NYT and State Secrets

[George Gervin's Afro]

Reports are out this morning that the FBI has foiled a terrorist plot to bomb the Holland Tunnel in NY City and send a deluge of water into parts of Manhatten.


Most disturbing is this terrorist action here in the US has all the characteristics of having been stopped using the very same programs the NY Times has crippled in its mindless and treasonous attacks on the Bush administration.

Monitoring communications includes monitoring the overseas access to internet chat rooms. One can see the now exposed monitoring of the terrorists’ finances and NSA monitoring of overseas terrorists in the information being provided - meaning they may have had to act now because the terrorists were adjusting their tactics:


The tactical support is going to come through communications. The plot could have easily been initially detected when this “lone wolf” made contact with the Jordanian terrorists who could have been under NSA surveillance. Since the FBI is involved, the next logical sequence of events would be the NSA providing the lead to the FBI who then took it to the FISA court to make the person the target of surveillance here in the US once they decided it was a serious enough of a threat. It seems clear the authorities had to move before they wanted to for some reason or another:


U.S. agents were allowed to take part in the interrogation of Andalousli, a source said.

There were three ongoing investigations that were impacted by the NY Times’ traitorous exposure of the SWIFT program which was used to track terrorists cells around the world (not here in the US, by the way). It is highly possible the terrorists were adapting and disappearing from the radar screens of the international law enforcement agencies, so action now was required. The word ’scrambling’ is not something we want to see when dealing with terrorist threats.

Is the NY Times a danger to Americans in its lust for money and partisan payback on Bush? I’ll let you decide whether they think so based on the plans of these terrorists:


The efforts to try and play this down by anyone, but especially by the left, is abhorent. Picture you and your family driving through a tunnel or under a bridge when terrorists try this kind of action. Even localized death and destruction is unacceptable losses. If NY City needed a reminder of the stakes the NY Times is playing with (their Pulitzers vs NYC lives) there is no better example. Just imagine if this had slipped by because we had been blinded to the terrorist’s actions.

So, now we know why NY Rep Peter King was so angry at the NY Times when they published the SWIFT story. And we have more proof that authorities may have had to move quicker than they wanted to (losing leads to other terrorist support chains) due to the NY Times:


We can all thank the egomaniacs at the NY Times for this mess.

And, now, CNN is reporting this group of international terrorists had been under investigation for a year or more, meaning this definitely predates the NY Times SWIFT and NSA stories.


That means the NY Times stories exposing our anti-terrorism defences did threaten this ongoing investigation. We have the NSA monitoring the overseas communications (and probably the overseas chat room), and then we have the FBI following the leads to the jihadists here. And there was financial tracking from elements in Jordan. How is the NY Times going to dismiss the fact this investigation was definitely at risk of being lost through their carelessness and cavalier at udes?

I hope Sulzberger and Miller rot in .

And I hope all the unecessary war s rot in right next to bush who is ultimately responsible for 50,000 dead innocent iraqis and 2500 + dead GIs..

[Yonivore]

And I hope all the unecessary war s rot in right next to bush who is ultimately responsible for 50,000 dead innocent iraqis and 2500 + dead GIs..

That's a reasoned response. Apparently, you're not following this thread.

[FromWayDowntown]

And, along that same line of reasoning, let me add some thoughts regarding the Supreme Court's actions during a time of war. Referring to The Los Angeles Times column by Boalt Hall Professor John Yoo on the Supreme Court's Hamdan decision: "The high court's Hamdan power grab." Yoo writes:

What makes this war different is not that the president acted while Congress watched but that the Supreme Court interfered while fighting was ongoing. Given its seizure of control over some of society's most contentious issues, such as abortion, affirmative action and religion, maybe the court's intervention should come as no surprise. But its effort to inject the Geneva Convention into the war on terrorism — even though the treaties do not include international conflict with non-states that violate every rule of civilized warfare — smacks of judicial micromanagement. The Supreme Court has never before imposed its preferred interpretation of a treaty governing warfare on the president during war, and Geneva has never been understood to give enemy combatants rights in our courts.

