Hamdan, NSA, and the New York Times

The Bush administration and its allies continue their drumbeat attack on the First Amendment with repeated threats to prosecute the New York Times for disclosing the President’s secret surveillance programs. Attorney General Alberto Gonzales has suggested a criminal prosecution under the Espionage Act, Congressman Peter King and Senator Jim Bunning have accused the Times of treason, and Republicans in the House of Representatives have passed a resolution condemning the Times for putting “the lives of Americans in danger.”

All this is rank hypocrisy designed to intimidate the press and rally the party faithful, at no small cost to our democracy. The decision of the Times to reveal the secret NSA spy program may have embarrassed the President, but it was a great service to the nation. Any doubt there might have been about the illegality of the NSA program was effectively put to rest by the recent decision of the Supreme Court in the Hamdan case. The administration’s only plausible argument that the NSA surveillance program is lawful, even though it plainly violates the 1978 Foreign Intelligence Surveillance Act, is that FISA unconstitutionally limits the authority of the President as “commander in chief of the Army and Navy.” Even before Hamdan, this claim was weak, at best. After the Court’s five-to-three decision in Hamdan, that claim is frivolous. In declaring unlawful Bush’s military commissions, the Court in Hamdan reiterated what it said plainly two years ago in Hamdi – even a state of war does not grant the President a “blank check” to run roughshod over the law.

The continuing assertion that the government of the United States can criminally prosecute the New York Times for disclosing to the American people the existence of an unlawful program of surveillance is nothing short of shocking. What does the First Amendment mean if not that the press can inform the American people that their elected representatives have violated the law?

Not only does the Bush administration continue to maintain that the government has the authority to punish the revelation of the administration’s own illegality, but they boldly assert that such punishment is justified because the publication of such information put “the lives of Americans in danger.” With all due respect, the publication of information that our nuclear power plants are insecure puts “the lives of Americans in danger.” Disclosure of the torture at Abu Ghraib put “the lives of Americans in danger.” Even criticism of the war in Iraq puts “the lives of Americans in danger.” What makes this danger any different?

Presumably, the administration and its defenders believe that disclosure of the NSA spy program not only put “the lives of Americans in danger,” but created a “clear and present” danger of “grave” harm. But no one in the administration has ever explained how or why this is so. Moreover, the administration knew full well that the Times was aware of the NSA surveillance program for many months before the Times published the story. If the danger of disclosure was truly “clear,” “present,” and “grave,” why didn’t the administration seek an injunction again publication?

Certainly, as in the Pentagon Papers incident more than twenty-five years ago, the Times would have withheld publication in the face of such an injunction. Moreover, as in the Pentagon Papers case, the government could have litigated an injunction without revealing to the public the secret information at issue. But in all the time the administration knew that the Times was considering publication, it did not seek an injunction against publication.

The reason, to me, seems obvious. The lawyers in the administration knew they could not prove the existence of a danger sufficiently “clear,” “present,” and “grave” to justify an injunction. Rather than test the matter in a court of law, the administration sat passively on its hands and allowed the story to be published. Then, after–the–fact, it accuses the Times of disloyalty and browbeats the press with threats of a criminal prosecution. It makes one wonder exactly who is playing fast-and-loose with the truth – and with the nation’s security.

Comments

[Kimball Corson]

This Administration knows full well that it acts not infrequently in ways that are illegal. It then jaw bones a lot when its doings are made public by the press, but it is basically afraid of the courts. It did not take the initial NSA surveillance matter before the FISA Court because, as several members of the Administration explained anonymously, they feared disapproval of that court and wanted the program. Bush’s and Cheney’s feigned righteous indignation and threats are a self-protective fraud. It is refreshing to hear someone say so. They use their offices as bully pulpits and so further tarnish those offices. Let them bring their treason action and pursue it. Even as presently constituted, the Supreme Court would more likely than not bring another rebuke down on their heads. What this Administration makes clear, together with its patsy Congress, is the need for a standing, independent prosecutor with a protected budget and rights. Otherwise, almost no one is in a position to raise a hand against this Administration, and we have this parade of blustering fools trying to dig into everyone’s private lives, as they compromise our Bill of Rights with their doings and bullying of the press. Keller should say, “Alright guys, take your best shot. Stop the talk and let’s have at it” Indeed, I would meaningfully chip into the Time’s legal fund, were that to occur.

