect the dots. Yet that job is made harder by stories like those the Times publishes.

I say prosecute. The slippery slope we’re on is one that will take us to a place where nothing can remain classified if disclosing it can possibly damage a president that the leaker doesn’t like. In the environment that not prosecuting creates, literally nothing will remain classified, which means that all of our enemies will know all that there is to know about everything we can bring to bear against them. This is a recipe for bringing a warfighting government to its knees. We cannot win this war, the next war or any other war this way.

The leakers, first and foremost, must be found and prosecuted to the fullest extent possible. These leaks can’t be tolerated any longer. Once the leakers are taken care of, it’s time to deal with the press. The press is full of cowards who like their cushy perches in prestigious organizations. Send a few to jail for publishing these kinds of leaks and the rest will get the message.

Bryan on June 23, 2006 at 7:42 PM

Well said. I’m becoming more and more persuaded.

Patterico on June 23, 2006 at 7:50 PM

It is one thing for the terrorists to have suspicions that bank transactions may be being monitored. They would take extra measures to protect the transfer of funds just like the Mafia does. Where the rub comes in is giving the name of the agency being used and certain particulars about what information was necessary to acess the database. What I just learned by watching ABC news is that we had to have a specific and in some cases a specific transaction and bank account number along with the reason we wanted to view the information. The agency which maintains the database always had an auditor present monitoring the search and could at anytime end the search.
Okay so now I’m a terrorist and I now know that the Americans need all of this specific information before getting approval for a search. Guess what I am going to do?
I will actually start moving larger amounts through banking organizations that are not a part of this consortium, I am setting up hundreds of accounts with as many aliases as I can and in some cases setting up accounts that will only be used once. Now if somebody with just a little education can figure this out guess how long all of these Ivy League educated jihadists took to figure it out?
Arrest the leaker and prosecute them to the full extent of the law to send a message to all the others in our intelligence who are working against us.

LakeRuins on June 23, 2006 at 8:00 PM

It’s gonna backfire…

Press credibility has never been lower. A secondary boycott of advertisers could be effective.

Don’t turn these chumps into martyrs.

Allahpundit on June 23, 2006 at 8:03 PM

Boycotts never work. Never ever ever. Especially in the case of a paper like the Times, which has its advertising spread around dozens of advertisers.

I don’t remember too much concern in the conservative blogosphere over making Moussaoui a martyr, and martyrdom is actually a part of his ideology.

I don’t remember too many tears shed for Judith Miller’s jail time or too many people making a martyr out of her.

I don’t think Rosen and pal will be martyrs, but if they are I really don’t care. I want the leakers hunted down and prosecuted.

We need to set some examples, or this will continue and get worse. We’ve already had that same paper publish a) the Iraq war plan before the war started, b) the NSA data-mining operation and now c) this SWIFT program. What will it take to make them stop?

Jail. That’s the only alternative left to stop them. Boycotts will not do it.

Bryan on June 23, 2006 at 8:18 PM

sending a fish… Don’t know if thats legal (the next headline “Rabid right wing nuts send biological weapons to the NYT office!” )
But…. If it is legal, then make sure it is fish from a company that does NOT advertise with the rags. Or could send them beanie bag fish….
Matter of fact, real fish would get Peta on us, and the last thing we need is ALF bombing Hot air.

Wyrd on June 23, 2006 at 8:22 PM

I don’t remember too much concern in the conservative blogosphere over making Moussaoui a martyr, and martyrdom is actually a part of his ideology.

That’s because there was no cost to making Moussaoui a martyr. This incident could turn out to be a political windfall for Bush; the case against publication is rock solid to all but the most fevered moonbat minds. Turning it into a First Amendment issue lets the Times play the victim and shifts the focus away from their underlying treachery.

The key questions here is, if you lock some of them up, will the rest in fact be deterred from publishing classified info? I say no. If anything, it’ll make them more determined to do it. You say that martyrdom is a part of Moussaoui’s ideology, but it’s part of the left’s too: they’re forever whining about the “chill wind” and the imminent descent of fascism upon the land. That’s what all the masturbation over Stephen Colbert was about. They fancy themselves the Resistance, and locking up a few reporters will only fuel that fantasy among the rest and make them want to publish other stories so that they too can live the romantic dream of being an imprisoned dissident. And then what happens? Do you lock up all of them? How will that play politically?