The court displays a lack of judicial restraint that would have shocked its predecessors. In World War II, the Supreme Court established precedents directly to the contrary. To evade these previous rulings, the court misread a law ordering it not to decide Guantanamo Bay cases, narrowed the very same authorization to use military force that it had read broadly just two years ago, ignored centuries of practice by presidents and Congress on military commissions and intruded into the executive's traditional national security prerogatives. Justices used to appreciate the inherent uncertainties and dire cir stances of war, and the limits of their own abilities. No longer.

Quoting John Yoo as being dissatisfied with the Hamdan decision is like quoting a police officer who is upset that his apprehended suspect wasn't convicted. Professor Yoo is, quite likely, the person responsible for formulating the Administration's arguments concerning the manner in which the Gitmo prisoners are held and handled. Of course he thinks the decision is wrong -- the Court rejected his argument!!

Here's at least one equally-credentialed commentator who thinks that the Court got it right legally and from a policy standpoint, while doing nothing that is harmful to the President's ability to prosecute this war:

Hamdan as a Democracy-Forcing Decision

JB

The key to understanding Hamdan is that the Court did not tell the President that he could under no cir stances create military tribunals with very limited procedural guarantees (in this case, without any right to know what the charges are or the right to know what evidence is being used against you). Rather, the Court told the President that under Article 36 of the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions, he could not do so. That is because Article 36 of the UCMJ requires that the rules for military commissions be roughly the same as those for courts martial (which generally are used for offenses committed by our own soldiers). The UCMJ also requires that military commissions comport with the laws of war, which include the Geneva Conventions. Article 3 of the Geneva Conventions, in turn, requires that people like Hamdan be tried by "regularly cons uted court[s] affording all the judicial guarantees . . . recognized as indispensable by civilized peoples." As Justice Kennedy's concurrence points out, the latter requirement dovetails to some degree with the UCMJ's requirement of uniformity between what we do for our own soldiers and what we do for people like Hamdan. The courts have to be regularly cons uted, i.e., they can't be special purpose fly-by-night courts with their own made up procedures, and the procedures have to comport with basic guarantees of fairness, as, one presumes, our court martial system does.

The reason why the President is bound by these requirements is because Congress passed the UCMJ and because the UCMJ uses the laws of war-- which include the Geneva Conventions-- as a benchmark for procedures in military commissions. So when Congress acts under its cons utional authority to regulate military justice, as it has throughout the country's history, the President must abide by those regulations. Presumably, then, the Court has rejected the Article-II-on-steroids theory that John Yoo and others have offered-- that Congress may never interfere with the President's views about how best to run the military (even and including Presidential decisions to torture detainees, which was the subject of the infamous OLC torture memo). Hamdan holds that the President may not disregard the UMCJ even if it limits his discretion regarding how to deal with persons captured on the battlefield.

But note: If Congress decides to alter the UCMJ and override the Geneva Conventions, the President can have his military tribunals with procedures as unfair as he wants. But that would require that Congress publicly decide (1) that it no longer wanted to abide by the principle of uniformity announced in the UCMJ, (2) that it no longer required that military commissions abide by the laws of war, or, finally, (3) that Congress no longer considered the Geneva Conventions binding on the United States. Taking any of those steps is possible-- particularly the first two-- but doing so requires that Congress make a public statement to this effect and pass new legislation. The President, in turn, can withdraw the United States from the Geneva Conventions, but for political and military reasons alike, there is almost no chance that he would do that.

