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Perspectives on Prosecuting the Press:

The latest issue of the National Security Law Report, published by the ABA Standing Committee on Law and National Security, is now available online. It includes six essays on whether journalists can or should face prosecution for publishing leaked classified national defense information. The contributors include Geoffrey Stone, Gaberiel Schoenfeld, John Eastman, Kate Martin, Bryan Cunningham, and myself.

Ugh (mail):
It's good to know that we've moved the discussion along far enough such that this is now a debatable proposition.
9.28.2006 4:28pm
dick thompson (mail):
I really have to take issue with some of the statements in the document inquestion. In particular that of Kate Martin:
Continued from page 4
But now the government is advanc-
ing a radical proposition: that the First Amendment
does not bar the government from prosecuting
journalists, who in order to write informatively
beyond the official line about national security
matters must often write about classified information.


I am sorry but I do not know of anything which requires journalists to discuss classified documents in order to write informatively beyond the official line about national security matters. In fact I don't know of anyting which requires journalists to write about national security matters to that degree at all, in particular when the nation is at war. She then goes on and claims that these Pulitzer Prize winning journalists are trying to write about inherently illegal activities by the government. Who has proven that these are illegal activities in the first place and even then are then illegal activities during wartime. In fact the following of the financial transactions is something that the New York Times was chastizing the government for not doing earlier. Now all of a sudden when it does it it becomes an illegal activity.

I must admit that I am really ticked off about this because I, in an earlier existence while in the military, handled classified information at the highest levels. I know that there were very strict rules about how to deal with them and a very strict chain of command to handle disagreements about them. This chain encompassed the department involved, the executive branch up to and including the president and the congressional and senatorial committees with oversight over that department and the laws governing it. There were all kinds of steps written to be taken to resolve any problems involved. Only after all that was used up was there any right to leak at all and even then it was under threat of imprisonment.

As a part of those laws was the stipulation that you were responsible for all the security regulations and if someone tried to give you information for which you were not cleared or that you had no need to know you were to stop them immediately. There were no exceptions to this rule. If you broke it you were subject to years in prison and large fines.

Yet here we have people with these clearances blithely leaking part of the classified information that could endanger our troops and could let our enemy know for sure that we were following up on different types of information and how we were doing it. We also have civilians who are not even a part of the departments involved and who have no clearances for this information deciding on their own initiative that this would make a good story so of course it would not endanger our troops if the enemy knew not to send money this way but to do it some other way to buy weapons and IED bombs. They therefore print this all over the front page in banner headlines so that the enemy cannot possibly miss the news and can stop sending money using SWIFT or can stop using the phones to set up the next attack. Now when someone says that you can be prosecuted for that and at least can have to go to jail unless you tell us where you got the information, we suddenly find that these journalists are not subject to the same laws that the rest of us are. They can get classified information and do whatever they want because they are FREE FREE FREE! How nice for them. I want that reporter to stop by the house down the street where the 20 year old kid was just killed and tell the parents that it wasn't their fault that the enemy no longer has to worry about their plans being found out and that therefore they were able to set bombs and kill their son. I am sure that the parents will be thrilled to death to hear all about how the reporter has a first amendment right to help the enemy kill their son. Good job. NEXT!!
9.28.2006 7:11pm
Ugh (mail):
dick thompson:

Do you have a point?
9.28.2006 8:56pm
dick thompson (mail):
Yes,
I think the comments by the lawyers are totally off the wall and the reporters who print the classified info in wartime should be jailed.
9.28.2006 10:20pm
M. Stack (mail):
John Eastman's analysis is spot on. If a person can be tried and convicted for violating the Espionage Act, which they can, then members of the Press can equally be tried and potentially convicted.

The First Amendment does not protect "the Press" more than ordinary citizens, so to say "the Press" is immuned would be equivalent to saying that citizens are immune from prosecution; a reality that is fortunately not true.
9.29.2006 1:32am