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June 28, 2006

Response to Glenn Greenwald

Screwy Hoolie, a liberal reader of TigerHawk's with whom I occasionally enjoy sparring, invited me to read a post arguing the other side of the NYT classified information brouhaha. While a point-by-point refutation of Glenn's lengthy post would take longer than I arguably have left to live, I'd like to respond to a few of Glenn's assertions. I will paraphrase each (hopefully without distorting the original meaning, which is always a danger when you sum up complex thoughts) then excerpt a brief part of his argument to help you locate it in his post:

1. "...one of the most significant dangers our country faces is the all-out war now being waged on our nation's media -- and thereby on the First Amendment's guarantee of a free press -- by the Bush administration and its supporters..."

GLENN: Any doubts about whether the Bush administration intends to imprison unfriendly journalists (defined as "journalists who fail to obey the Bush administration's orders about what to publish") were completely dispelled this weekend. As I have noted many times before, one of the most significant dangers our country faces is the all-out war now being waged on our nation's media -- and thereby on the First Amendment's guarantee of a free press -- by the Bush administration and its supporters, who are furious that the media continues to expose controversial government policies and thereby subject them to democratic debate. After the unlimited outpouring of venomous attacks on the Times this weekend, I believe these attacks on our free press have become the country's most pressing political issue.

First to the specifics of Glenn's argument:

a) Any doubt Bush intends to throw 'unfriendly journalists' in jail was completely dispelled? By what? Has the Justice Department filed charges? Have journalists been carted off to airless cells in Gitmo to face the horror of genital mocking? Has the administration announced an intent to prosecute?

No. Bush did express an opinion, which you may read here. Jail is not mentioned. Neither is prosecution, but Bush did term the disclosure 'disgraceful'. Apparently in Glenn's bizarre world, this constitutes intent to prosecute.

Glenn's accusation is just plain dishonest. He provides no factual evidence to support his charge (at least that I'm aware of). Moreover, he doesn't bother to link to Bush's actual statements so we can evaluate them for ourselves. But hey - who needs facts? Just trust him.

By clever sleight of hand, he then places the words of Rep. King into the President's mouth. Ostensibly, Republicans are rather like the Borg - a mindless collective whose individual units cannot operate independently of the Great Hive Mind, formerly known as The Shrub. But this is misleading and unfair. There is a critical element in "Speaking Truth to Power"; it helps an awful lot if what you say is, in fact, true. One paragraph into his post, Greenwald has already seriously damaged his own credibility. This is hardly calculated to engender trust in his subsequent statements.

b) Unwarranted assertions aside, there are a few problems with his main thesis too. What Glenn conveniently glosses over (hoping you won't notice the omission amid the hyperbole and arm-waving) is that, if the Right's allegations are true, the NY Times' publication of classified information constitutes a violation of laws passed by our elected representatives. Therefore, his dishonest characterization of Keller's actions as merely "exposing controversial government policies and thereby subject[ing] them to democratic debate" is flawed. It assumes two legal rights the Times does not, according to our elected representatives and SCOTUS, possess: the right to expose classified information and journalistic privilege (a Constitutonally-protected status that lets them avoid the same duties ordinary citizens have to cooperate with investigations.

If you want to argue (as he does later) that the Times didn't actually expose any secrets, that is a separate question which may be settled by examining the facts. And where do we examine facts when a crime has been alleged? In a court of law. To imply the Executive Branch has no right to enforce the law or classify information, as Glenn has, is a stunning assertion he doesn't trouble to support.

One can argue this information shouldn't be classified at all. But that is really a moot point, because it is. Neither the general public nor the media possess statutory authority to selectively declassify information. Period.

Arguing the public interest is a two-sided coin. If the program was in fact secret and the Times did reveal classified information, they have committed a crime. The public has an interest in seeing them brought to trial so the truth can be determined, just as we did when Val Plame's identity was published by Robert Novak. To argue that some leaks of classified information are fine because you happen to agree with the motivation of the leaker is ludicrous.