Boycotts aren’t ideal but they’re the only option.

Allahpundit on June 23, 2006 at 8:36 PM

I agree with Allah, don’t turn them into martyr’s. I just wrote a post about how we should turn them into defendants in a civil class action for “willful neglience and endangering the public safety”. That would be pure justice, a liberal judge having to decide between “public safety” and “MSM” over a legal (by the NYT’s own admission) security measure.

Creed on June 23, 2006 at 8:40 PM

Yeah, any way to punish them from the bottom up instead of the top down is my preference. That takes away their david-versus-goliath posture.

Allahpundit on June 23, 2006 at 8:41 PM

I’m a fisherman (not a big PETA fan), and I’ve never thought of a dead fish as a biological weapon. Be creative. Use zip-lock bags, dry ice, etc. The objective is to flood the NYT with fish without stinking up the post office.

RedWinged Blackbird on June 23, 2006 at 8:43 PM

When I was in the Air Force, I had to sign non-disclosure forms and I had to obey the law governing classified information. If I had disclosed to anyone–at all–what I had seen I would have been prosecuted or at the very least had my classification revoked. And I should have been prosecuted, if I had broken the law. Those who leaked this program to the Times signed similar forms. They broke the law and must be held accountable.

The real question in this and other leak cases is, are journalists and their sources above the law? If they are, then let’s make it official and declassify everything. If they’re not, let’s prosecute them for breaking the law.

I don’t care how it plays politically. I really don’t. The political winds come and go. And besides, how can the politics get any worse than they currently are? This administration is just about sunk because it hasn’t defended itself from scurrilous charges and because it doesn’t seem to have any ability to stop these damaging leaks. I don’t see how going after leakers and their favorite leftwing reporters makes the politics worse than they are right now.

Re the Resistance, of course that’s how these idiots view themselves, but at heart they’re cowards. One way to break any fantasy Resistance is to actually do something to a couple of its most prominent faces. Doing nothing only encourages them to take larger risks–you have to outdo what the last guy did to earn that next Pulitzer. So he exposed a bank monitoring program? Watch me start publishing really detailed descriptions of the latest weapons and tactics, or the other secret program that just helped roll up that ring in Miami. Or that other thing the government is using to move captured terrorists around. It won’t stop until some of the leakers and journalists feel the pain of it all, personally. They won’t feel a boycott, and neither will their employers. That’s a way to take out the rage to no good effect.

But beyond all of that, there’s a serious principle at stake. The bedrock principle is, does the law mean anything or not? Evidently it means nothing to the leakers and to the journalists who are publishing and therefore destroying the tools we’re using to win this war. They know that at the end of the day no matter how much the administration whines, they will get away with their leaks and will suffer only the ignominy of recieving the next great professional accolade. The country’s security be damned; they don’t care. Those who hold that view need to be disabused of it.

And faster, please.

Bryan on June 23, 2006 at 8:56 PM

After an attack made possible by publication of classified information?

Respectfully, since I back the sentiment fully, but good luck trying to prove that in a court of law. Heh. We can’t even pin the death penalty on a Jumpin’ Jihadi who openly confessed to having conspired to kill 3,000 Americans, so I’d like to see the prosecutor who could prove, beyond a reasonable doubt, to a pool of 12 carefully selected idiots (they wouldn’t survive the selection process otherwise) that something the NYT said some time ago led directly to a successful attack.

I’d really like to see it, but it ain’t gonna happen.

