Just For the Record

For those of you who don’t read Glenn Greenwald but thought Wikileaks should be shut down for publishing the leaks about the war in Afghanistan, here’s Robert Gates:

“The initial assessment in no way discounts the risk to national security,” Gates wrote. “However, the review to date has not revealed any sensitive intelligence sources and methods compromised by the disclosure.”

Gates hedges his words, but his commanders in the field do not:

But a senior NATO official in Kabul told CNN that there has not been a single case of Afghans needing protection or to be moved because of the leak.

Those of you who treated this leak like the biggest security breach since the Rosenbergs can now rise from your fainting couches, unclutch your pearls, and put away the smelling salts.

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126 replies
  1. 1
    beergoggles says:

    oh noes, mistermix is being mean to the drama queens..

  2. 2
    tomvox1 says:

    Who is “those of you,” kemosabe?

  3. 3
    Jack Bauer says:

    In before the useful idiots.

    I’m getting the smelling salts ready for the Iraq doc dump, as I’m sure many of the Very Serious Security People here will be fainting to the floor faster than you can say “legalized policy of torture”.

  4. 4
    wilfred says:

    Damn you, Julian Assange.

    I swear, if one of the hundred of thousands of dead Iraqis get any more deader because of these leaks their ashes will be on your forehead,

  5. 5
    cat48 says:

    Actually, I never asked they be shutdown. I just think Classified and Top Secret should mean something. I worked a few yrs with that type of document and I was told I would be fined a huge amount of money or put in jail if I disclosed it. I just don’t think you give away info on anything DURING a war. Simple as that.

  6. 6
    cleek says:

    @cat48:
    i’d be willing to bet that we will never not be “at war”, for the rest of my lifetime.

  7. 7
    burnspbesq says:

    So we have lucked out so far. Big fat hairy deal. The principle remains: people who conspire to steal classified materials should go to jail for a very long time.

  8. 8
    wilfred says:

    @burnspbesq:

    And people who conspire to manipulate the country into illegal wars?

    Look forward, I say.

  9. 9
    soonergrunt says:

    @cat48: What the cat said.
    I also think that motivations matter, and Assange’s motivations are more about hurting my country than they are about ‘freeing’ information, as Wikileak’s own staff attest.
    Lastly, I guess I’m old fasioned, but I have no use for flippant hipster snark substituted for thought when the lives of people about whom I care are or may be on the line.

  10. 10
    soonergrunt says:

    @wilfred: I don’t think you’re going to find anyone here who thinks that Bush and Co. should be let off the hook for that. Please direct your ire to 1600 Pennsylvania Avenue, and while you’re at it, remember that “he did it first” is not even an acceptable excuse for five-year-olds.

  11. 11
    Face says:

    @cleek: This. And I aint that friggin old.

  12. 12
    Ash Can says:

    If it really is the case that the document dump didn’t appreciably endanger anyone, then that’s great, and I feel much better about it. However, I trust no one’s feelings will be hurt if I say I have more confidence in the statements of Robert Gates and a senior NATO official in Kabul than in those of all the bloggers, commenters, and Glenn Greenwald combined. By a wide margin.

    ETA: Their statements on this matter, that is.

  13. 13
    homerhk says:

    The point is who is Assange to judge what might or might not endanger lives? As Cat says, classification ought to mean something and if individual people can willy nilly decide that such and such a document shouldn’t be classified and publicly release them that is just an incredibly dangerous situation.

  14. 14
    jrg says:

    A question for those of you who think this material should not have been released – do you think that Americans had the right to know about the My Lai Massacre, or do you think that exposing it placed Americans in danger, therefore it should have been covered up?

  15. 15
    Maude says:

    @soonergrunt:
    Some people don’t understand why it is dangerous to have classified documents released to the public.
    All I can say is that I’m glad the current Wikileaks wasn’t harmful.

  16. 16
    mistermix says:

    @burnspbesq: So let’s lock up Bill Keller and the rest of the NYTimes staff who knew about this awful leak beforehand but conspired to keep it quiet.

