Saturday, September 30, 2006

Law Prof: Indict the NY Times 
Law professor Henry Mark Holzen, professor emeritus at Brooklyn Law School, lays out the case.

It is an article of faith on the Left and among its fellow travelers that the Bush administration stole two elections, made war on Iraq for venal reasons, tortured hapless foreigners, and conducted illegal surveillance of innocent Americans. A corollary of this mindset is that the press, primarily the Washington Post and The New York Times, has a right, indeed a duty, to print whatever they want about the administration—even if the information compromises national security.

Not true. The press is not exempt from laws that apply to everyone else. The press is not exempt from laws protecting our national security. The New York Times is not exempt from the Espionage Act, as we shall see in a moment.

Overall, it's pretty good. I'm not a lawyer, by any means. But I do have a couple of quibbles:

1.) Professor Holzen makes much of the fact that Congress created the NSA in arguing that the NSA acted constitutionally. This is true. But Congress created all kinds of adjuncts to the executive branch. It is perfectly possible for a bureaucracy created by Congress to act contrary to the intent of Congress. Ask anyone who raises teenagers. It is also perfectly possible for a body created by Congress to act unconstitutionally. The argument is meaningless. Either the NSA's wiretapping passes constitutional muster, or it does not. Whether it was the brainchild of Congress or the Executive branch is not relevant.

At any rate, even if it were an executive branch creation, Congress has been funding it for years - providing its tacet endorsement in so doing.

Professor Holzen overstates his case here.

2.) Professor Holzen understates his case elsewhere. In rightly pointing out that the Ellsberg decision held that the United States did not have sufficient cause to warrant an a priori injunction against publishing in that particular case, he misses an important - indeed, vital - fact that buttresses his case: Justice White's decision stated that he would specifically support an after-the-fact prosecution of the Times under existing secrecy laws.

This is vital because here, the Supreme Court specifically devastates the argument that journalists enjoy special protection from the laws that govern everyone else. It's not the only time the USSC has done that - the notion is about as thoroughly settled as one can be in case law.

Even further, the USSC, courtesy of Justice Byron "Whizzer" White's decision, specifically upholds the constitutionality of the Espionage Act, and validates Uncle Sam's authority to safeguard critical classified information by prosecuting any entities who violate it -- including news outlets.

Splash, out


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