Consensus emerges: Don’t prosecute the Times

posted at 5:07 pm on June 27, 2006 by Allahpundit

And by “consensus” I mean me, two guys I read regularly, and one other guy whose stuff I enjoy when I remember to look for it.

Andy McCarthy says good luck trying to prosecute a newspaper when there’s a constitutional “moment” to be had for Justice Kennedy in shooting it down. Besides — it’ll only make things worse:

Imagine the media as the winner of a long, bitterly contentious struggle that ends in the Supreme Court. They will have succeeded in turning themselves into martyred heroes. We may, quite justifiably, view the Times and its allies in this cause as aiders and abettors of our wartime enemy. But the history — which they, primarily, will write — will portray them as Defenders of the Constitution.

More consequentially, were the press to win such a battle, it would only encourage more leaking. Now their recklessness (or worse) would bear a judicial imprimatur. Think of it as a Pulitzer Prize … but one backed by the prestige of the Supreme Court rather than the dwindling influence of journalism’s majordomos.

Patterico concurs, and has the good sense to quote me in doing so. And he says it’s not just at the appellate level where a prosecution would run into trouble:

If prosecutors decide to prosecute, it’s ultimately up to a jury of 12 citizens, who must find the defendant(s) guilty beyond a reasonable doubt.

And there’s the rub. Because I strongly doubt that we could find a jury of 12 people to convict.

These issues are so politically polarized that it seems you can’t get people to analyze them with any objectivity whatsoever. Ardent blog readers and commenters know, perhaps more than most, how unreasonable some people can be when you challenge their political beliefs. Reason goes out the window. They’ll deny that the sky is blue if helps them make a political point.

There are some people who are so disenchanted with Bush and his administration that they’d support the publication of almost any article that attacked Bush — regardless of the damage the article might do to the country.

Entirely right, of course. If you think the holdout juror in the Moussaoui death-penalty phase was motivated to nullify, put a liberal on the jury of the Times case and see what you get. You’d sooner see Pat Robertson renounce the cross than a lefty vote to punish the adversary media for anti-Bush activity, however criminal it might in fact be.

So what to do? Jed Babbin works up a lather, then solves the puzzle:

The Attorney General should, forthwith, rescind the limitations on subpoenaing reporters’ testimony in the U.S. Attorneys’ Manual and order the U.S. attorneys to use grand juries to call Risen, Lichtblau, Priest and the others to testify under oath. If they refuse to reveal their sources, they should be held in contempt and jailed until they do. When the leakers are discovered, they should be prosecuted to the fullest extent of the law, regardless of who they are: Senators, staffers, CIA employees and all the rest. Expose them, shame them, and put them in jail where they belong. The duty is yours, General Gonzales. Why aren’t you doing it this very day?

That’s McCarthy’s solution too. Prosecute the leakers, not the Times. Locking up treacherous reporters might give you the warm fuzzies but it doesn’t cork the spigot. Immunizing reporters so that they’re forced to testify at leak prosecutions does, because it leaves them no recourse but to give up their sources. Worst case scenario is they refuse and go to jail for contempt, so that you end up with pretty much the same deterrent effect as if you’d prosecuted them directly. You end up with some martyrdom effect too, of course, but less than if you’d confronted them directly on a First Amendment point. Indeed, as we’re already learning from Howard Kurtz and Dean Baquet, to criticize the two papers for publishing this story is in some quarters to oppose the principle of free speech itself.

Something else. Jim Treacher and I have been e-mailing trying to figure out precisely why it is the “Al Qaeda already knew” defense bugs the hell out of us so much. Patterico helps out here. Aside from the argument being factually wrong, though, I think it grates simply because it shows what straws the left is willing to grab at just to be on the Times’s side in this. They refuse, categorically, to line up with Bush, even if it means half-heartedly defending the exposure of a counterterror program that’s legal and effective. Which I guess brings us back full circle to Patterico’s point about the jury.

By the way, Tony Snow says the White House won’t revoke the Times’s press credentials. Either they’ve got something bigger planned or else they’ve totally pussed out.


