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On Prosecuting Leakers and the Media

The video of the American Constitution Society's panel conference on leakers and the press is now online.

On June 17, ACS hosted a panel at the 2006 National Convention exploring the consequences of leaks of confidential and classified information by government employees and potential related prosecution. Panelists discussed government attempts to prosecute leakers and assertions that it can prosecute members of the press who report based on classified information. The panel also examined whether greater protections should be afforded journalists in protecting sources and the effect of leak prosecutions on debate in a democratic society.

The video is here. In the photo (larger version here): 9th Circuit Judge Stephen Reinhardt, me and conservative law professor Maimon Schwarzschild. Also on the panel were moderator and Law Professor Geoffrey Stone and media attorney Laura Handman. Happily, Professor Schwarzschild was outnumbered.

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  • Re: On Prosecuting Leakers and the Media (none / 0) (#1)
    by scribe on Mon Jun 26, 2006 at 02:30:24 PM EST
    Let us remember Zenger, Wilkes and, for that matter, Franklin. As to Zenger's lawyer, who succeeded in defending him against charges of publishing seditious libels (the allegation generally being that New York courts were rigged... plus ca change...), the people of New York City gave him an award (a golden box), engraved: "acquired not by money, but by character." Ironic, no, that a representative from New York, named King, would call to have the New York paper prosecuted. ... Someone ought to refresh his historical education. As to Wilkes, he was prosecuted for seditious libel, i.e., criticzing the King, though I like the following vignette best:
    Lord Sandwich (former friend): shouted to him "You, Sir, will either die of the pox or the gallows!" Wilkes responded "That would depend on whether I embrace your lordship's mistresses or your principles."
    We must remember Franklin as, effectively, the patron saint of leakers and those who print their leaks. He publicized leaks while pushing the then-colonies' case and, per wikipedia:
    [While in London] Franklin obtained some private letters from Massachusetts governor Thomas Hutchinson and lieutenant governor Andrew Oliver which proposed restrictions on colonists' freedoms, and sent them to America. The discovery that it was he who had illegally distributed the letters meant the end of his political career in London, and the end of hopes for a peaceful solution to the escalating trans-Atlantic dispute. He was dismissed as deputy postmaster-general for North America, and left London in March 1775.
    He made out all right even after "the end of his political career...." We need more leakers, not fewer, and more newspapers and media to pubish them.

    Re: On Prosecuting Leakers and the Media (none / 0) (#2)
    by kdog on Mon Jun 26, 2006 at 02:55:56 PM EST
    Good stuff scribe. I can totally picture Peter King calling for the arrest of a Benjamin Franklin. One man's leaker is another man's whistleblower...or patriot. It's our information on our tactics paid for on our dime. I certainly want to know what the govt. is up to....the press is all we've got to find out. An attack on the free press is an attack on America.

    Re: On Prosecuting Leakers and the Media (none / 0) (#3)
    by BigTex on Mon Jun 26, 2006 at 03:10:16 PM EST
    Depends on how the press is acting Kdog. The leakers of old and the leakers of today are in some cases two different breeds. Nothing wrong with leaking an ill that is happening. That's honorable, a patriotic act, service to your country. It's another to leak as a propoganda tool... espically when the facts don't pan out as presented. Take the Rove indictment story. Turned out to be false. Was leaking that patriotic? Nope, not in the slightest. The situation would be different if the papers would do the honorable thing, like they would do in the olden days, and issue a public apology for their maligning the subject of the leak. That hasn't happened, and in the age of blogging, the information spread farther and wider than it would have in the past. To the extent that the leak isn't hurting the nation in a tangable manner, and isn't taking aim at someone without proper facts to verify the info, then leaking has it's place in it's storied and honorable past. But when leaking is done for political reasons or to harm someone them media has changed to a point that it should be condmned in the strongest terms possible.

    Re: On Prosecuting Leakers and the Media (none / 0) (#4)
    by Dadler on Mon Jun 26, 2006 at 03:26:29 PM EST
    I'm about halfway through this thing and professor Schwarzschild hasn't shut up since he first started talking. He must be breathing through gills.

    Re: On Prosecuting Leakers and the Media (none / 0) (#5)
    by jondee on Mon Jun 26, 2006 at 03:35:25 PM EST
    Tex - Anytime "leaked" info threatens the credibility of a powerful organization of any kind, there's going to be a damage-control responce which generally includes a counter propaganda campaign to discredit the leaker. And in the case of the govt, the predictable responce will almost always be, as it was in Nixon's debacle, that any damge to the administration is damage to "the nation" and "politically motivated" etc And it may be a false distinction to claim something is done for either political or patriotic reasons, when we consider that most peoples political beliefs conjoin with what they believe is for the good of the nation.