We do not get to selectively obey laws we disagree with. If an American citizen is accused of a crime, the government must establish his guilt beyond a reasonable doubt before a jury of his peers. The interesting thing about this whole brouhaha is that many people have argued, "Don't prosecute the Times - prosecute the leakers." And for what it's worth, I happen to agree that leakers should be the primary targets of any investigation.

But let's not forget the Times' position on prosecuting leakers.

Simply stated, it's this: we reserve the right to refuse to tell you who the leakers are. This is an intellectually untenable position. In short, while refusing to acknowledge the entirely LEGAL right of the government to classify information and protect it by prosecuting leakers, the Times asserts an ILLEGAL right to refuse to tell us who those leakers are, thereby making enforcing the law difficult if not impossible. This ridiculous position was embodied by the media's response to L'Affaire Plame. First the media demanded an investigation to find out who the leakers were, then they upheld the right of the leakees to defy the investigators and shield the leakers! At heart, what they really want is the "right" to sling mud at their political opponents without the troublesome necessity of proving their charges.

Repeat after me, folks: there is no federal shield law. You can't have it both ways.

At the heart of the "shield law" position is an irreconcilable contradiction. The press says the government cannot keep secrets from them, though the law says it can. There is no Constitutional basis for the media's position. They demand the "right" to debate national secrets in the town square. The government rightly responds, "Answering your questions would compromise the whole program irreversibly." And the press replies, "Well, then how will we know you did anything wrong?" They are essentially challenging the government's power to classify information by unlawfully exposing it, then claiming they had to because otherwise they can't tell "if" (and I do mean "if") abuses are occurring.

Now let's look at the government's position. They allege the Times has revealed classified information illegally. This, on its face, is against the law, but just saying this isn't enough. The government still has to convince a grand jury to prosecute and a jury that the accused is guilty.

What is the charge? Leakers have taken information that was not, by law, theirs to reveal and revealed it anyway. They did not "own" the data, yet they gave it to two parties the law says cannot have it: the general public, and by extension our enemies. Society prosecutes not just thieves, but receivers of stolen property. Both have committed crimes. We have laws on the books to protect the public from unauthorized disclosure of our national secrets. If the Times' actions do not rise to the statutory level of espionage or the LAW contains a press exemption, the prosecution will fail on the merits.

Yet the Times arrogantly refuses to submit to the same public review of its actions it wants the government to submit to. The government asserts the right to determine whether a crime has been committed. What is the media's counterargument? Get ready for a big old dose of deja vu: "Answering your questions will compromise news reporting irreversibly."

But they are defending a form of news reporting that is, by statute, unlawful.

At issue is whether the applicable laws apply to journalists (an issue of law) and whether the Times has, in fact, leaked classified information (an issue of fact). A third legal issue possibly subsumed by the first is perhaps whether the First Amendment trumps the appropriate statute: i.e., is intentional disclosure of classified information, in fact, protected speech? These legal and factual questions (which are very much in the public interest) can only be answered in a court of law.

Yet Glenn and the Times apparently find any legal review of the Times' actions unwarranted. They illegally (remember: there is no federal shield law and SCOTUS has ruled journalists have no special privileges in this regard) want to shield accused lawbreakers and oath violators from a prosecution that must fail if the Times is innocent or the law is determined not to apply to journalists.

The government's and the media's separate refusals to answer questions are entirely dissimilar in this respect: absent some reversal of existing jurisprudence and statory authority, the law is on the side of the government, provided it can prove its case. What law is on the side of the New York Times? To cloud the issue, they then argue that 'public interests' (as determined by... you guessed it... them, and remember their decisions are not subject to review by the unwashed masses) outweigh the law; as though the public had no national security or public policy interest in seeing laws enforced.

c) In what lies this "significant danger" Greenwald so fears? We've addressed his exaggerated statement that saying something is "disgraceful" magically translates into "no doubt" you intend to prosecute them. Firstly, Bush hasn't said that and secondly, as the bartender said when the horse bellied up to the bar, "Why the long face?". If they are guilty of breaking the law they should be prosecuted, and if they aren't that will come out in court. The press is not immune to the same rules that govern the rest of us.