    @soonergrunt: If it’s being a flippant hipster to defend the rights of a free press in the face of a hysterical assault, guilty as charged.

  17. 17
    Omnes Omnibus says:

    I think it is great that no one has needed protection due to the leaks. The concern expressed by a large number of people, myself included, was that information that put people at risk could be in the documents and that Assange had taken no precautions to deal with such a situation. Indeed, Assange apparently did not care about that issue. During the last debate about this, I said that if something bad happened to someone as a result of the publication, Assange would bear some moral responsibility. I stand by that assessment.

  18. 18
    cleek says:

    we already know documents are routinely classified for no reason. we know the entire “State’s Secret” privilege came out of a case in which the government lied about the presence of classified information.

    the government has given us more than ample reason to distrust both the classification system and the government’s claims of secrecy.

  19. 19
    Punchy says:

    Just wait until he hacks the WOPR and then blogposts the launch codes.

  20. 20
    BR says:

    OT, but not that OT: Could someone explain to me why Eric Holder is nowhere to be seen or heard regarding the now at least 3 year-old mess on Wall Street (especially given recent events), but when the voters of CA consider legalizing pot, he suddenly pipes up to bring the boot down?

    How can we convey to him that his priorities are misplaced?

  21. 21
    jrg says:

    @Maude: That’s bullshit. Anyone with any common sense knows that we shouldn’t release the design of a stealth bomber, or something of that nature.

    People question the reasons why something is classified. If it’s classified to cover a lying politician’s ass, that’s not enough to invoke “national security” as a defense. This would be lesson number 1,567,490 from the Bush presidency.

  22. 22
    homerhk says:

    Mistermix,

    Freedom of the press is not absolute. It certainly does not overcome legitimate issues of national security/classification. It seems to me that some arguments in favour of Assange and wikileaks is based upon the notion that nothing should have the benefit of being secrety owing to national security and that nothing should be classified top secret or otherwise. If that’s the view, then fine but it should be made clear. If it’s not, then there has to be some consistency. Here’s a question to those who support Assange and the leaks thus far: would you have any problem in someone leaking, and Wikileaks publishing along with the NYT, WP etc details about US nuclear codes, or details of how intelligence is collected in foreign jurisdictions (i.e. which parties have worked with the US etc.)? If so, I don’t really see the clear distinction in this case.

  23. 23
    BH says:

    @homerhk:

    Let me re-write that for you:

    The point is who is the military to judge what crimes and misdeeds they can hide or not hide? As Cat says, classification ought to mean something and if individual people can willy nilly decide that such and such a document shouldn’t be classified and publicly release them, that is an important check on the powerful and the corrupt.

  24. 24
    mistermix says:

    @Omnes Omnibus: Wikileaks did remove some documents. Apparently they did at least an “OK” job. The Times removed some more, but why was their judgment so much better than Wikileaks? What actually happened, IMO, is that the Times used a bunch of “we’re protecting the troops” rhetoric as inoculation, versus Assange, who is a jackass and made some asinine comments.

  25. 25
    Omnes Omnibus says:

    @mistermix:

    If it’s being a flippant hipster to defend the rights of a free press in the face of a hysterical assault, guilty as charged.

    There was a pretty wide variety of criticism of Assange. Some was hysterical, but a lot of it was nuanced. One can criticize the choice to publish something without denying the right to do so. Your response to soonergrunt pretty much managed to get flippant down; the hipster part, I don’t know.

  26. 26
    DecidedFenceSitter says:

    @cat48: @soonergrunt:

    Julian Assange is a non US citizen, him having classified material and releasing it is completely within the law. There is no law that says you can’t release classified material, assuming you haven’t signed SF-312 NDA.

    Now if you want to talk wisdom of the action, that’s a subjective argument and one that everyone needs to judge for themselves.

  27. 27
    Belafon (formerly anonevent) says:

    If the damned media were doing their job instead of butt kissing this would be unnecessary. Instead, we have to get our information this way.