[George Wilkerson, III]

Professor Stone,
You should be ashamed of yourself your your pathetically self-serving argumentation.

The current issue now is not the Times' disclosure of the NSA eavesdropping program, but the Times' policy of disclosing national security secrets even if the classified programs are (1) effective, (2) legal, (3)have bipartisan support, and (4) do not qualify as news.

There was simply no reason for the Times to disclose the SWIFT asset seizure and financial tracking operation, other than to appease wimpy, effete eggheads like you, who make their trade hurling spitballs at strawmen because tenure insulates them from engaging in real debate on real issues with real people.

The American people are not well-served by the Times; if they were, the Times' readership would be much higher.

[David]

The Pentagon Papers case forecloses an injunction against publication in almost all circumstances, but does not foreclose prosecution for publishing classified information. Based on dictum in that opinion, the Times is on notice.

However, I would prefer that the administration go after the leakers in government and the best way to do that is to put the reporters in front of a grand jury and ask them who they talked to. Because the Times went on a crusade to "get" whoever leaked that Valerie Plame Wilson was an "undercover" CIA operative, that is now much easier to do than previously.

But if the government wants to get this information, then it will have to give the reporters and the Times at least use immunity from prosecution.

[Kimball Corson]

George, as you obviously know, Prof. Stone has pointed out elsewhere that government secrets are in fact well kept and not leaked and poublished where they are (1) effective, (2) legal, (3)have bipartisan support and (4) do not qualify as news. It is when government programs involve illegality by government officials who must uphold the law and in Bush's case, taken an oath to uphold the Constitution, that the press -- especially the Times -- becomes interested in publication. Illegality is newsworthy. The American people are being very well served by the Times, but not by this lawless Adminstration. Ignoring your ad hominem insults, you get it precisely backwards by ignoring our rights. The law and the Cnnstitutioon matter more than what this Administration happens to want to do in the particular instance.

[Kimball Corson]

As for the Times readership or circulation, the Times now faces much new electronic competition like all newspapers loosing subscriptions, but is still quite considerable, especially given the fact that red states America does read much and American literacy levels are declining.

[David]

Do you really want to see a return of independent prosecutors? The problem with an independent prosecutor is that, once appointed, he is almost bound to find some violation of something to justify his existence and powers. So we have Ken Starr and the many other investigations of the Clintons and their associates (just now being concluded almost six years after the Clinton administration left office), and the recent investigation of the Valerie Plame Wilson matter (where it appears no one will be charged with an underlying crime but someone will be tried for lying during the investigation.)

[Leif]

Prof. Stone,

1. I'm confused by your allegation of hypocrisy. Isn't it hypocritical to criticize the NYT only if the Administration reveals secret information it believes supports its actions? This charge appears to be baseless.

2. The Pentagon Papers case set down an almost per se rule against prior restraint of publication, as has already been pointed out. And I cannot believe that your criticisms would be any different if the Administration had sought the injunction you propose - can you honestly say that you wouldn't level the same charge, only substituting "attempted to prevent the publication of" for "complained it was criminal to publish"?

3. You do not even mention the possibility that the Administration did not seek an injunction because doing so would cause further damage - the Administration would have to reveal, in open court, just what plots it was investigating, how close to fruition the plots appeared to be, where the plotters appeared to be, how close the Administration was to apprehending them, the methods by which those plots might get carried out, the identities of those who had furnished corroborating information . . . can you honestly say that an Administration must not believe that the NYT's revelations harmed national security just because they didn't seek an injunction?

In sum, I have to say, I'm neither convinced nor impressed by your argument.

[anon]

Leif -
Your doubts are easily dismissed.

1. The hypocrisy referred to is no doubt the hypocrisy of accusing the Times of treason, while simultaneously endorsing secret (and now probably illegal) invasions of Americans' privacy. Whether or not you buy that characterization of the NSA program, the hypocrisy charge is easy to understand.

2. Stone quite obviously says he would endorse the administration in seeking an injunction, as any responsible attorney would. Pentagon Papers set out a clear mechanism by which the government can challenge publication of sensitive information. On what basis would Stone criticize pursuit of an injunction?

