Skip to comments.Itís Fish or Cut Bait Time, Mr. Attorney General
Posted on 06/24/2006 3:30:12 PM PDT by oldtimer2
Its Fish or Cut Bait Time, Mr. Attorney General
June 24th, 2006
In March, Gabriel Schoenfeld wrote a brilliant piece in Commentary in which he argued that the New York Times revelations about the NSA program warranted prosecution under Section 798 of Title 18, the so-called Comint statute. In the article he details the history and language of the Act and its 1950 amendment and argues that the language is unambiguous and certainly covers the papers disclosures of the NSA program, which substantially harmed our counter terrorism activities. Here are the critical provisions of the Act:
§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 processesShall be fined not more than $10,000 or imprisoned not more than ten years, or both. (b) As used in this subsection (a) of this section The term classified information means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution; Section 798 continues: The term communication intelligence means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients; The term unauthorized person means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.
Schoenfeld argued in March:
What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism. If information about the NSA program had been quietly conveyed to an al-Qaeda operative on a microdot, or on paper with invisible ink, there can be no doubt that the episode would have been treated by the government as a cut-and-dried case of espionage.
Publishing it for the world to read, the Times has accomplished the same end while at the same time congratulating itself for bravely defending the First Amendment and thereby protecting usfrom, presumably, ourselves. The fact that it chose to drop this revelation into print on the very day that renewal of the Patriot Act was being debated in the Senatethe bills reauthorization beyond a few weeks is still not assuredspeaks for itself.
The Justice Department has already initiated a criminal investigation into the leak of the NSA program, focusing on which government employees may have broken the law. But the government is contending with hundreds of national-security leaks, and progress is uncertain at best. The real question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate secret and what is not. Like the Constitution itself, the First Amendments protections of freedom of the press are not a suicide pact. The laws governing what the Times has done are perfectly clear; will they be enforced?(Id.)
Since that time, the Washington Post followed suit, revealing a story which exposed what a fired CIA official said was secret overseas prisons. While the substance of that story has not been proven, the fact remains that the paper printed it, as the NYT printed the NSA story, in apparent disregard of National Security.
And since both of these papers were the initial megaphones for Joseph A Wilsons phony tale of his Mission to Niger and mau-maued for the appointment of an independent prosecutor to investigate who they then brayed, incorrectly, had been responsible for the outing of an undercover agent which had grave national security implications, their hypocrisy is writ large.
But still, the Department of Justice diddles, taking no apparent action at all. (In contrast to the hyped Plame case where it acted far more quickly to pursue a matter where the special prosecutor now says he will not claim Plame was covert or that anyone leaked that fact, or that national security was harmed.)
The failure to act has only emboldened the leakers and the press to continue to undercut the war effort. The latest move is the New York Times report on the way the U.S. tracks terrorists movement of funds from financial institutions. In this case, as in the NSA leak, Congressional members of the intelligence committee, Republican and Democrat, asked them not to print this information disclosure of which was harmful to national security. As in the NSA case, the White House warned the paper not to publish this information.
And again the unelected editors of the paper arrogantly ignored this admonition. The very people arguing often that war might not be the answer, that law enforcement and intelligence are sufficient to protect us, are also doing everything they can to make those tools unavailing.
And this latest leak seems to seriously jeopardize our counter terrorism activities. As a reader wrote to Glenn Reynolds:
[quote]What has not been stressed is that SWIFT is not used for individuals. It is used for processing money transfers, stock transfers and bond transfers from companies, governments, banks, insurance companies and NGOs. What we essentially had on file was the holdings for almost all our clients and the clearance data for these transactions dating back for years. We had to keep all this on file to satisfy all the governmental regulations on taxations, etc.
What the NY Times has essentially done is open up to the terrorists the trails of all their transactions and how the banking procedures of money laundering was done for them by the system. They have essentially stopped dead the ability to track this money and keep it from being put in the hands of our worst enemies. Whether the terrorists might have guessed that their money was being transferred is a moot point. The NY Times had told them that their worst fears have been realized and that they need to find another way to move money around the world. They know it for sure now. Thank you, Bill Keller, and when the nice young man or woman from down the street is killed by one of these terrorists I can thank you for that as well.
