Monday, January 02, 2006

Q and A 
Crossposted from PressThink, where someone posting as "village idiot" responds to my last post below with a series of excellent questions for me:

Do you disagree that the law is now settled (Pentagon Papers) that Newspapers are free to legally publish whatever they discover during the course of their duties?

Me: Hell, no. The Pentagon Papers case established no such thing. The court specifically excluded a scenario in which a hundred young men would die from disclosure of classified information "whose only offense was that they were 19 years old with low draft numbers." The consensus in that particular case was that the national security damage was largely conjectural. A deductive reasoning process would lead one to conclude that the court left open a recognition of a legitimate interest of the government to impose prior restraint in some circumstances.

Justice White, for example, writes such in so many words, in his separate opinion supporting the newspapers in that particular case:

“I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations.

Me: White recognizes that the government's burden is heavy in such a case, but specifically allows for it with reference to ongoing "plans and operations." It seems pretty clear to me that the NSA monitoring would qualify as an ongoing operation, and even the defendents in the Pentagon Papers case were careful to differentiate their particular case from a situation in which ongoing and specific operations were compromised.

So much for the "free to publish whatever they discover" fantasy.

But it doesn't stop there. Although Justice White did not want to grant an injunction to the government in this PARTICULAR instance, he did go on to call for the criminal prosecution of the New York Times and Washington Post under specific statutes.

White specifically cited section 793(e) of 18 U.S.C., on unauthorized possession of a document relating to the national defense, as well as sections 797 (graphical representations of military installations) and 798 (code and cryptographic information), and wrote: “I would have no difficulty in sustaining convictions under these sections on facts that would not justify…the imposition of a prior restraint.”

So while the government's burden to impose a restraint on publication is indeed heavy, the press does not have a blank check, under the first amendment, to compromise national security and endanger the safety of thousands in pursuit of a scoop. Nor are they allowed to violate the law by obtaining classified documents in so doing. In that respect, journalists are under exactly the same law as everyone else. As it should be.

Do you disagree that the 'national security' criteria (as applied to this issue by the Times) are largely a form of self-regulation.

Me: I wouldn't trust the New York Times or any other newspaper to "self-regulate" the contents of an employee refrigerator. An unaccountable institution such as the New York Times cannot meaningfully self-regulate. Occasionally, and industry can band together and create an independent self-regulatory body, such as the National Association of Securities Dealers. But in the absence of such a body, with actual enforcement authority, the brand of "self-regulation" to which you refer is meaningless, amounting to quite the same thing as no regulation at all.

I think what we see today is more a matter of prosecutorial discretion than self-regulation. As I wrote above, I don't think there is a particular interest in criminally prosecting the NY Times or its employees, based on what I now know. I do believe that a criminal investigation into the leak is in order, and that the reporters could properly be compelled to testify as to the identity of the leakers, or risk being found guilty of either contempt of court or obstruction of justice.

I do not believe that a reporter's obligation to protect a source extends to covering up a federal crime and stonewalling an investigation. They should hold out until a court directs them to, and the courts can weigh the issue, but the courts are independent of the Executive branch. If a court directs them to answer the prosecutor's question, like the rest of us, they must answer, completely and truthfully. Reporters, again, should be covered by the same laws that cover everyone else.

Do you see a special role for the press in a democracy

Me: Yes. A role. Not a "special role." Unless newspaper staffs also qualify for the Special Olympics. Some of their coverage makes me wonder.

And the necessity for some form of immunity to make this role effective?

Me: No. You're reporters. Not ambassadors. Get off your high horses.

If you do, what is your prescription for resolving the tension between that special role and the for-profit motive?

Me: News outlets are bound by the exact same laws that cover the rest of us, with regard to outing covert agents and revealing classified information. Simultaneously, though, there should be certain defenses - with the burden of proof on the news organization - in rebuttal:

1.) The defense could show that the classified plan or op revealed clearly violated the law. Illegal actions cannot be permitted the same classification protections as legal actions.

2.) The defense could show that the information revealed was improperly classified. That is, the government classified the information not to protect National Security, but to save the executive branch from embarrassment.

And again, I would be open to strict liability for news organizations who do choose to reveal classified information. If that information results in the failure to detect a terrorist attack, for example, and it can be demonstrated that had the intelligence gathering procedures not been compromised by exposure in the press, such an attack could likely have been prevented, and the plaintiffs can show a reckless disregard for public safety, that the news organization that published the information, along with the leakers, be required to help make the victims whole. Just how much of a contribution the news organization made to allowing a terror attack to become possible would be fact-dependent, and up to a jury.

Case in point: There is currently a Spanish Language Radio station in San Antonio that is taking calls and publishing the movements of Border Patrol agents in the area. If an agent is ambushed and injured or killed based upon this information, I would support a strict liability against the radio station, for its reckless disregard of public safety and for its aiding and abetting a crime.

Splash, out


Comments: Post a Comment

This page is powered by Blogger. Isn't yours?

Site Meter

Prev | List | Random | Next
Powered by RingSurf!

Prev | List | Random | Next
Powered by RingSurf!