Misha I on June 23, 2006 at 9:05 PM

I just wish all the other news agencies would just ignore stories published in the NY times. Like the Hollywood crowd journalism circles are filled with people who constatnly tell them how great they are further inflating thier egos. The NY Times no doubt, based on election results, speaks to their readers in NYC, but there is no need to grant them some sort of national hero worship status by constantly citing them as source material by other journalists, but who am I kidding. Most of the MSM look to the NYTimes as their bible.
I don’t know of a good way of knocking them off their pedestal. I would never know of anything they publish except for the fact that everybody else takes their stories and feature them. Ignoring them won’t make them go away, boycotts would only have limited effect, so that only leaves some sort of direct attack on everything from the credibilty of their articles to questioning the sources of their funding. It would be necessary to put them under an electron-microscope calling into question every action or inaction they take, real or imagined.
The elite at the newspaper could give 2 hoots less about what the great unwashed think of them since they are surrounded by their syncopants and firmly believe they answer to a higher power.
They are already suffering financially as evidenced by recent layoffs so unless the circulation numbers were to drop significantly I don’t see any real changes coming. They may have to lay off a few more janitors but the ones who actually produce the articles will continue on.
So anybody with any good ideas on how to humble them I am all ears but I really don’t see anything that would cause them to stand up and take notice.

LakeRuins on June 23, 2006 at 9:11 PM

I agree with you that the leakers can and should be prosecuted. They waived their speech rights with respect to classified information so there’s no legal or moral issue. Make a promise, keep a promise. As for the press, you say they’re “above the law” — but which law? Patterico’s made a case for prosecution, but even he admits it’s dicey in light of the First Amendment defense.

You say:

I don’t see how going after leakers and their favorite leftwing reporters makes the politics worse than they are right now.

It could be worse. If they start prosecuting journalists, it’ll lend surface credibility to all the whining about creeping fascism. Some independents will respond to that, and we’re in a tough enough position electorally right now that that’s not a risk that should be taken lightly. Would you prefer having an obstructionist Democratic Congress passing presidential censure resolutions to mark the occasion every time one of these articles is published?

I said in my post that this all boils down to red versus blue, and I should have emphasized that more. It really does. The only surefire way to kill these exposes is to starve them of the oxygen of public support. But that’s not going to happen in our adversary culture. Fifty percent of the population is fighting a war on Bush, and so long as that mentality holds, there’ll be reporters willing to cater to it. Legal sanctions won’t work. Nothing will, really. Our country, 2006.

Allahpundit on June 23, 2006 at 9:20 PM


Press credibility has never been lower. A secondary boycott of advertisers could be effective.

Don’t turn these chumps into martyrs.

I have to disagree with what I think you are saying here. My two cents in this matter is that I don’t really care what the press credibility is. Low or high, doesn’t matter. What matters is this: Is the NYT hindering / opposing / sabotaging (sic?) the GWOT? Are they endangering American citizens and troops? I think they are. So I say prosecute.

You are right Allah, press credibility is low. But that doesn’t seem to stop them from doing these sorts of things. Because they are bound and determined to do so. Bush had some of the lowest polls ever recently, but it didn’t seem to make him back pedel from what he had decided. So it seems to be the same with the NYT.

Condi Rice said “we don’t want the smoking gun to be a mushroom cloud.” *

I feel the same way. How would we feel if in the future, another intel operation is leaked? And then, because of the leaked intel operation, terrorists conduct a successful attack and cause mass U.S. casualties? What then? Do we now have the moral high ground? Can we say “I told you so” to the NYT? How will the victims feel about this? What do we tell them? “Sorry, we might have been able to prevent this, but we didn’t want to give the press any sort of chance to boost their credibility?”

Yeah, it is a hypothetical, and I’m not trying to be unfair to Allahpundit, and if I am, I appologize. But I think this is about more than just the media and its credibility.

Very respectfully,


*If I am mixing metaphores or something with this Condi quote, sorry. Literary matters aren’t my strongest suit. And don’t ask me to define “metaphore”. Or spell it either… :-)

EFG on June 23, 2006 at 9:30 PM

I see that the arguement you, Allahpundit are making have advanced quite a bit.

It seems I must write my posts in MS Word quicker, if I am to avoid falling behind the news cycle.

EFG on June 23, 2006 at 9:33 PM

Here’s the thing: Leaking this information is a crime. By protecting the identities of the leakers, the reporters are harboring criminals. That’s a crime, is it not?