    Re: On Prosecuting Leakers and the Media (none / 0) (#6)
    by Sailor on Mon Jun 26, 2006 at 04:01:46 PM EST
    Nothing wrong with leaking an ill that is happening. That's honorable, a patriotic act, service to your country.
    I'm glad you agree that leaking illegal acts by the gov't is a good thing (see wiretaps, bank records, illegal war.)
    It's another to leak as a propoganda tool... espically when the facts don't pan out as presented.
    Uhh, like when bushco leaked Plame's name?

    Re: On Prosecuting Leakers and the Media (none / 0) (#7)
    by jondee on Mon Jun 26, 2006 at 04:06:32 PM EST
    Also the Leopold-Rove deal dosn't really qualify as a "leak" in the strict sense of the term. After all, there was nothing to leak.

    Re: On Prosecuting Leakers and the Media (none / 0) (#8)
    by jimakaPPJ on Mon Jun 26, 2006 at 04:24:57 PM EST
    Scribe quotes:
    [While in London] Franklin obtained some private letters from Massachusetts governor Thomas Hutchinson and lieutenant governor Andrew Oliver which proposed restrictions on colonists' freedoms, and sent them to America.
    Apples and oranges. Franklin was a rebel. Are you saying that of the NYT?

    Re: On Prosecuting Leakers and the Media (none / 0) (#9)
    by Sailor on Mon Jun 26, 2006 at 04:56:29 PM EST
    Apples and oranges. Franklin was a rebel. Are you saying that of the NYT?
    Franklin was a patriot, unlike you.

    Re: On Prosecuting Leakers and the Media (none / 0) (#10)
    by jimakaPPJ on Mon Jun 26, 2006 at 05:55:25 PM EST
    Sailor - So you consider publishing a perfectly legal weapon an act of patroitism?? Huh?? My point remains. Franklin was a rebel, and his actions were justified. What say you about the NYT? Perhaps Scribe would like to change his comparsion.

    Re: On Prosecuting Leakers and the Media (none / 0) (#11)
    by Sailor on Mon Jun 26, 2006 at 07:10:20 PM EST
    ppj, if it's a perfectly legal weapon, and bush admits the terrerists already know about it, why is there a problem with publishing it? And actually, no one has decided on the legality of it except for a few war criminals in the WH. But then I'm not surprised that you wouldn't know the truth about this, since you seem to have a problem with the truth.

    Re: On Prosecuting Leakers and the Media (none / 0) (#12)
    by Andreas on Mon Jun 26, 2006 at 07:12:57 PM EST
    I have watched more than half of the video and then lost interest. Maimon Schwarzschild might have been outnumbered but he was dominating the discussion. This was not because of any strengths of his arguments but because none of the other particiants talked about some simple truths: that the regime systematically breaks the law and threatens the rule of law, that the regime consists of war criminals, that the regime is now preparing a dictaturship in America, etc.