3. The gov't can always request closed hearings and the standard privacy mechanisms employed by all federal courts. They chose not to do so, without any explanation of why those mechanisms were inadequate.

[LAK]

Will someone please answer my question:

Is the Bush administrations argument for its authority to conduct warrantless searches based on the grant of war powers that Congress gave to him, or is teh Bush administration's argument that his role as commander in chief allows him to do all this to protect national security whether there has been a grant of war powers or not.

If it is the former, I must point out that in passing the Patriot Act, FISA was reconsidered and amended to include foreign terrorists after the grant of war powers. So it is quite clear that the President's would be wrong, and it would be illegal to based his decision to ignore FISA on the grant of war powers, if his argument that he has authority to cinsuct these programs is based in part by the grant of war powers from congress.

George,

1. How is Professor stone being "self-serving?" Where is the self in all this? I'm confused.

1) effective, (2) legal, (3)have bipartisan support, and (4) do not qualify as news?

What do you base these claims on? I know of no effectiveness or results, you are concluding these programs are legal when the vast majority of constitutonal law seems to suggest otherwise (Power as commander in chief trumps the 4th Amendment and the explicit will of Cngresss as express through FISA, which itself was drafted to brush up against the bounds of the 4th Amendment? Please.) Bipartisan support? I was unaware that more than a handful of congresspeople knew about this, and still fewere the fuill extent.

Does not qualify as news? The government spying and data mining and fishing into the personal phone calls and private financial transactions of American citizens is not news? Maybe not to a Fox news watch but to the rest of us sane people, when th Executive branch starts acting like a kind and justifies such actions on a suspect and shadowy war, it is news, whether you refuse to recognize it as such, or not.

[Leif]

Anon,

1. Then it's not a charge of hypocrisy, because, even assuming your premise, treason and criminality are not the same thing. If the Administration believes this is a legal program, or a military program, despite what the Supreme Court says, there is no inconsistency in endorsing it and opposing the Times's disclosure of it. "Hypocrisy" is just a slur intended to make the Administration look double-dealing. It's not. It's remarkably consistent on this point.

2. Prof. Stone never says he endorses the Administration seeking an injunction. He says he doesn't believe what the Administration is saying because it didn't seek an injunction. Given his other statements regarding the Administration and its view of national security and his other statements on the breadth of the First Amendment and his perception of the Administration's view of that Amendment, it is disingenuous to believe that Prof. Stone wouldn't have opposed an attempt to enjoin publication as strenuously as he opposed after-the-fact criticism of publication.

3. The government can request those things, but they are not always granted, and no system of security is perfect. I clerked in a federal district court while my judge was handling cases involving secret- and top-secret-level information surrounding a former CIA operative. The procedures for clearing people to hear that information are long, tedious, and imperfect. I was not the clerk assigned to the case, nor was I approved to work on the case, but it would not have been much trouble for me to have gotten a look at the materials. And I have no idea whether the judge's secretary, case manager, or other Court personnel had access to those documents, approved or not. (I would certainly hope not; given that the case was not that high-profile in the public, I doubt whether 95% of those employed by the Court even knew it existed.) Presentation of testimony in an injunction is going to have to be revealed, at the very least, to the NYT's lawyers, and likely the Times higher-ups in their capacity as witnesses so they can respond to the charges. The inviolability of the information simply cannot be guaranteed - it will be out there, and the government will know it. More to the point, it will be out there to a group of people that the government already knows don't believe that the information is vital national security information. This information exists in the real world, where it is valuable both to America's enemies and to those who believe it to be newsworthy. This is a legitimate concern for the Administration, and your insistence that the Administration explain why it can't bring the information forth is just a road map that helps terrorists to know what types of information American intelligence has on them.

[LAK]

like a king. not kind.

[Leif]

LAK, even the Supreme Court has held that there is no privacy interest in phone numbers that a person dials, and the financial information at issue in the SWIFT program was obtained from a third party - if the information has been disclosed to a third party, there is no Fourth Amendment expectation of privacy in it. Try again with the "spying" charge.