If Schoenfeld is wrong, and the Act is insufficient to prosecute these breaches of security by the leakers and the publishers, than the Attorney General should have proposed new legislation. He hasnt. Therefore, I assume Schoenfelds point is correct: the Act is adequate to proceed.
So, whats keeping the Attorney General from acting to halt this bleeding of critical information to our enemies?
Frankly, if he doesnt act soon, Attorney General Gonzales should be removed and replaced by someone with the will to Act . Failing to Act is simply emboldening further those who apparently think the war on the war on terror is more important than what our elected officials consider critical to the war on terrors success. Clarice Feldman is an attorney in Washington, DC and a frequent contributor.
Lets see the publisher, editor, and reporters do ten years at least.
The Sulzberg Family owns 91% of All Class B shares giving them controll. If Gun Manufacturers and Tobbacco companies can be sued for harm why aren't these folks perp walking?
I think this article should have been addressed to the President, rather than the Attorney General. The Attorney General is just proceeding the way the President wants him to.
I'd like to see a $100M fine for the company and 25 years in prison for the perps.
This will keep happening until someone takes action. As far as I'm concerned, it's long over due and the penalties upon conviction should be severe (hanging).
Can you imagine the cat fight if the NYT was taken to court ? I don't see it happening unless irrefutable evidence of harm to US WOT efforts can be shown - which could require more (leakable) classified material to be used.
The clincher is it's an election year so there won't be any AG action. People should shame the NYT by letters (not emails), cancellation of subs, write to their advertisers especially if you live in NY and so on. If you hold stock, sell it...
It was time 'yesterday' -
But today - we need to all freep Gonzales big time.
By not acting, he becomes an aider and abetter to their crimes - and encourages them to continue...
Correspondence to the Department, including the Attorney General, may be sent to:
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
E-mails to the Department of Justice, including the Attorney General, may be sent to
Check the holdings of your mutual funds. If they've got NYT stock in your funds, get out and tell the fund manager, who is either stupid and/or liberal for having such a dog stock in there in the first place, why you got out.
You can use this for reference:
PRICE (T.ROWE) EQUITY INCOME FUND 7,750,000 5.35 $196,152,500 31-Mar-06
FIDELITY EQUITY-INCOME II, FUND 4,738,110 3.27 $133,709,464 28-Feb-06
PRICE (T.ROWE) MID-CAP VALUE FUND 2,364,800 1.63 $59,853,088 31-Mar-06
FIDELITY EQUITY-INCOME FUND 2,255,655 1.56 $63,835,036 31-Jan-06
PRICE (T.ROWE) CAPITAL APPRECIATION FUND 2,098,000 1.45 $53,100,380 31-Mar-06
VAN KAMPEN SERIES FUND INC.-GLOBAL FRANCHISE FUND 1,835,917 1.27 $46,467,059 31-Mar-06
VANGUARD 500 INDEX FUND 1,362,604 .94 $34,487,507 31-Mar-06
FIDELITY CAPITAL APPRECIATION FUND 1,340,165 .93 $37,926,669 31-Jan-06
FIDELITY PURITAN FUND INC 1,314,820 .91 $37,209,406 31-Jan-06
FIDELITY VALUE FUND 1,311,600 .91 $37,118,280 31-Jan-06
did you forget the /s ?
Are you being factitious?
Or maybe I am misinformed - are you saying the Attorney General's job is simply to sit and wait for orders from the President?
Inquiring minds want to know....
I hate to come down on the side of the NY Times on any issue, but in this one I think the U.S. Justice Department will have a hard time convincing anyone -- including themselves -- that any law was broken in the case of the so-called NSA "leaks."
Some editing was in order.
Think -- Fiduciary responsibility to the minority shareholder is the key term.
Gonzales should be fired.
Lets see the publisher, editor, and reporters do ten years at least.
How about the traitor inside our own government? The rush to kill the messenger is not good. Who leaked the classified intel? And why?