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way. It is possible, of course, that with a Congress controlled by the Republicans, the President might get everything he wants. However this might be quite unpopular given the negative publicity currently swirling around our detention facilities at Guantanamo Bay. By forcing the President to ask for authorization, the Court does two things. First, it insists that both branches be on board with what the President wants to do. Second, it requires the President to ask for authority when passions have cooled somewhat, as opposed to right after 9/11, when Congress would likely have given him almost anything (except authorization for his NSA surveillance program, but let's not go there!). Third, by requiring the President to go to Congress for authorization, it gives Congress an opportunity and an excuse for oversight, something which it has heretofore been rather loathe to do on its own motion.

I repeat: nothing in Hamdan means that the President is cons utionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President's possible overreaching. Given this Administration's history, that's not necessarily a bad thing.

Balkin or Yoo?

I challenge anyone to point to a time when the Supreme Court has acted in such a manner as this.

The Youngstown Steel Seizure cases come to mind.

[George Gervin's Afro]

That's a reasoned response.

As was wishing the author's of NY Times article to rot in .

[FromWayDowntown]

That's where your premise fails.

It's not perfectly legal to report on national secrets. There's a law against it.

The New York Times did worse. They reported secrets they merely thought might be abused -- without providing any proof that they were.

In an earlier post, I agreed that the government had no authority to exercise prior restraint on the media; however, the media had no authority to violate the law either.

But then you create a complete and utter logical fallacy -- if the program is illegal, it can't be reported upon because it is deemed to be a national secret; but the program won't be deemed to be illegal until it is reported, which won't happen because it's a national secret.

That's exactly my premise, though I'm hardly surprised that your objective self finds that premise to be unconvincing.

It strikes me as bizzare beyond bizzare to claim that there is some impediment to reporting about "national secrets" that run afoul of the law. I'd be interested in seeing authority to say that reporting an illegal program that is deemed secret by the sitting administration is somehow treasonous. Not Yonivore on Everything; not some like-minded blogger -- real authority like a law or a court decision reaching that conclusion.

[Yonivore]

Balkin or Yoo?

I think the President would most closely identify with Balkin on this subject. I believe the administration is asking Congress to change UCMJ in order to accommodate the court's concern.

The Youngstown Steel Seizure cases come to mind.

Which the court cited in the Hamden decision. Good eye. Any others?

[George Gervin's Afro]

But then you create a complete and utter logical fallacy -- if the program is illegal, it can't be reported upon because it is deemed to be a national secret; but the program won't be deemed to be illegal until it is reported, which won't happen because it's a national secret.

That's exactly my premise, though I'm hardly surprised that your objective self finds that premise to be unconvincing.

It strikes me as bizzare beyond bizzare to claim that there is some impediment to reporting about "national secrets" that run afoul of the law. I'd be interested in seeing authority to say that reporting an illegal program that is deemed secret by the sitting administration is somehow treasonous. Not Yonivore on Everything; not some like-minded blogger -- real authority like a law or a court decision reaching that conclusion.

Simply stated it's having it both ways. That way you can bash the 'liberal' media and score political points with your base. A win -win for the Republicans

[FromWayDowntown]

I think the President would most closely identify with Balkin on this subject. I believe the administration is asking Congress to change UCMJ in order to accommodate the court's concern.

I doubt that. Yoo is the advocate for the unified executive and has crafted the frequently-failing arguments that the Administration has used in defending its means of prosecuting this war. If the President identified most closely with Balkin, he made a very curious decision by enlisting Professor Yoo to express those notions, since Balkin and Yoo are largely not in agreement on these Cons utional issues.

Which the court cited in the Hamden decision. Good eye. Any others?

Is it not sufficient precedent until its happened 3 or 4 times? For crissakes, it's not as though this is a matter that has recurred with any great frequency in the nation's history -- indeed, that's part of the reason why Hamdan even went before the Supreme Court.

[Yonivore]

But then you create a complete and utter logical fallacy -- if the program is illegal, it can't be reported upon because it is deemed to be a national secret; but the program won't be deemed to be illegal until it is reported, which won't happen because it's a national secret.