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Could a judge just ask for the names of their sources, and then lock them up until they talk? Would that be considered ‘prosecuting’ them? ‘Cause I’m all for that.

Kevin M on June 27, 2006 at 5:18 PM

Allah,

Of course the White House is wimping out. This is an administration that for months now hasn’t even made one move regarding the telephone-surveilance program. They’re unlikely to prosecute the leakers here either, let alone punish a newspaper like the NYT by stripping it of their credentials.

We should continue to badger the administration on this point, though. This isn’t merely a reaction to the media anymore. I think it’s becoming a legitimite political issue ala the Ports fiasco. Because the failure of this White House to prosecute leakers is a serious, serious national security flaw. And unless the White House shows that it’s willing to lead on the issue and listen to the people, it’s going to bear the brunt of our anger eventually. Yes, we’ll blame the media and the leakers, but if all our anger amounts to nothing, then ultimately, the White House is to blame.

They MUST DO SOMETHING.

Sydney Carton on June 27, 2006 at 5:22 PM

They pussed out

Capitalist Infidel on June 27, 2006 at 5:27 PM

I won’t ever rule out them “pussing out.”

Hoodlumman on June 27, 2006 at 5:28 PM

I expect Bush would not do a thing…LOL…Tony Snow is a sly fox, and he meant every word he said!!!!…

BUT…the House can still call a hearing to put NY Times under oath.

Will they?…This will be the best time to crack down the RINO! The moment of glory! Will they give up this opportunity?

Stay tuned.

easy87us on June 27, 2006 at 5:36 PM

I don’t thinking they’re “pussing out”. I think they’re getting all their ducks lined so we all can have one big bang of a summer.

Maybe nab a few leaky senators while they’re at it. Right Senator Rockefeller? Right Senator Durbin?

darwin on June 27, 2006 at 5:38 PM

I smell a “blind swordsman” stunt right out of the heart of Sun Tzu.

Kid from Brooklyn on June 27, 2006 at 5:48 PM

I vote for “pussing out.” Not that there’s anything wrong with that. Fact is, there are serious war issues, serious issues with protecting the NSA program (what’s left of it), and so on. There are only so many major fights you can undertake at the same time.

On the other hand, if they’re not moving full speed ahead on prosecuting the leakers, you can kiss it goodbye.

Attila (Pillage Idiot) on June 27, 2006 at 5:51 PM

Jim Treacher and I have been e-mailing trying to figure out precisely why it is the “Al Qaeda already knew” defense bugs the hell out of us so much. Patterico helps out here. Aside from the argument being factually wrong, though, I think it grates simply because it shows what straws the left is willing to grab at just to be on the Times’s side in this.

USA Today, June 18th, 2006: Terror funding shifts to cash

That’s not to say that they knew exactly how the U.S. government might be spying on their financial transactions, but it does show that they knew that cash was harder to trace and safer to use.

Mark Jaquith on June 27, 2006 at 5:52 PM

Well, sure. There’s a reason Bin Laden uses messengers instead of cel phones. But why make it easier for them?

Allahpundit on June 27, 2006 at 5:55 PM

Sooo… your consesus is that because the Administration MAY loose, its not worth the fight???

Yep… NYT just won… kinda like North VietNam did, by convincing the opponent not to even fight…

Sad…

Romeo13 on June 27, 2006 at 5:56 PM

Right, Romeo. It’s just like Vietnam.

The consensus is that you accomplish more by focusing on the leakers.

Allahpundit on June 27, 2006 at 5:58 PM

A lot of people who are strongly against the war (and Bush) like me, think the NYT really jumped the shark with this–no rationale in terms of anything illegal being done or insidious privacy erosion for citizens. Agree that going after the Times is a losing proposition. Going after the leakers is the better strategy; what is puzzling is the question of why is leaking so rampant? Or has it always been so, this is simply more high profile given the war/national security context? Just the other day there was a report of Gen Casey’s plan for troop withdrawal; didn’t hear a denial of any sort–one would think this sort of info would have a very narrow cc list. I dunno, maybe I am naive.

honora on June 27, 2006 at 6:00 PM

Why, oh why can’t the Justice Dept find anyone who is leaking this stuff?? Could it be that their efforts in rooting out the traitors are “half-hearted”?

