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May 21, 2006


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And who would decide which secrets are allowed to be reported? The government? How convenient.

Secrets are useful only when one is doing something wrong. When what one is doing is right, no one keeps it a secret. I am for expossing all secrets, i.e. exposing all wrongs.


Categorizing secrets is rediculous. Who decides if a secret is “legitimate" or "non-newsworthy?” The press should decide this, not the government.

You said, "In principle, then, the government should be able to prohibit the publication of such secrets."

This is wrong. Instead, the government should keep its' secrets secret. Why punish the press for its own failings? When the press publishes a secret, the government can now go after the leak source. That would be legal. It's the source of the leak that has committed the crime, not the press.

You said, "It should be possible reasonably to limit the uncertainty by clearly and narrowly defining what is prohibited."

Again, wrong and a fantasy. Every law congress passes is a political law that damages our Constitution. And when was the last time you heard a congressperson speak clearly, not to mention narrowly defining his own viewpoint?


I understood chairman P Roberts' opening statement at the Hayden hearing May 18 to place within what is apparently your most grievous category, the divulgation by New York Times and Time, after one year's complicit nonpublication, that the FISA court statute was nullified by a presidential finding secretly and had been so for four years in the matter of warrantless wiretaps. The chairman's cite: "The National Security Agency's terrorist surveillance program became public last December as a result of a grave breach of national security. A leak allowed our enemy to know that the president had authorized the NSA to intercept the international communications of people reasonably believed to be linked to Al Qaida."
Granted, this is a Senator, not a member of the House; and such a polarized and polarizing opinion would be part of a floor discussion. But, to entrust this leadership with the task of writing new legislation is to invite censorship way beyond the triply nuanced schema you propose.
Which is to say, your incentive is important and well constructed; but we need extensive guarantees of reasonableness in laws which aspire to circumscribe Bill of Rights freedoms.
Do you teach jury nullification as an appropriate tactic when a guilty verdict is voted, as occurred in the famous J Zenger trial [1] in colonial times?
I understand there are some respected professors who prescind from teaching Marbury for similar reasons, at least in my understanding: that the defense was so novel, and the resolution sufficiently congruent to societal expectations, that the tactics' legitimacy was more dubious than legend later would have it, even though we subscribe to stare decisis.
Whatever HSCI decides, there needs to be a forum for advocacy of sufficient colorfulness to permit a very extravagant defense to win the day; though how one legislates making allowance for imaginativeness is problematic, or could be, given the current spate of rulings against reporters.
Of course, all this is in the setting of the known ongoing programs now to ferret out leakers and leakees with respect to approximately five news stories about US government policies in the world press since 2003.
One hopes your thoughtful presentation encouraged congresspeople to reach for the most protective measures they can devise in the current conflicted atmosphere in first amendment adjudication.
Fortunately, our very institutions themselves are calibrated for longterm resiliency, including how we populate the bench; and even how business is conducted and classes are configured in our best law schools.
Notes: [1] http://www.law.umkc.edu/faculty/projects/ftrials/zenger/zenger.html


Is there a link to your testimony? The website at HSCI and GPO are much less than obvious, though contain interesting, nicely presented reports.

Eh Nonymous

It's a lot of nice line-drawing you did. But how about a simple test?

If there is *any* *arguable* public utility from disclosure, it can't be enjoined.

American rifles misfiring - nice choice. To keep the secret might allow the army to continue using them without the enemy exploiting it. But to disclose it points out how important it is to fix the problem. Advantage under my test: disclosure.

Revealing that we broke the enemy's code. If it's an ongoing code, you imply that there's no legitimate news value to the information. It's pure military intelligence. Let's assume that's true. If it's an old code, and the way we broke it is the secret part, and under the same view it's not of legitimate news value (suborned or acquired a highly/well placed agent, secret surveillance) because it's still operative, then same result.

If it's about the decisions surrounding Pearl Harbor and the books have already been written, then disclosure always wins. No government secret should last longer than the life of the persons involved, unless the secret continues in operation. This rule would discourage the cover of venality, incompetence, or even human error that would otherwise take shelter from a more lenient disclosure rule - one more permissive of continued classification.


Isn't this the real issue?

§798. Disclosure of Classified Information.

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
The New York Times is by the plain language in very deep trouble.


Does this apply to every instance of a disclosure, or only the first? In other words, shouldn't only the person who originally disclosed the secret be the only lawbreaker, as once the secret is disclosed, it is no longer a secret. The NYT would not be liable as it did not leak the secret, it merely published information given to it by the discloser. If I read this secret and then repeat it, am I wrong also?


"Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes...."

As you can see, the act of "publishing" is particularly and unambiguously singled out in the language.


First amendment polemics are hypnotically engaging. Consider the linked article below, now one month in the archive: it describes a federal agency request to examine post mortem more than 100 cartons of research papers authored by a renowned Washington DC investigative reporter. The journalist's family has obtained legal counsel to prevent the raid, as, certainly, there are datapoints in the documents divulging secrets about current politicians. The journalist was famous only a few decades ago, although ceased writing in the 1980s, for all practical purposes. Which is to say, the journalist earned considerable repute writing in times when many government officials saw corruption charges successfully brought against them in court. The reporter was Jack Anderson.
NOTE: http://www.rcfp.org/news/2006/0420-con-fbisee.html



So, if the NYT publishes the secret and then the Washington Post repeats the secret the next day, are they guilty too? Do you realize how many classified secrets are already common knowledge? Besides, once a secret is leaked, it is no longer a secret now regardless of who publishes it first, is it? And if a particular bit of information was a secret and the NYT published it, how would they have know it was a secret? They don't have access to what information is classified? Or should they be getting government permission to print any information they find newsworthy? Come on, this time answer me, don't just cut, paste, and throw the legalese at me.

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