[Frederick Hamilton]

Professor Stone,

NSA, Hamdan and The New York Times. Per you, all indicative of the Follies Bushier. I disagree with your assesment of "Bush administration illegalities". There is good legal scholarship (even within the Univ. of Chicago Law School) that takes issue with the spying on the enemy vis a vis the NSA international call intercepts in a time of war being illegal. That decision will be made not by you or me but possibly some day by the SCOTUS. As to the NSA taking the phone records and trying to track down terrorists based on phone calls and not listening to them or identifying individuals, that data mining is not illegal at all. Now as to the CIA and their implementation of the SWIFT financial data tracking, all accounts in the press indicate its legality, not "illegality".

Has the NY Times, or its reporters, or its sources engaged in illegal behavior? I suspect the answer based on all I have read including the wonderful discussion in Commentary by Gabriel Schoenfeld is yes. Should there be prosecutions? Not sure. But The NY Times, its reporters and its sources are not above the law. You may think so. I don't. Just as President Bush is not above the law. Possibly we simply disagree on the law. But then If I remember correctly, I believe you thought law schools were not breaking the law by not complying with the Solomon legislation. Only to be told 8-0 by the SCOTUS that they indeed were breaking the law. Their free speech wasn't impacted one wit. So maybe your opinions on the law are not writ in stone.

When you are done excoriating the President's attempts to protect you and I and the rest of America I think it important to dwell on what the attempts to intercept the terrorists have accomplished. The SWIFT program by the NY Times own accounts resulted in the apprehension and incarceration of the top leader's of al Qaeda including the one who planned and executed the Bali bombings, with the killing of (executing) many innocents. Could you please tell us how many further innocents have been prevented from being executed/killed with that nefarious fellow in the slammer? I can't. I can only conclude you don't believe his jailing has saved lives. I doubt that. You however feel the SWIFT program costs me and you too much of our freedoms. What lost freedoms have directly impacted you? Can you travel? Anywhere but Cuba? Can you write anything you want, right or wrong? Can you excoriate America's leaders without fear of retribution (the above proves yes to that question)? Has your ability to vote for a leader more to your liking in 2008 been taken away? Please. I know it is hysterical, hateful, war-mongering, but we really are in a war with people who would dearly love to cut your's and my head off.

With respect to Hamdan, that was a closely decided decision regarding the inapplicability of military tribunals without specific legislation authorizing same. What was the President's response? Did he pull a Jackson and tell the SCOTUS, "now you have made your decision, enforce it"? Now he immediately said he respects their decision and if more is needed with respect to legislation he will work with Congress to satisfy the court's concerns. The SCOTUS didn't call for the release of ONE prisoner in Guantanamo. Keep 'em till the war is over. It is a stretch to think that the Hamdan decision makes the NSA intercepts of enemy terrorist international phone calls in a time of legislatively approved war illegal? My humble opinion is that you will be as wrong with that prognostication as you were with Solomon.

Your liberal excoriation of the Follies Bushier is reminiscent of what Tom Wolfe chided in his aphorism (recently recalled by Eugene Volokh): "The dark night of fascism is always descending in the United States and yet lands only in Europe."

Would you please explain why such Follies Bushier members as Tom Kean, Lee Hamilton and gasp Rep. John Murtha asked The NY Times not to print the SWIFT report? There are many of we rubes out in the hinterlands that are pretty pissed off at The NY Times. If they and their reporters and their sources find themselves in front of a grand jury it would please many of us. The New York Times led the charge for a special prosecutor to investigate the Plame Affair. Chastised AG Ashcroft and Bush until they indeed appointed a special prosecutor. I predict the only one who will ever serve time in this non-affair non-illegal over-hyped episode will be the NY Times reporter Judith Miller. How ironic. Oh what the Times have wrought.

Your quarrel with the Bush Administration is more ideological than legal. Maybe you’re right though. Just maybe one day we will see George W. doing the perp walk on his way to jail. Nah, that's a fantasy legal world. I don't see it coming to pass.

[LAK]

right, no pricvacy expectaion for phone numbers dialed. That was the local crim case where the poice tapped the phone line to see where a suspect was calling and did so without a warrant? Is that all the Bush administration was doing? How do we know? Just mining phone numbers? Or were they listening in on some? How about emails? No privacy expectation there either? in just the recipient email address? Or the ocntents of the email too?