So there must be some other danger. Ah! Physical threats against the press!

Not quite. Here's his first example from Powerline:

It is unfortunately past time for the Bush administration to enforce the laws of the United States against the New York Times. The Times and its likeminded media colleagues will undoubtedly continue to undermine and betray the national security of the United States until they are taught that they are subject to the same laws that govern the conduct of ordinary citizens, or until an enraged citizenry decides, like Bill Keller, to take the law into its own hands and express its disagreement some other way.

There is a vast difference between personally stating an intent to attack someone, explicitly inciting others, and merely observing that others may decide to take the law into their own hands. Guess which one Scott was guilty of? There was no threat in the Malkin post; apparently just uttering the hated name 'Malkin' justifies the most vile suspicions - no proof needed. And InstaWhosit's "threat" consists of.... the very same observation Scott made:

The real danger is that we who support the war will reach the point that we say "we might as well be taken as wolves then as sheep". At that point the left can celebrate that they have made our military and those who support it the people they claim we are. Once that happens however any compunction about respecting them will be gone, and remember one side is armed and one is not.

[Ingemi] That is a fate that I don't wish on any of us.

[InstaWhosit] Neither do I.

Ooh. Mommy, I'm scared. The bad man said he didn't want other bad men to hurt me! It's a threat!

Greenwald seems blissfully unaware that it's not exactly credibility-enhancing to make an ass of yourself by throwing around unsubstantiated charges before getting to the meat of your post. But on to the good part.

2. The clear rationale underlying the arguments of Bush supporters needs to be highlighted. They believe that the Bush administration ought to be allowed to act in complete secrecy, with no oversight of any kind.

The Straw Man rears his ugly head. No one is saying there shouldn't be oversight. We simply want that oversight to take place through legal channels, with due regard for secrecy. This means no disclosures of secret information. If a leaker approaches you, your first question should be, "Have you taken this to the House Permanent Select Committee on Intelligence? No? Well, if you're scared, give it to me and I'll do it." End of story.

Again, the Times is ignoring the law. Intelligence oversight is, BY LAW, to occur through the House, not on the front pages of the NYT. They are usurping a power delegated to Congress with no authority from the electorate. Hey - if you're really paranoid, keep a copy and tell them if you don't start seeing hearings on this, you'll expose them. At least then, you can say you went through legal channels. Once more, with feeling: we don't get to break laws we disagree with.

3. There is not a single sentence in the Times banking report that could even arguably "help the terrorists."

Impressive. This is opinion, not fact. And whose opinion? Is Mr. Greenwald a counterterrorism expert? Is Bill Keller? Who gave them the authority to override the decisions of intelligence professionals on our behalf? Oops... I forgot. Just trust them. As to his contentions that this information was already available via other means and that would-be terrorists therefore already knew about our tracking, I have a few questions for Mr. Greenwald:

a) If the terrorists (and those who fund them) all already knew, then why on earth did some of them get caught via the very tracking program they supposedly were aware of?

b) If the Times revealed nothing that wasn't already in the public domain, then why didn't the Times use those public sources to inform its reporting? That way, the worst anyone could accuse them of was making life easier for terrorists. Which is bad enough, arguably, but not a crime.

c) If, as Glenn alleges, "everyone" already knew about the program, what are Democrat members of Congress (and Arlen Specter) so outraged about, and why didn't they exercise oversight (assuming they possess statutory authority over this type of operation)?

d) If, as Glenn alleges, the program was common knowledge, how can they accused the Executive Branch of excessive secrecy? Once again, you can't have it both ways. Either this was a secret program the Times brought to light, or it was common knowledge and (arguably, though I don't agree) Congress is asleep at the wheel. But then, if the administration hasn't tried to conceal this program, is it really fair to accuse them of bad faith?