Journalists are not above the law. If they’re protecting criminals, they’re breaking the law and should be held accountable. The average American will understand that, no matter what nonsense the left throws out. Especially in light of what’s going on in Canada and Miami.

The situation is as Ace has described it: The leftwing press is blackmailing the country into putting its favored politicians back in power or it will continue to help terrorists murder us by publishing things like SWIFT. That’s stark, but it’s the right way to see it. You can’t meet that kind of tactic with nothing, or with a boycott, or by surrendering on the politics. You have to defeat it. You have to push back or you will get run over.

Make the left justify its actions. Put them on the defensive–make them defend reporters who disclose classified programs while we’re at war. Giving up because they’re going to whine about creeping fascism (when they’ve been whining about it for years just because a Republican’s in office) just lets everything slide into worse conditions. Prosecuting journalists who are harboring criminals doesn’t lend surface credibility to moonbats–it restores credibility to an adminstration that is coming off as weak and surrounded by domestic enemies it’s too scared to face down.

Fear of criticism never won anything, especially a war.

Bryan on June 23, 2006 at 9:33 PM

I also believe that the attention needs to be turned on the leaker. They have begun to feel that they can act with impunity. Like ohter posters I too worked in postions when I was in the military where I was exposed to classified matrerial and signed documents stating that I would not disclose the information. Now it may just be me but I didn’t need to sign a non disclosure statement to know that the information should not be made public. I saw guys lose security clearances for writing bad checks and now people working echelons above what I ever did write books and blab to newspapers.
Find the leakers, prosecute them and make the next leaker think twice before he talks to a reporter.

LakeRuins on June 23, 2006 at 9:40 PM


I’m not trying to get all preachy or anything. I see what you are saying about Red vs Blue and upcoming elections. I don’t have a solid answer to that.

But aren’t somethings above politics? Prosecuters aren’t supposed to weigh politics when they decide to file charges. If some crook did the crime, you file. And this NYT piece just seems so wrong.

Same with war. If the president perceives in his mind a clear and present danger from Iraqn, doesn’t he have aobligation to act, regardless of the polls? If he TRUELY believes Iran is this danger?

That is how I sort of see this.

I see what you are saying about polls, but would the American people really rally against the President over this? I find it hard to believe that the American people have such different views as we do, that what the NYT did was totally wrong. They gotta (I think) see it the same way, as an example of some arrogant press deciding that their Pulitzers and book deals were more important than public lives and safely. After all, weren’t most of the press and leftwing moonbats surprised that most of the public thought that Bush was right to have the NSA program?

Very respectfully,

EFG on June 23, 2006 at 9:40 PM

I agree with Larry Ludlow’s position at Real Clear Politics. The Old Gray Lady is a saboteur. I haven’t and I won’t give my proxy to Bill Keller and his boys to make a decision for me, especially when it may be life or death for one of our young soldiers. When America is at war with warriors on the battlefield for the NYT to publish and then wait to see if someone is killed, is both illegal and immoral. The leakers and the publishers of this kind of information should be punished.

d1carter on June 23, 2006 at 9:42 PM

I guss the only aditional opinion I have is that I think the NYT should be prosecuted, but we shouldn’t rush into it. I don’t think we should whip ourselves up into a rightous frenzy and go off half cocked. But we need to respond. Strongly, but not rashly. Measure twice, cut once, revenge* is a dish best served cold, etc.

*Yeah, revenge isn’t the right word. This ain’t revenge, but that is how the saying goes. Freakin’ metaphores…

EFG on June 23, 2006 at 9:46 PM

The initial focus needs to be addressed towards those who provided the classified details of the program to Lichtbrau and Rosen. That’s where a clear violation of the Espionage Act has taken place – and where we have to start.

There is a strong current within the bureuacratic ‘professionals’ inside the Executive Branch agencies that appear to feel that their loyalties are not to the country or to the elected / appointed officials above them – but to their party and ideology first.