The cases seem quite different when there is blanket surveillance on complete innocents going on, and we have no idea what the Bush Administration was doing, whether they were listening in or just mining numbers. And they were certainly not doing it to people they had probable casue to observe but for whom they failed to procure a warrant.

I have a feeling that case that said there was no expectation of privacy in phone numbers would be decided differently if it was a government program targeting people for whom law enforcement had no casue whatsover to monitor, as is the instant case. A lot has changed ion the last 30 years or so from whenever that case was decided. Especially the type of monitoring.

Are you really comfortable with the government mining data about who and when you call or email?

Will someone answer my question though? Is Bush's argument for his authority based on the grant of war powers or does he arge he has this authority with or without a grant of war powers?

[Frederick Hamilton]

LAK,

I think both. Clearly however he is on better legal ground with the recent opinion of Justice O'Connors regarding the activities incident to war. The war was legislatively approved. Can the Commander in Chief approve spying on the enemy in a time of war? FISA allowed for specific legislation to supercede it when it comes to Presidential powers. My understanding is also the FISA has already stated the President has the power to spy on the enemy in a time of war. This from the court whose accronym stands for the Foreign Intelligence Survelliance Act. I think if it gets there SCOTUS will side with the president. It will be fun to watch. I would like to see it head there. I for one believe parts of FISA to be unconstituional.

[LAK]

Well if it is contingent on a grant of war powers, and then Congress amends and republishes FISA to include the very people the President is purportedly spying on without a warrant, *after* they have granted him war powers (which they did when they passed the Pat Act again), i have a hard time undersatnding how that would be legal. He is overstepping the authority that Congress gave him by ignoring a law passed specifically to deal with the situation.

If it is otherwise, that hsi authority is derived solely from Article II, and his role as Commander in chief, doesn't it strike you as a bit far fetched that the President could trump the explicit terms of the 4th amendment based on implicit mirky powers read into the commander in chief portion of Art. II? You really want to argue that the President can ignore the explicit terms of Acts of Congress (FISA) and the 4th Amendment based on implicit powers of being Commander in Chief. That is one far fetched argument.

At least you are consistent in arguing that FISA would have to be unconstitutional for that to be true (Which is an absurd argument. You are essentially saying that the 4th amendment is unconstitutional because it might interfere with the President's duties as Commander in Chief - Congress was trying to be as broad and permissive as possible in passing FISA without stepping on the 4th amendment)

[Roach]

Let's have a reality check.

The Times made way too big of a deal out of Abu Ghraib, putting it on the front pages, while it refused to put the infamous cartoons of Mohammad at all. Why? Because one offended Americans and servicemembers and the other offended Muslims. Americans write letters to the editor; Muslim fanatics cut of hands of children and mail them to the editor. The press pretends to be brave and courageous and even-handed in its pursuit of truth and news, but it regularly caves to the left, threats of violence by Musims, politically correct shibolleths of one kind or another, and naked partisanship.

Second, the Times notoriously ran a detailed expose on the CIA's use of front companies to charter aircraft and fly its agents around the world. The story had the look of an intelligence dossier; complete with ID numbers. What possible purpose could such "news" serve other than to make the CIA's intelligence and operations work more difficult?

Third, the Times has no apparent criterion to separate what may be legitimate stories that affect the interests of Americans and those that would reveal sensitive intelligence data. So everything makes it on the front page, with or without government approval or requests for nondisclosure.

What does this all prove. First, what we already know, the press is not patriotic, does not consider its intersts the same as the American people as a whole, and cannot be trusted at all to be judicious in its handling of sensitive information related to the war on terror. Second, that the press thinks it is above the law, refusing to comply with subpoenas related to sources even when there is a legal obligation to do so. Third, the press, like other leftist institutions, has concluded there is no real clear and present danger from terrorists; that is, it's not in the same league as "loose lips sink ships." This just proves most of its leadership is plain stupid. 9/11 happened only a few years ago. Other 9/11 style attacks have happened in Europe. Others are being planned, thwarted, and narrowly averted as we speak. And yet, for the press, the counterterrorism campaign is a luxury, that they think miraculously won't affect them, and that they can remain aloof from the outcome.

Try telling that to Daniel Pearl.

[LAK]

"The Times made way too big of a deal out of Abu Ghraib, putting it on the front pages, while it refused to put the infamous cartoons of Mohammad at all. Why? Because one offended Americans and servicemembers and the other offended Muslims."