Logic is fundamental, but sadly missing from Glenn's post.

5. Glenn asks, I answer:

I would ask these bloggers how the line between what and what can not be published is to be drawn?

Easy. It's called the law. Classified info, by definition, cannot be published. That's why we call it "classified". NYT Editors can no more unilaterally decide to "declassify" it than Ronald McDonald can.

If journalists can be prosecuted for publishing what their conscience tells them to be information vital to the public interest, what is to stop the government from classifying anything that it does not want to be known?

This amounts to an argument that the government has no right to classify information. Simply put, we do not bar entire activities because power can be abused. If you have credible evidence power is being abused (or even unformulated concerns that it might be), exercise your rights under the law and make your case to the lawful authority designated to handle such matters: the House Permanent Select Committee on Intelligence. Unelected and unappointed persons do not have the right to usurp power the public never gave them and the law does not provide for.

How are we to decide when a journalist can be prosecuted and when he can not?

Good God. "We" don't get to decide that. Isn't that why we have grand juries?

Are we really that willing to give the federal government such a tool as the ability to prosecute the press for revealing information it wishes to keep hidden?

Again, a mind-numbingly idiotic statement. Read the Constitution. Congress makes laws. The Executive Branch enforces them. Do we really want to maintain the Executive Branch can't enforce laws passed by Congress? Apparently so.

Brief summation coming...

Over and over again in his arguments, Glenn makes the same three logical errors:

1. Trying to have it both ways. The administration was being overly secretive while paradoxically blabbing the details to all and sundry. Which is it, Mr. Greenwald?

The administration has to follow the law, but Bill Keller doesn't. Creative, but hardly convincing. If Mr. Keller can substitute his conscience for the law any time he "thinks it's right", then the end must justify the means. What's to prevent the President from substituting his conscience for the law?

If the President is somehow illegally "bypassing" Congress, didn't Bill Keller do the same thing by bypassing the House Committee on intelligence? Over and over again, we hear the same argument: "But I can break the law because I'm right. Just trust me."

Is the idea that the Times broke the law really "simply outside the scope of rational thought"? Then the case will never get past a grand jury, and even if by some miracle it did, how exactly is Bush going to coerce a jury into convicting innocent men? By placing frilly panties on their heads and blasting Christina Aguilera CDs?

In Glenn's world, the Executive Branch is overreaching by exercising its Constitutionally-delegated power to enforce the law.

2. Confusing the roles of private citizens with those of our elected and appointed officials.

Congress makes laws and is empowered to exercise oversight over the intelligence community. The Executive Branch is empowered to enforce the laws and keep us safe.

Private citizens are empowered with neither of those functions. If you have a complaint against government, your legal recourse is to Congress and the court system. You don't get to break the law because you don't agree with it. Private citizens may not substitute their judgment about what terrorists can and cannot use for that of public servants. The reasons are simple:

a) Bill Keller isn't even in the terrorism business, so his opinions about what may be useful to terrorists, while highly entertaining, are irrelevant. Had he confined the Times' reporting to information already in the public sector, he would be untouchable. So why didn't he?

b) Keller has no legal authority to effectively "declassify" information he doesn't think should be secret. He does not represent us and has no legal oversight authority. His private opinions do not supercede the law, and in any event one of the most predictable consequences of civil disobedience is that you may be prosecuted. Keller (and Glenn) want the press to be above the law without any public discussion or review of their actions. That's utter nonsense.

3. Confusing free speech with "attacks": perhaps the most ironic aspect of Glenn's argument is that he wants to choke off public debate over a controversy that Keller alleges is about the public's right to debate controversial issues.

Got hypocrisy?

Update: Patterico has a great discussion on the statutory authority for prosecuting journalists with both pros and cons.

Posted by Cassandra at June 28, 2006 08:05 AM

Comments

See what happens when you argue with liberals? You made the classic mistake of assuming tht they are intellectually honest. They are not. They are driven by "feelings" and ideology. You will never persuade them, because they are fanatics who believe the righteousness of their cause (if they believed in God) is more important than a few inconvenient facts. You would have better luck trying to persuade Osama its OK to eat pork.