    Re: On Prosecuting Leakers and the Media (none / 0) (#13)
    by scribe on Mon Jun 26, 2006 at 07:29:11 PM EST
    JimakaPBJ: No f'g way. To put it in bluntest terms, Franklin was acting in the highest and best traditions of liberty and law. He was acting in furtherance of the law and the legal duties under which he was bound. Period. Franklin became aware, by receiving copies of the letters, that the agents of the government (the Mass. Colonial governor being an appointee of the Crown, serving at its pleasure, and the letters' intended recipient likewise) were engaged in a conspiracy* to subvert and destroy the liberties of citizens in the name of preserving the government or enhancing security or collecting taxes or whatever excuse or pretext they were using, all the while mocking those same liberties. At the time Franklin became aware of this conspiracy, he was engaged as an agent of the citizens (whose liberties were at stake), trying to petition the government to effect a reconciliation so as to avert open warfare. Lexington and Concord, in response to and defense against depredations by the government (same being under the aegis of the author and recipient of those letters) against citizens and their liberties had already happened. Franklin was trying to avert the final slide into open warfare (which took until December 1775 and Washington's encirclement of Boston to really get moving). That the letters showed Franklin his mission would be futile because the government had decided oppression through force was the course already decided upon was information he - as agent** of the citizens - would be obligated to share with them. While one could argue that he was not entitled to publish the letters, that argument falls of its own weight. He was obligated to forward the information and to communicate it to his employers - the citizenry. The best and surest way to ensure its dissemination and collaterally to possibly salvage his mission of reconciliation was to publish them. The mission of reconciliation might have been salvaged if the letters' publication could be used to embarrass those in power into abandoning their course, through the outcry of an enraged citizenry or, if need be (as someone else put it, Squeaky(?)) a duck farm and the La Brea tar pits. In other words, publishing the letters might avert a war. That it failed to do so is, in the hindsight of history, irrelevant because history's hindsight is not what Franklin operated under. He had to decide, minute by minute, how to then fulfill his duties to his principals and try to avert open warfare and effect reconciliation with England. Transmitting and publishing the letters was the best course to do so and, even if it failed, would give his principals warning that their material interests - liberties - were in danger, following which they could act accordingly. The same arguments can be made in favor of today's leakers and publishers of things the government is doing that violate the law and which they'd just as soon you never knew about (at least until it was too late). The EFF has recently been allowed to publish the affidavit of its' expert in the EFF v. ATT case (you can find a link through Salon.com), over the NSA linking into ATT's internet nodes. I spent some time today tearing it apart elsewhere - it's 40 pages long - but his central conclusion is that the only reason for the kind of installation done was to capture all the internet traffic for a massive distributed surveillance system which would and does sort not only by addresses, but also analyzes content. There's no analytical, legal, constitutional, moral, or philosophical distinction you can make (which withstands logic, anyway) capable of finding any daylight between the conspiracy Franklin exposed, and the program in EFF v. ATT. And the same applies for the rest of the atrocities pushed by the current admin - secret prisons in former Soviet Gulag hellholes, Air Torture, Gitmo, the medical profession whoring itself into facilitators of torture, Abu Ghraib, military tribunals without fixed rules, domestic spying, the so-called PATRIOT Act, Plame, wars based on lies, and the list goes on and on. "Acquired not by money, but by character" - one could say the current administration is the exact antithesis of that fine sentiment. We should be glad for the whistleblowers and the leakers, encourage them, and hail the press who have the courage to print their stories. I'm right, you're wrong and there's no argument you or any troll can make which has any chance of changing that. --- *Defined as an agreement between two or more persons, to (a) perform an unlawful act by any means, or (b) a lawful act by unlawful means, with at least one of them performing some overt act in furtherance of their common design. ** An agent (here, Franklin) owes a fiduciary duty of loyalty to his principal (here, the citizens who had employed him and sent him to petition) and part of that duty is sharing with them information material to their situation which the agent may come into possession of when about their business. Franklin's sharing the letters with the citizens of America was not only the morally right thing to do, it was required by the law of agency and therefore lawful. Not sharing that information would have been unlawful - a breach of his duty of loyalty to his employers.

    Re: On Prosecuting Leakers and the Media (none / 0) (#14)
    by jondee on Mon Jun 26, 2006 at 07:29:38 PM EST
    Their big, open secret: no democracy in time of war. And its always a time of war.

    Re: On Prosecuting Leakers and the Media (none / 0) (#15)
    by scribe on Tue Jun 27, 2006 at 08:18:05 AM EST
    Rogan - the problem with your argument is palpable. Government employees, (whom I think we can agree form) the vast majority of leakers, swear an oath "to support, uphold and defend the Constitution of the United States against all enemies foreign and domestic and to bear true faith an allegience to the same...." Nowhere do they swear an oath to blindly obey whatever lawless command a person in a superior position may give them - their oaths are qualified that they swear to obey the lawful directives of those appointed over them. Your last paragraph makes no sense: the Soviets built the first H-bomb, exploding it about a year prior to the US' first H-bomb. The people who (were accused of having) provided information to the Soviets* about the atomic bomb, who knows what their motiviations were? More importantly, though, your argument assumes that had their information been critical to the Soviets and unobtainable elsewhere, the Soviets would not have obtained the bomb but that history would have turned out the same way regardless. We cannot know (a) whether this was true and, more importantly, (b) whether, say, the lack of a Soviet bomb would have encouraged those in the US gov't to go ahead and use ours in, say, Korea or, say, against the Red Chinese, or, perhaps, the Soviets. At the time, there was a lot of pressure for all three and, importantly, atomic weapons were considered just a bigger bang, not the major threshold they have since become. So, keep to the point - leakers perform a public good, even if it might not look like it at the time. * whether the Rosenbergs, Greenglass and so on were truly guilty or not (and just scapegoated) is an issue which is insoluble at this remove; I'll assume for this discussion that they did.

    Re: On Prosecuting Leakers and the Media (none / 0) (#16)
    by BigTex on Tue Jun 27, 2006 at 02:33:56 PM EST
    It's another to leak as a propoganda tool... espically when the facts don't pan out as presented.
    Uhh, like when bushco leaked Plame's name?
    It is what it is, doesn't matter who is the leaker. I don't descriminate based on the ideology of who leaked. All the more reason to treat leakers and the media harshly though. Both sides are leaking, and the media is at least complicit, if not eager to participate. Journalism used to be an honorable profession. That time has long sense passed. If it hadn't this type of discussion would not be necessary.