COUNTERCOLUMN: All Your Bias Are Belong to Us

I haven't written about it, but I'm assuming you are familiar with the decision of the New York Times to publish the details of the government's efforts to track the movements of Al Qaeda finances through the international banking system.

This decision clearly causes substantial and irreparable harm to the security of the United States and our allies, and violates federal law in the process.

Bill Keller's defense of the decision is here.

But nowhere in his reasoning does he even acknowledge that the people have a legitimate and compelling interest in keeping our legal clandestine surveillance activities in a time of war from becoming public knowledge. Indeed, shockingly, this obtuse cretin tries to drag conservative bloggers into the muck with him by accusing us of drawing further attention to the story by criticizing him).

And of course, nowhere in his reasoning does he acknowledge the possibility that his paper acted in violation of the laws of the United States. As Glenn Reynolds, himself a law professor, points out, Keller fundamentally misconstrues the law, mistaking the freedom of the press in the first amendment as an institutional freedom, granted to the media industry. It is not. Nor do the statutes and legal precedent allow for the publishing of classified information when such actions cause substantial harm to the national security interests of the United States. I am indebted to Mr. Hugh Hewitt for pointing out the precedent established by the Near v. Minnesota case, decided by the U.S. Supreme Court in 1931.

The objection has also been made that the principle as to immunity from previous restraint is stated too [716] "broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to "previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases: "When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their "utterance will not be endured so long as men fight, and that no Court could regard them as protected by any "constitutional right." Schenck v. United States, 249 U.S. 47, 52. No one would question but that a government might prevent actual "obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location "of troops.

And I have written in this space before about the Ellsberg case - a case frequently understood among undereducated journalists.

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.

And here's where Keller hangs himself - he relies on the absence of an a priori restraint to inoculate himself and his paper against section 793 and related statutes, when no prior restraint is necessary for an indictment or conviction.

The people have a compelling interest in protecting state secrets from publication in irresponsible newspapers. Not just the Administration, but all future Administrations, Democrat and Republican, and the people. And by "the people," in this case, I believe I can write in the broadest sense of the term - to include not just the people of the United States, but civilized people all over the world, who benefited from the surveillance program rendered useless by the New York Times.

The U.S. Attorney General should seek an indictment against Riser, Lichtblau, Keller, and/or the New York Times itself under federal state secrets statutes.

Further, there should be an establishment of strict civil liability against newspapers for damages or deaths resulting from future strikes which could have been prevented but for the decision of newspaper editors to publish the details of our surveillance programs.

Now that any future terrorist strike that relied in any way on telephone calls from overseas or on money transfers from suspected terrorists abroad will fall into that category, the New York Times and its conspirators, having published the telephone surveillance story and the banking records story alike, had better have some healthy umbrella coverage.

Splash, out

Jason