Roach,
or maybe its that Abu Ghraib was conducted by our government in our name and purportedly in our best interests? You see the distinction there? It isn't a difficult one but let me spell it out for you. It wasn't that the NY Times was trying to offend Amrican troops while trying not to offend Muslims, it was reporting on our government's actions (you know: of, by and for the people?). You see how what our government does and does not do is of much more import than what some Danish newspaper prints?

Roach, I know it may be hard for you to get your big mental paws around that distinction, but you should try as your explanation smacks of poor and confused thought.

[LAK]

"Second, the Times notoriously ran a detailed expose on the CIA's use of front companies to charter aircraft and fly its agents around the world. The story had the look of an intelligence dossier; complete with ID numbers. What possible purpose could such "news" serve other than to make the CIA's intelligence and operations work more difficult?"

Oh you know, when our government violates international treaties on human rights while saying it isn't, that is generally is newsworthy. You honestly think the Times was motivated by making the CIA's work more difficult? That is just plain dumb my friend. You seem to not recognize that what our government does and does not do in our name is important, especially when it implicates violations of human rights and international treaties.

"Third, the Times has no apparent criterion to separate what may be legitimate stories that affect the interests of Americans and those that would reveal sensitive intelligence data. So everything makes it on the front page, with or without government approval or requests for nondisclosure."

Yup, and rightfully so. Go read some of the founding fathers' writings on the 1st amendment and the freedom of the press.

If you are so concerned about the reporting of potentially illegal activity by our government, then blame the leakers, not the messengers. Tighten up secuity in the government, and stop scapegoating the TIMES. It is pathetic. They can and should report on everything they hear. If they shouldn't be hearing certain things than stop that from happeneing. It is downright scary that the press would be labels the bad guy here. Sad really.

[Kimball Corson]

David, I share your misgivings on an independent prosecutor, but we definitely need somethings when Congress and half of the Court abdicates their responsibility and the Executive runs wild, ignoring the law and without oversight.

[Kimball Corson]

Perhaps the Administration did not seek an injunction against the Times, after its many conversations with Keller, and before publication becasue it knew it would loose, just as it did not seek FISA Court approval for the earlier NSA program because it thought it would loose there too.

[Kimball Corson]

Frederick, you make the arguments about as well as they can be made for the Bush camp (and you are getting better at it), but I am still unpersuaded largely because I evaluate the threat as being less onerous and our rights loss as being more serious, especially if the so-called war on terror goes on ad infinitum. Bin laden, as a terrorist, is inducing us to do much more damage to our rights and institutions that he and his henchmen ever could.

[Frederick Hamilton]

Kimball,

I agree. It is true that there are cross currents with respect to the threat versus the loss of privacy, freedom and liberty. Obviously two difficult issues to reconcile.

As we get further and further away from 9/11 and as the Iraqi situation begins to stabilize with less loss of American lives there will be great temptation to move toward more of a concern for liberty and freedom than protection from outside threats.

Clearly were there as many terrorist bombings and events as say Israel endures, we would be more willing to see some erosion in privacy (never freedom, I should always be able to walk into harms way if I want to without big brother controlling my actions) than we are willing to accept now.

One can only hope and pray that our leaders (executive, congressional and judicial) can come up with acceptable trade-offs. Obviously the intractable of the privacy, freedom and liberty group shouldn't get their way or the liberty of my life would be endangered. Likewise the intractable of those that will give all privacy, freedom and liberty away for the solace of safety are equally off base. It is that ground between the two that most of us argue over.

Fortunately we do live in a country where the common wisdom of the executive branch that has a better handle on the threat, has to exist with the legislative which is taking the measure of the will of the people, and the judiciary which is sorting out where our constitution can or cannot be violated. Judge Posner is correct when he states that the constitution is not a suicide pact.

If the Bush Administration is creating to many Follies Bushier, they will get reigned in. I am not a pessimist when it comes to America. This great nation in the end usually gets it quite right. I simply don't believe it possible for any administration to take away our fundamental rights. Hell, even though Bush is supportive, the constitutional amendment legislation to ban burning the flag couldn't get through the peoples congress. On the opposite side in a way, the vast majority of Americans won't allow for a path to citizenship until the government can come up with legislation that will keep 1-2 million illegal immigrants from crossing our borders every year.