That's exactly my premise, though I'm hardly surprised that your objective self finds that premise to be unconvincing.

Who made the press a part of the judicial system?

The leakers in the NSA have avenues to report illegal activity through the Department of Justice and their own agencies, as well as Congressional oversight committees. There is nothing mentioned in any of the articles that these traitors availed themselves of those avenues before leaking it to the press.

It strikes me as bizzare beyond bizzare to claim that there is some impediment to reporting about "national secrets" that run afoul of the law.

There's no evidence any of these program did run afoul of the law. There is, in your own words, much disagreement over whether or not any of the leaked programs violated any laws.

I'd be interested in seeing authority to say that reporting an illegal program that is deemed secret by the sitting administration is somehow treasonous. Not Yonivore on Everything; not some like-minded blogger -- real authority like a law or a court decision reaching that conclusion.

You're characterization of the program as being "illegal" notwithstanding, I give you Justice Byron White in his opinion in the Pentagon Papers case:

[T]erminating the ban on publication of the relatively few sensitive do ents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its cons utional en lement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way.

When the Espionage Act was under consideration in 1917, Congress eliminated from the bill a provision that would have given the President broad powers in time of war to proscribe, under threat of criminal penalty, the publication of various categories of information related to the national defense. Congress at that time was unwilling to clothe the President with such far-reaching powers to monitor the press, and those opposed to this part of the legislation assumed that a necessary concomitant of such power was the power to "filter out the news to the people through some man." 55 Cong. Rec. 2008 (remarks of Sen. Ashurst). However, these same members of congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed. Senator Ashurst, for example, was quite sure that the editor of such a newspaper "should be punished if he did publish information as to the movements of the fleet, the troops, the aircraft, the location of powder factories, the location of defense works, and all that sort of thing." Id., at 2009.

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

The same would be true under those sections of the Criminal Code casting a wider net to protect the national defense...

***

It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information.

Authoritative enough for you?

[Yonivore]

On April 27, 1961 President John Kennedy gave a speech before the American Newspaper Publishers Association at the Waldorf-Astoria Hotel in New York.

He addressed the issue of the press's role in preserving national security in the Cold War. President Kennedy lamented the fact that secret information about America's covert operations had routinely appeared in American newspapers, to be read by friend and foe alike. He noted that the Communists had openly boasted of gaining information from American newspapers that they would otherwise have had to use spies to attempt to steal. And he called on newspapers not to publish stories based on the single test, Is it news? but rather to add a second test: How does it affect national security?

The speech can be both read and listened to in its entirety here. The speech is around 19 minutes long.

I would encourage you to listen to the entire speech. It is, in several ways, a relic of a better time.

[Yonivore]

I doubt that. Yoo is the advocate for the unified executive and has crafted the frequently-failing arguments that the Administration has used in defending its means of prosecuting this war. If the President identified most closely with Balkin, he made a very curious decision by enlisting Professor Yoo to express those notions, since Balkin and Yoo are largely not in agreement on these Cons utional issues.

Well, I said on this subject but, you're getting pretty adept at using generalizations.

In some of his latest statements, he seems to, if not agree, understand the Balkin position and, as I point out below, welcomes the courts direction in this matter.

Is it not sufficient precedent until its happened 3 or 4 times? For crissakes, it's not as though this is a matter that has recurred with any great frequency in the nation's history -- indeed, that's part of the reason why Hamdan even went before the Supreme Court.

Hey, I gave you credit. I still think Congress will address the shortcomings identified in Hamden and give the executive the tribunals it desires. The President has all but thanked the Supreme Court for giving them a roadmap by which to achieve this.

[FromWayDowntown]

Hey, I gave you credit. I still think Congress will address the shortcomings identified in Hamden and give the executive the tribunals it desires. The President has all but thanked the Supreme Court for giving them a roadmap by which to achieve this.

Then why on Earth is Professor Yoo whining about the outcome?