MCPO Airdale on June 27, 2006 at 6:05 PM

Basically agree with the consensus, you can’t prosecute the whole paper but you can find out who is leaking information. It’s just a question of whether the reporters would rather go to jail for 18 months or testify to a grand jury, but either way that should make them think twice about printing such a story in the first place.

Disappointed that the Times press credentials weren’t revoked, as I have a feeling that the “pussed out” explanation applies. Hope I’m wrong, but bet I’m not. We’ll know for sure if they refuse to pursue the leakers as well.

thirteen28 on June 27, 2006 at 6:11 PM

A consensus of pundits, eh?

They will have succeeded in turning themselves into martyred heroes.

I guess this could be the rationale to excuse any and all treachery. That first one prosecuted would be the “martyr”. Failure to prosecute the traitor emboldens more traitors. This leads to defeat, but at least we can be proud that we didn’t create any martyrs.

Prosecute one, you might have a martyr…flood the zone and prosecute several and no martyrs are created. If Nixon had prosectuted Kerry, Fonda and those creeps, we wouldn’t have had to sweat out a Kerry Presidential campaign 30 years later.

Perchant on June 27, 2006 at 6:13 PM

I guess this could be the rationale to excuse any and all treachery.

Nope. Only where the martyr has a significant constituency.

Which they do, alas.

Allahpundit on June 27, 2006 at 6:15 PM

“Going after the leakers is the better strategy; what is puzzling is the question of why is leaking so rampant?”

It’s called BDS, Bush Derangement Syndrome. There are certain members of the left, well okay, the majority, that will do anything to harm Bush and his administration. ANYTHING. Even to go so far as to jeopardize national security and put American lives, especially those of our military at risk. To them, even siding with butchering, women and children killing radical islamists is better than letting Bush doing what is necessary for the defense and betterment of the United States.

Their excuse is “it’s in the public interest”. Yeah Keller……my excuse is you can kiss my ass.

darwin on June 27, 2006 at 6:23 PM

Could be the Times disclosed this because it is concerned those involved in the “Food for Oil” corruption and other sleazy deals such as the Clinton era 1990s BoNY $9 billion money laundering scandal will be caught in the net. Marc Rich is still active, Soros has his cash hidden away in Curacao, Oscar Wyatt and Maurice Strong are under investigation…might be the Times is attempting to protect some heavy hitters in the liberal establishment who shuffle large sums of cash around the world.

Essex on June 27, 2006 at 6:33 PM

darwin: well if you’re right, game over. Let’s hope not. I’m not a media maven by any stretch of the imagination, but I think leaking is a long standing practice, but when did it become so wanton and irresponsible? And more to the point, commonplace? The latter begat the former I suspect–”everyone does it” etc.

Domestic policy has been inseparable from domestic politics–the big story with Katrina was how badly would it hurt the president vs the governor vs the mayor. Same thing with Social Security–not what will work, but what is the best spin for the Republicans or the Democrats. Suppose foreign was the next logical step. Yikes.

honora on June 27, 2006 at 6:35 PM

I truly believe this is a case of not what’s the “best spin”, but what’s the best way to hurt Bush. Simply ask yourself; Would the NY Times have printed stories exposing classified programs that the U.S. government was using to not only catch terrorists, but protect American civilians and military if a democrat was President??

darwin on June 27, 2006 at 6:55 PM

The New York Times and their pack of wolves are unconcerned with the global war on terrorism; they’re at war with President Bush.

If we don’t win this war, we may never again.

doingwhatican on June 27, 2006 at 6:56 PM

I say prosecute. Let’s make “heroes” out of them for the libs. Someone in the Justice Dept. has to make a line in the sand. Bush is in his 2nd term anyway and I don’t think that going after traitors is going to hurt him one bit. In the words of that great philosopher, John Kerry, BRING IT ON!