So there is this ongoing give and take that attempts to keep us safe within the context of freedom and liberty. As it should be.

If there were another 9/11 (terrorist attack of some kind, say like 7/7 in London last year) then the country would tilt toward interception and prevention more.

I do like the intellectual exchanges but as one writer observed, easy to be cavalier about the threat unless your name was Daniel Pearle. The enemy is ruthless and barbaric. Their idea of an intellectual exchange is to exchange heads. Is there an answer to their barbarism other than strength. Will talking to them do it? Appeasement? Leaving the Middle East? Abandoning Israel? Heavy is the head that wears the crown. So for now, I support the Bush approach. A free Iraq. Attack the terrorist wherever we can. On their soil not ours. Make their cause futile. That does require determination and stamina on our part. Ocassionally offer the gloved hand in dialog and compromise, yes, but at every provocation comes destruction on a large scale. They do understand force. Ossama is still hiding. I think right now we are appropriately in a carry the big stick mode.

[Jim]

The most logical solution to this problem would be to prosecute any and all leakers of classified information as their actions clearly violate the law. The Times, as several have said, has an obligation to print everything it hears so we must staunch the information flow at the source, not after the fact. The notion of a constitutional or legal grant of confidentiality between a reporter and their source is ludicrous; one leaks at their own peril. Prosecution of said leakers might reduce the numbers of those much vaunted "whistle blowers" but I would rather have discipline within secret government programs than allow low and mid-level operatives to blow the lid off everything that troubles their consciences.

Of course, enforcing this requires that the media and reporters themselves retain criminal liability for divulging confidential programs. If the government cannot threaten to prosecute the reporter for disclosing classified information then what incentive does the reporter have to disclose their source? I suspect this would evolve into a fairly routine grant of immunity to the reporter in exchange for the identity of their source. If the reporter for motivations of enlarged personal grandeur, journalistic "principles" or whatever else refuses to disclose the identity of the government agent who clearly violated their legal obligation to maintain secrecy then they can go to jail. I doubt many reporters have such commitment to these abstracts that they will suffer through endless spam sandwiches and communal showers in a Federal penitentiary to protect a leaker.

Thus secret programs will remain secret since their staffs will no longer be able to run amuck undermining those actions they do not feel are appropriate. Mid and low-level operative do not get to make that call.

[George Wilkerson, III]

"It is when government programs involve illegality by government officials who must uphold the law and in Bush's case, taken an oath to uphold the Constitution, that the press -- especially the Times -- becomes interested in publication."

Apparently, you all missed the point. Sure. NSA is perhaps illegal. No one disputes that the SWIFT asset tracking program is legal. The New York Times admitted it knew it was legal when it broke the story. And numerous government officials supplied the New York Times with information showing how effective it was at tracking terrorist financing. The New York Times has admitted this.

Professor Stone is hurling spitballs at strawmen by talking about the NSA eavesdropping program as if that is the only thing the New York Times has done. It is not. Americans are evaluting the New York Times on its full record. That includes (1) being utterly supine on the Iraq War and (2) ruining the SWIFT asset seizure and asset tracking program.

I will note that during the 2004 election John Kerry bragged about drafting the asset seizure and asset tracking legislation in the 80s to pursue drug cartels that became the basis of asset seizure and asset tracking provisions of the PATRIOT Act; that the 9/11 Commission suggested the government should improve its asset seizure and asset tracking programs; and that the SWIFT program is exactly the kind of program that John Kerry and other Democrats usually inclined to lambaste the President signed off on, that the 9/11 Commission signed off on, that the President's administration was effectuating, and that was working to track and foil terrorist plots. Indeed the New York Times reported just that. So, yes, that qualifies as "(1) effective, (2) legal, (3)have bipartisan support" and it "(4) do[es] not qualify as news" because these programs have been in effect and beyond dispute since the 80s, when John Kerry started arguing for their implementation. What the New York Times did was utterly unreasonable, and Professor Stone knows it. He is just trying to change the subject by bringing up the NSA program, which is only one piece of the puzzle and an old piece at that. People don't trust the Times because the Times' judgment is bad.