You would have a better discussion asking Oleg to debate the inevitable victory of international communism.

Posted by: a former european at June 28, 2006 12:29 PM

Mi amiga - you shortened *my* life with this quarto!

But I'm interested in all this "arm-waiving!" (1)(b)

Does that mean I waive my rights to arms?

So, does that mean I give up the Arsenal, or that I qualify for Project Valour-IT?

Impishly enquiring minds want to know!

Posted by: John of Argghhh! at June 28, 2006 03:39 PM

This post served several very important functions. First, it educated me on the sound logical arguments on this subject. Second, it exposed the weaknesses of various left wing arguments. And thrid, for about 20 minutes it took my mind off the fact that I am so terribly, depressingly alone. All three gifts are to be cherished -- like one of those 800 numbers I can call for conversation.

Posted by: Lonely Man at June 28, 2006 04:11 PM

Damn it Cass, all this talk about the press violating the law is just a distraction from the real issue here. Many on the left know that this President has facism in his heart. We can't wait for him to say or do something facist, the New York Times must act pre-emptively. Please don't stand in the way.

Posted by: Pile OnĀ® at June 28, 2006 06:04 PM

Pile:

We missed you :) And you're right (but then you knew that, didn't you?)

Posted by: Cassandra at June 28, 2006 06:07 PM

And John, thanks. I don't know why on earth I keep typing "waiving" when I mean "waving". I do know the difference, but apparently my fingers don't.

Posted by: Cassandra at June 28, 2006 06:08 PM

Freedom of the press has always had the Dan Rather imprimatur on it: Report and be damned. First of all, I do not want the press determining for me what is classified and what isn't.

There are some things that are needed for our safety. I have not given up writing checks, using cash or otherwise moving about freely, as that has NOT been curtailed. Nor has my identity, my ability to make transactions been harmed by this plan.

What has been compromised is the ability to monitor those who would destroy our freedom. Last I checked, they were the enemy, and those who aid and abet the enemy are no friends of mine and cannot be trusted.

So, if Bush isn't going to throw the damned reporters in jail, it is up to the bloggers of both sides who deplore this type of thing to give the MSM enough rope to hang themselves.

Helk, Dan Rather did.

Posted by: Cricket at June 28, 2006 06:34 PM

Welcome back, Pile Juan. How is the On family?

Posted by: Cricket at June 28, 2006 06:36 PM

> To argue that some leaks of classified information are fine because you happen to agree with the motivation of the leaker is ludicrous.

It is, however, highly consistent with past liberal behaviors.

The Modern Liberal motto (32521 is a series of 59,298,394):
Never let unmitigated hypocrisy prevent you from taking a stance for what you believe in.

Posted by: OhBloodyHell at June 29, 2006 04:50 AM

> Logic is fundamental, but sadly missing from Glenn's post.

No, there's logic. Just remember, deductive reasoning is *always* subject to GIGO. If your premises are shit, the end result will be shit.

Posted by: OhBloodyHell at June 29, 2006 05:08 AM

> NYT Editors can no more unilaterally decide to "declassify" it than Ronald McDonald can.

Certainly they can. But they do so with the risk of prosecution over their heads. This causes them to ask the all-important question:
Which is more important -- My Freedom or The Public's Need To Know THIS Information?

Check and Balance.

It's how the Real World is supposed to work, something the Liberals have manifestly forgotten...

Posted by: OhBloodyHell at June 29, 2006 05:19 AM

Yes, Ronald McDonald cannot declassify items. I believe Mayor McCheese has that power, though.

Posted by: a former european at June 29, 2006 01:07 PM

Can we all go to Playland now?

Cass, this was one of your more stellar reads. I really really really exponentially hope you are shopping this stuff around, and have an agent or something.

Posted by: Cricket at June 29, 2006 01:56 PM

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