Mojave Mark on June 27, 2006 at 7:37 PM

This leak will hurt terrorist financial tracking but it will hurt joint programs with other countries even more.

Which is another twisted logic, among so many others, on the part of the BDS-liberals – “Don’t go it alone but we’ll expose joint programs because the public has a right to know”. Never mind that they’d protect all of us, regardless of syndrome or affliction.

Entelechy on June 27, 2006 at 9:00 PM

No one, period,is gonna touch the top elite liberal Holy Chalice called N Y TIMES!

The librals and the RINOs will all come to the call to save NY Times..

That, sadly, include President Bush. I can tell from Tony Snow’s soft touches on explaining how “bad” NY Times was…

“if they decided to assume the resposibility of determining what shoud be classified and what should not, may be they ought to accept the obligation….blah blah blah..”

Man, even President Bush himself does not have this sort of respect and clout.

easy87us on June 27, 2006 at 9:10 PM

As I see it, the President has the Traitorous Times by the short hairs. Public opinion is so against the liberal rags right now that he could justify any prosecution of those losers and get away with it.

There are other considerations though. Bush might still have Gonzales mad at him over the Jefferson debacle. That would certainly slow thongs down. Also, perhaps the Slimes has more leaked information which W. wants kept secret. It is unfortunate that our commander in chief is known for preferring compromise over taking direct action…

Time will tell, but the liberal media cannot be happy at the level of outrage which Americans are leveling at them today.

DannoJyd on June 27, 2006 at 9:45 PM

DannoJyd, I give up daydreaming long time ago. There is no conservative Bush and there is no tooth fairy.

However, Congress can still call for a hearing and can still put Keller under oath.

May be the RINO would give the conservatives the “secure the border/enforcement” bill to exchange for letting NY Times go?

Isn’t America great?

easy87us on June 27, 2006 at 11:30 PM

Send their sorry asses to GiTMO and let them cover the story from the inside.

Khyber Pass on June 28, 2006 at 12:27 AM

This very thoughtful article explains that “there is a better way” and “enjoy the show”. Ideas for reflection:

http://news.bostonherald.com/columnists/view.bg?articleid=145655

Entelechy on June 28, 2006 at 12:36 AM

I’m not calling for prosecuting an entire newspaper (i.e., a “corporation”) for violating the Espionage Act. I’m saying that 4 individuals who happen to be employees of the paper shold be indicted and tried.

Those individuals are: Arthur Sulzberger, Bill Keller, James Rissen, and Eric Lichblau, as individuals.

The “corporation” didn’t break the law so much as the decision makers who approved publication which violated the Espionage Act and the reporters who were the contacts and who wrote the story.

I doesn’t touch upon “freedom of the press” because these individuals are not above the law.

georgej on June 28, 2006 at 1:23 AM

Why, oh why can’t the Justice Dept find anyone who is leaking this stuff?? Could it be that their efforts in rooting out the traitors are “half-hearted”?

No, it’s that we are all very “leak prosecution weary” now. the leak investigation into who “outed” valerie plame has totally made people complacent in leak investigations. it’s not that they don’t care, it’s just that we’ve ALREADY had two years or so of “leak investigations” and it has grown old and tired. Unfortunately, the “cia outing leak” that was investigated had no bearing on national security unlike the ones that the NYT has published. Don’t expect anyone to investigate this leak – the dems are pretty quiet about this.

pullingmyhairout on June 28, 2006 at 9:23 AM

One more thought: the NYT is soooo arrogant to assume that THEY have the last word on what should be considered “classified.” sheesh.

pullingmyhairout on June 28, 2006 at 9:25 AM

truly believe this is a case of not what’s the “best spin”, but what’s the best way to hurt Bush. Simply ask yourself; Would the NY Times have printed stories exposing classified programs that the U.S. government was using to not only catch terrorists, but protect American civilians and military if a democrat was President??

darwin on June 27, 2006 at 6:55 PM

You mean like the Pentagon Papers??? (Hey, hey, LBJ how many kids did you kill today…)

honora on June 28, 2006 at 9:34 AM

There is another way – a nongovernmental way.