They hide behind the mask of being an anonymous source – and try to influence events and perceptions based on their actions. When exposed, as Mary McCarthy was when she was dismissed from her CIA position, they cry ‘whistleblower’ and paint their actions as being for the ‘common good’.

It’s a mistake to make this a 1st Amendment / Freedom of the Press issue. We need to address the culture and actions of diliberate leaks by professionals, and then go after those in the press who print these releases of classified information for doing just that. We didn’t elect, or have our elected officials appoint Keller, Lichtbrau, and Rosen to define what’s classified or not.

Athos on June 23, 2006 at 10:00 PM

By protecting the identities of the leakers, the reporters are harboring criminals. That’s a crime, is it not?

I don’t know offhand. If I had to guess, I’d guess that “harboring” for purposes of federal criminal law requires some sort of physical accommodation. In any case, I’m not defending journalists from having to reveal sources when called as a witness in some leak prosecution or from being jailed for contempt if they refuse. I’m defending them (grudgingly) from being prosecuted independently for publishing the leaked information.

I think we’re going in circles at this point. You believe prosecuting the media will get them to straighten up and fly right while restoring confidence in the administration; I believe it’ll make things worse on both counts. Assuming I’m right, prosecuting them might still be worth it if the damage prevented by stopping the leaks is greater than the damage that would be caused by the political fallout from the prosecutions (i.e., the Dems taking back Congress). Lots of X factors there. I’m not sure where it leaves us.

I’ll conclude simply by noting that con law professor Hugh Hewitt agrees with me about not prosecuting reporters. Which, er, probably means I’m wrong.

Allahpundit on June 23, 2006 at 10:32 PM

See the problem is that the press WANTS to be prosecuted. They become the VICTIMS then and we all know how the liberal left loves victimhood. Civil suit/class action looking for damages of 5.00 for every citizen (screw the illegals) would amount to a hefty sum. I doubt that we would even have to have an attack to proceed, just the negligence of putting American’s in danger should suffice and it’s easily provable. This is doubly so since they admitted that the program was legal, so there is no “whistleblower” status here on illegality.

Creed on June 23, 2006 at 10:59 PM

Way to play that trump card, Allah. Heh. Gotta love Hewitt, but he ate the Miers crap sandwich like it was Dee-Licious and he urged everyone not to correct the record when Katrina turned into a political football. If I’d listened to him, no one would know about those flooded buses.

Actually I don’t believe prosecuting the media will get them to straighten up. I just think it will take the worst offenders off the streets and scare the rest. I’m fine with the press being a little scared if it makes them shut up about vital anti-terror programs that work and are legal. The status quo of letting them walk sure isn’t working.

The highest priority has to be getting the leakers themselves–we agree on that–but I think sqeezing the reporters may be a good way to get at them. I’m not sure that there is another way, since I don’t trust much of the DC bureaucracy to clean up after themselves, I don’t trust the pols in either party to make them do it, and I don’t trust outside federal prosecutors to have their heads screwed on straight enough to do it either (thank you, Patrick Fitzgerald!) if they’re assigned the task. Which leaves us with forming a small team to hunt these leaks down by going directly to the few people who actually know who the leakers are–the reporters.

So it’s sort of like busting a drug ring–go after the guys at the edge and turn them to get the kingpin.

But hey, who are you gonna listen to–your friendly Hot Air colleague or Hugh Hewitt?

Bryan on June 23, 2006 at 11:26 PM

“Our belief that it did not have any tangible impact has been borne out,” he said. Thus sayeth the all-knowing Lichtblau.
I truly believe that the only tangible impact should be the judicious and righteous exercise of our Second Amendment rights against he and Risen. We are at war and I can easily make a perfectly legal case for the termination of saboteurs by any means necessary. I am not concerned in the least for the martyrdom theory that some of you purport. There are more important issues at stake and the deliberate publication of information that aids the enemy is one of those issues. We are at war. I’m afraid some of you have forgotten that inconvenient truth.

csjd on June 24, 2006 at 1:57 AM

Who would have thought that the two HotAir patrons would conduct such eloquent Lincoln-like debates, about such an important issue? Thank you both, Bryan and Allah.