[Yonivore]

Then why on Earth is Professor Yoo whining about the outcome?

I don't know, that's a side issue that is now being addressed. But, you're detracting from the larger issue; that being the treasonous behavior of the New York Times and how it has damaged our capabilities to successfully prosecute the war on terrorism...and, threatens to continue doing so until they're reigned in.

[RandomGuy]

I hope Sulzberger and Miller rot in .

HAHAHAHAHAHAHAHA.

Talk about reinforcing a stereotype...

[FromWayDowntown]

You're characterization of the program as being "illegal" notwithstanding, I give you Justice Byron White in his opinion in the Pentagon Papers case:


Authoritative enough for you?

Justice White's opinion, while undoubtedly persuasive to some, is not the opinion of the Supreme Court of the United States -- it provides the reasoning of only Justice White and, by extension, Justice Potter Stewart, who was the other Justice to agree with Justice White's view.

His is a concurring opinion in that case and, as such, has limited precedential value beyond its potential ability to persuade others that he might be right. If this case were litigated to the Supreme Court, neither the Supreme Court nor any other court would be compelled to follow Justice White's opinion because it's not precedent.

Since it's not precedent, it is not, in any cir stance, authoritative.

[FromWayDowntown]

On April 27, 1961 President John Kennedy gave a speech before the American Newspaper Publishers Association at the Waldorf-Astoria Hotel in New York.

He addressed the issue of the press's role in preserving national security in the Cold War. President Kennedy lamented the fact that secret information about America's covert operations had routinely appeared in American newspapers, to be read by friend and foe alike. He noted that the Communists had openly boasted of gaining information from American newspapers that they would otherwise have had to use spies to attempt to steal. And he called on newspapers not to publish stories based on the single test, Is it news? but rather to add a second test: How does it affect national security?

The speech can be both read and listened to in its entirety here. The speech is around 19 minutes long.

I would encourage you to listen to the entire speech. It is, in several ways, a relic of a better time.

I'm not sure why you would cite to that -- President Kennedy's speech, by its own admission, tells us that at the very least, this sort of reporting is not new and hasn't (apparently) been prosecuted on the grounds that you claim should be employed here.

That President Kennedy thought it might be harmful to his effort is not in any material sense different than President Bush's thought that the NYT's reporting is harmful to the prosecution of his war. But, as is true over most of the history of this Republic, the President's thoughts on what should or should not be done are not conclusive on the rest of society.

It is worth noting, too, that somehow, despite President Kennedy's lamentations of press overreaching, the United States of America won the Cold War.

[Yonivore]

Justice White's opinion, while undoubtedly persuasive to some, is not the opinion of the Supreme Court of the United States -- it provides the reasoning of only Justice White and, by extension, Justice Potter Stewart, who was the other Justice to agree with Justice White's view.

His is a concurring opinion in that case and, as such, has limited precedential value beyond its potential ability to persuade others that he might be right. If this case were litigated to the Supreme Court, neither the Supreme Court nor any other court would be compelled to follow Justice White's opinion because it's not precedent.

Since it's not precedent, it is not, in any cir stance, authoritative.

So, obviously you have a counter to that opinion that states if prior restraint cannot be exercised, then the paper can legally publish?

[Yonivore]

I'm not sure why you would cite to that -- President Kennedy's speech, by its own admission, tells us that at the very least, this sort of reporting is not new and hasn't (apparently) been prosecuted on the grounds that you claim should be employed here.

That President Kennedy thought it might be harmful to his effort is not in any material sense different than President Bush's thought that the NYT's reporting is harmful to the prosecution of his war. But, as is true over most of the history of this Republic, the President's thoughts on what should or should not be done are not conclusive on the rest of society.

It is worth noting, too, that somehow, despite President Kennedy's lamentations of press overreaching, the United States of America won the Cold War.

Thanks to Ronald Reagan.