When one yells “Fire” in the proverbial crowded theater, one is subject to arrest and suit for reckless endangerment. The NYT might be subject to a class action suit for reckless endangerment of Americans because of its pattern of disclosures obviously harmful to American security. Therefore, let’s file class action suits against the NYT. I am not an attorney, but I think that just as freedom of speech is bounded by a notion of responsibility, so must be the freedom of the press.

chsw

chsw on June 28, 2006 at 10:04 AM

New Bumper Sticker: Support free speech! Burn the Times!

Dread Pirate Roberts VI on June 28, 2006 at 10:06 AM

The NYT might be subject to a class action suit for reckless endangerment of Americans because of its pattern of disclosures obviously harmful to American security.

Good idea! any attorneys out there who can comment on this?

pullingmyhairout on June 28, 2006 at 10:10 AM

It’d be nice if Keller & co. wound up at the top of the IRS’ audit list.

Iblis on June 28, 2006 at 10:17 AM

Honora, how many conservatives were chanting that?
I see your point. The liberals will eat their own children (or president) if they do not tow the liberals agenda. The liberas do not seem to care about consequences of actions.
LBJ was caught in a hard place. Once he became president he got to see first hand what would happen if he pulled all the troops out. Instead he tried to spin the war (poorly) and placate his base (once again, poorly)

Wyrd on June 28, 2006 at 11:06 AM

Good to see George Bush wagging a finger at NY Times. Even better would be to see the smug come off their faces. Best of all would be to see George Bush heed Peter King (as gringo-cited):

Rep. Peter King (R-NY) wants the long-time ally of CBS and Dan Rather prosecuted for its latest divulging of national security secrets. King, the Times reports(from the shadows of page A12) is ” calling on the attorney general to begin a criminal investigation and prosecution of the New York Times, its reporters, the editors that worked on this and the publisher.” Is Team Bush listening? George Bush has wagged a finger at the Times. Will he do anything more? FYI: For any ACLU-admirer who thinks Peter King (Chairman, House Homeland Security Committee) is just being a “Bushbot,” this ex-Marine is very critical of George Bush on the U.S. border chaos. However, Rep. King opposes sedition, treason and giving aid and comfort to Islamic fanatics who are very likely planning something bigger and deadlier than 9.11. King, outspoken New Yorker, opposes such aid to the enemy even when provided under cover of “privacy concerns” or during the growing economic and circulation problems of the NY Sulzberger Times.

ps. Even if one thinks that hauling Times hirelings before a grand jury in order to flush out the leakers is better than “prosecuting” the Times, the fact remains: the ball is in the court of George Bush. What will he do with it?

gringoman on June 28, 2006 at 11:23 AM

Who to investigate and prosecute? And when and why?
The obvious place to start is the criminal activity by the [currently unkown] leakers. As the New York Times has already said, leaks which harm our security deserve high priority and thorough investigations.
As part of those investigations it will be necessary to demand information from the identified reporters. If newspapers spend a significant amount of money to interfere in the legal process, this could lead to another criminal prosecution of the management of the New York Times — for failure to conform to the Sarbanes-Oxley requirements in that the management did not inform shareholders of the liabilities they anticipated [or should have anticipated] when they approved of publishing materials designed to lead to legal confrontations.
One can only live in hope.

Lamonte Thomas on June 28, 2006 at 11:53 AM

Does this mean the necktie parties are off, too?

Damn.

MostlyHarmless on June 28, 2006 at 6:27 PM

Wyrd: agree with your LBJ remarks. One could make the argument–hell I’ll make it, that the Times went after LBJ/Vietnam as vigourously as they are W/Iraq. Which is perhaps off point….or on point countering the notion that the Times is particularly vicious towards W. It would take a lot to come close to how the media treated LBJ and Nixon.

Hey I’m off on vacaction, the next media I hope to be exposed to is “Snakes on a Plane!!” Happy a great 4th Wyrd!

honora on June 29, 2006 at 10:02 AM