It is hard to imagine such intelligent and civilized internecine feuds going on at KOS.

Entelechy on June 24, 2006 at 2:25 AM

I disagree, Allahpundit.

The leakers themselves, as well as the editors of the NY Times and the LA Times and Rissen and Licthblau must be prosecuted under the Espionage Act, if not directly under 18 USC 2381 (Treason).

It is not their place to publish classified information, especially during war time. They are neither elected, nor appointed to be arbiters of what shall remain classified and what shall not. The ability to determine and disclose what secrets are to be held lies solely with the Executive Branch, not the media.

Further, their behavior places American lives at risk, and that clearly is *NOT* “in the public interest.”

They, both Times papers, admitted that the practice was legal, hence they are not exposing any illegal activities or wrong doing by the government. Nevertheless, they chose to expose the program, undermining the United States during a time of war, and they are doing it willfully, with malice aforethought.

As Larry Kudlow put it:

The New York Times is blinded by its hatred of George W. Bush. And, because of this, these boneheads compromise the lives of all Americans.

The Gray Lady has become the Queen of Saboteurs.


We have been talking about prosecuting the editors and publishers of the NY Times and the LA Times, as well as the reporters, under the Espionage Act of 1917 (18 USC 793, 794).

The Supreme Court upheld the conviction of Charles T. Schenk for violating the Espionage Act in WWI for distributing pamphlets to draftees urging them to refuse to serve. The words that Justice Oliver Wendell Holmes used is instructive and covers this situation as well.

“When a nation is at war many thing which might be said in time of peace are such a hindrance to its efforts that their utterance will not be endured so long as men fight and no court could regard them as protected by any Constitutional right.” Schenk v. US, 249 US 47, 52 (1919)

The Court recognized that during wartime, war permits greater restrictions on the freedom of speech than during peace time.

The Espionage Act was passed to prevent harm to the United States during WWI by those whose activities which were imimical to our successfully fighting the war. Holmes noted freedom of speech is not unlimited, shouting “fire” in a theater being behavior that is unprotected by the First Amendment.

The key, Holmes noted, is:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

In other words, were the actions of the NY and LA Times such that they created a clear and present danger to the effective prosecution of the war? Did this disclosure (as well as the “busting” of the NSA foreign intercept program also disclosed by the NY Times in December 2005) interfere with the war effort?

A reasonable person would agree that disclosure of such information would indeed cause the enemy to change his behavior to evade interception, and that it was imimical to our successful prosecution of the war.

A reasonable person would agree that until the disclosure of using the NSA to intercept communication and SWIFT to track money used by Al Qaeda, our enemy would be blissfully unaware that we are successfully using these means to obtain information about his activities.

In fact, Kudlow notes that the SWIFT program had successes:

In one instance, the SWIFT program was used to capture a top Al Qaeda operative, Riduan Isamuddin, in Thailand in 2003.

A reasonable person would, therefore, agree that the “clear and present danger” test of Holmes was met when the NY and LA Times published their stories, despite bi-partisan request that they refrain as a matter of national security.

The editors and publishers of the NY Times and LA Times, as well as the authors, should be prosecuted under the Espionage Act, as well as the actual leakers, in my opinion. The MSM must learn that the consequences of violating this US law extends to them, individually, and that they are not immune from the personal consequences if they do.

God help them if the programs they have “busted” by illegally exposing them, cause any Americans to lose their lives. Because if that happens, then they have committed a greater crime against America: Treason.

The punishment for treason is the death penalty.

georgej on June 24, 2006 at 3:15 AM

Article III
Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

How many read that article. More than two? Aid and comfort to their (our) Enemies. There is a civil war going on in our nation, and only one side is fighting.

creative dude on June 24, 2006 at 4:19 AM

I’m with Allah on this. As much as I’d like to see these guys in prison for a good, long time, that’s exactly the fight they want and I’m not inclined to give it to them. It would be way too easy for them to say, “See? SEE?! This is what we’ve been warning about for the past six years. Help! Help! I’m being oppressed!”. The issue then wouldn’t be the criminal charges but the new spin of crusading journalist versus evil fascist government.