[FromWayDowntown]

So, obviously you have a counter to that opinion that states if prior restraint cannot be exercised, then the paper can legally publish?

I don't need a counter to it. Justice White's opinion is one position. Another is that Justice White's opinion is untenable. There are other shades between those extremes. The citation to Justice White's concurrence, though, only proves to me that the issue is one that has not been decided one way or the other. A concurring opinion in which only one other Justice joined is hardly the law of the land.

[Yonivore]

I don't need a counter to it. Justice White's opinion is one position. Another is that Justice White's opinion is untenable. There are other shades between those extremes. The citation to Justice White's concurrence, though, only proves to me that the issue is one that has not been decided one way or the other. A concurring opinion in which only one other Justice joined is hardly the law of the land.

But, there is no position that states the publisher cannot be prosecuted and, just because the government did not prosecute, does not mean the violations were any less illegal.

[FromWayDowntown]

Thanks to Ronald Reagan.

Of course, right from page 1 of the conservative playbook. You're right -- and amazingly, President Reagan was able to win the Cold War in spite of the press.

The point is that even reporting that appeared over-zealous to some did not compromise the ability of the United States to prosecute and eventually win a rather amorphous war.

[FromWayDowntown]

But, there is no position that states the publisher cannot be prosecuted and, just because the government did not prosecute, does not mean the violations were any less illegal.

Fine, prosecute them. Find a law that permits a prosecution and see if you can get a conviction. Good luck. Most legal analysts that I've heard opine on this issue think that the chances of obtaining a criminal conviction of the NYT or any of its employees are about equal to the chances of freezing over.

[xrayzebra]

HAHAHAHAHAHAHAHA.

Talk about reinforcing a stereotype...

OMG, now RG is using butons and SA210 thingy. Posting cartoons.

[Yonivore]

Fine, prosecute them. Find a law that permits a prosecution and see if you can get a conviction. Good luck. Most legal analysts that I've heard opine on this issue think that the chances of obtaining a criminal conviction of the NYT or any of its employees are about equal to the chances of freezing over.

I believe you're what Vladimir Lenin once called a "useful idiot."

Your opposition to President Bush and all things his administration is trying to do is, in large part, serving the interests of our enemies. Way to go.

I'm still waiting on the name of one American citizen that has been harmed by the NSA or SWIFT programs.

[FromWayDowntown]

I believe you're what Vladimir Lenin once called a "useful idiot."

Hey, you've at least recognized my utility!! I've accomplished something here.

I'm not sure why the suggestion that the NYT hasn't violated any law is one that leads you to such witty suggestions about my character or intellect, but if that's the best you've got, by gum, you've stung me. Ouch!

Your opposition to President Bush and all things his administration is trying to do is, in large part, serving the interests of our enemies. Way to go.

I'm still waiting on the name of one American citizen that has been harmed by the NSA or SWIFT programs.

Look, I don't oppose anything that President Bush has done in prosecuting the war in Afghanistan. While I disagree with the decision to invade Iraq, I also don't oppose anything that President Bush has done in prosecuting this war, to the extent that he has followed the law. I don't oppose the notion that the President might seek to have the law changed in order to make his prosecution of the war easier, so long as those changes to the law do not interfere with established Cons utional and legal rights possessed by citizens. At this point, I would join with the President in opposing a scheduled withdrawal from Iraq. On all of those points, I'm decidedly with the President.

What I do oppose is the notion that there is some "no harm, no foul" notion in the law that absolves the President of the need to abide by the Cons ution in all cir stances -- even in formulating foreign policy and even if prosecuting a war. Does the oath of office -- you know, that declaration that the President will support and defend the Cons ution of the United States -- mean anything anymore? Should we change it to "I will support and defend the Cons ution of the United States, except in times that I deem to be emergencies or to the extent that my lawyers might be able to formulate an argument to cir vent well-established Cons utional principles?" That might be more appropriate.