If we’re really going to fight these guys and win, not only substantively, but in the court of public opinion, the action is going to have to come from outside the government. So, I had a crazy idea.

Can we, the citizens, sue the Times? Do we have a legitimate case that what the newspaper is doing is something akin to reckless endangerment on a mass scale? I’m dodgy on civil law, but it would seem to me that the Times set itself up almost perfectly for such a thing by saying it knows better about national security than the “experts”, at least in the SWIFT records story.

Jimmie on June 24, 2006 at 9:01 AM

Giving out classified material is a Felony…

The fact that the origional leaker gave this information to a reporter clearly shows that they wanted it diseminated, thus falling into this category…

Now, the LAT, NYT, the reporters and publishers KNEW this was classified information and published anyway, this makes them accomplices, HOWEVER, this is NOT the way to go after them….

What you do is start an investigation going after the leaker, very publicly… and serve the reporters with subpeonas demanding they cough up the leaker… if they don’t they ARE part of a criminal conspiricy to hide the facts in a felony case, and thus, like NIXON (and they’d hate that comparison) guilty of obstruction of Justice…

Make it part of the investigation for the leak, get a case WON where they are forced to give up the source, and these leaks WILL dry up.

Romeo13 on June 24, 2006 at 10:27 AM

Re: the treason issue and punishment…

We blew it with John Walker Lindh. He should have been prosecuted for treason and then properly hanged (or whatever mode of death is now used). Any attempts to prosecute and penalize for treason will doubtless involve a defense attorney using the Lindh case as a precedent.

Bellicose Muse on June 24, 2006 at 11:11 AM

A few stray thoughts occurred to me:

The NYT is known for “outing” security measures without regard to the safety of the country, and for the purpose of embarrassing the administration. It’s a liberal derangement sickness.

Q:—Why isn’t there a whacking great effort on the part of our security operations to head them off, feed them disinformation, and just generally knacker their efforts? Even a few well-placed “heart attacks” wouldn’t go amiss.

Q:—Is it possible that there IS such and effort, and this is a ploy timed to disrupt the money flow of terrorists? If I were Sheikh Looney-Al-Reuter-bin-Jihadi, I’d be dashing for the caves with my loot! We’ve been busted! No more dough shipments until we get some couriers!

—Using the NYT to disrupt the very forces that they suck up to would be such incredible poetic justice, the thought is almost enough to smile and imagine Karl Rove grinning to himself as the terrorist world shudders.

—Forcing Al-Qaeda into a new and untested method of shipping and handling money out in the open would be really tough on them. (Awwww.) And might lead to some great things!



heldmyw on June 24, 2006 at 12:20 PM

I work in the Sears Tower.

When I’m crushed under tons of Sears Tower rubble in a fiery strike by terrorists whose intentions could not be tracked – our failure to ski the slippery slope will make my death even more ignominious than it already will be.

What will the Times say to my widow ? Blame Bush for not connecting the dots and be a rock star/hero ?

moc23 on June 24, 2006 at 12:33 PM

I’m with Bryan.
I dont give a damn about possible martyrdom for journalists. I dont give a damn about them crying “See, See?” Actually we need to “SEE” …See what they’re doing while hiding behind the first ammendment.
(what do the Brits call their secrecy protection program?)
That means protect our freedoms by those who aim to do harm.
It has to stop now. What is next if we look the other way again, because of B.S.
When we killed Zark-owie he was martyred , did that stop us from doing the right thing for our country?
Journalism is now worse than being a used car salesman selling insurance at his night job.

shooter on June 24, 2006 at 12:36 PM

Furthermore, some worry martyrs might be made if we prosecute?
If we dont, then they look upon themselves as F$c*ing heroes.
I’d rather have incarcerated martyrs than actively writing ‘F- heroes’, (for al Qaeda).

shooter on June 24, 2006 at 12:54 PM

And how does Lichtblau know that the terrorists already knew about this program? Did he tip them off personally?

thegreatsatan on June 26, 2006 at 10:42 AM