    The balance is between the government and military, who won’t release menus in case our enemies figure out when burrito night is, and those who don’t know what really should be classified. I’m more in favor of the last group being allowed to release stuff rather than the first group being able to hide stuff.

  28. 28
    Face says:

    @cleek: But you’re just a fucking flippant hipster to say this.

    When the gov’t (CIA? NSA? Pentagon?) willingly and aggressively destroyed interrogation tapes, a lot of people like myself began to suspect that a lot of “classified” material was classified such purely for CYA reasons. And god knows there’s likely a lot of CYA needed in the Iraq theater. Hence much of the distrust for the “top secret-ness” of such docs.

  29. 29
    mistermix says:

    @homerhk: If Wikileaks got hold of our nuclear codes, I would hope they’d warn and then publish, giving us time to change those codes.

    And, assuming he warned first, I hope to hell that he would publish them. If Assange got his hands on the nuclear codes, the issue isn’t Julian Fucking Assange, it’s the security of our nuclear codes, and Wikileaks’ publication of the codes as proof they were compromised would ultimately enhance our national security.

  30. 30
    soonergrunt says:

    I find it really curious that Gates and the military can’t be trusted until they say something you want to hear, mix.
    Since when is that level of non-thought actually useful for defending anything, and how is such an unprincipled position useful to defend any worthwhile principle?
    The primary difference between you and me is that I believe that principles are principles whether they are convenient or not. It is no less wrong for Bradley Manning to violate classification laws than it is for Dick Cheney to do so, and while I cannot put the Cheney in the prison where he belongs, it doesn’t change the fact that he belongs there, right next to Bradley Manning. And while I may have over reacted to the specifics of the leaked information, that does not change the fact that leaking the information was wrong and it was illegal for a reason.

  31. 31
    mistermix says:

    @Omnes Omnibus: Please detail to me how I should respond correctly to simple name-calling. I don’t have a copy of your rulebook on that.

  32. 32
    homerhk says:

    BH, first it is not the military that determines whether something is classifed – see EO 13526. It is the US government, speficially POTUS, VPOTUS and agency heads to whom classification authority has been classified. That is the civilian head of the government. The civilian government is elected by the people, hence they have the power derived from the people’s vote – they are accountable to the people by way of a small thing called elections. Assange has no such accountability.

    Second, even if certain military leaders have the power to classify, again that power is derived from the power given to them by the civilian head of the military, i.e. the President. Without denying that there have been and will undoubtedly be abuses of the system, I would much rather the decision on classification be given to a democratic government with all the accountability that that entails then a private individual with no accountability whatsoever.

  33. 33
    Corner Stone says:

    @mistermix: The issue has never been Assange, as much as some of the people here want to distract onto him.
    He is irrelevant.

  34. 34
    homerhk says:

    Mistermix,

    Respectfully that’s all completely besides the point. I was seeking to take something that should obviously be classified and still think publication is ok. It sounds to me like you wouldn’t be ok with it and I think that’s a sensible position to take.

  35. 35
    Joey Maloney says:

    @homerhk:

    classification ought to mean something

    It does mean something. It means if you work for the government and you sign an agreement not to release classified material, and you release it, you can be fired and/or prosecuted. Mr. Assange has signed no such agreement. He’s not even a US citizen. So I don’t see the problem.

  36. 36
    Violet says:

    @cat48:

    I just think Classified and Top Secret should mean something.

    But that has to work both ways. If the people who get to decide what is Top Secret and Classified can stamp that on any document they please (didn’t Cheney do that?), then they can cover up any atrocity they wish by hiding it away. There should be standards for Classified and Top Secret, but as it stands now the responsibility for deciding what does and doesn’t meet those standards lies solely with the military and government.

    The emergence of Wikileaks is an interesting check and balance on the power of those in positions to decide what is and isn’t Top Secret and Classified. If you are one of those people and you know Wikileaks is out there, would that affect your decision making at all? I don’t know, but it’s an interesting idea to contemplate.

    I’m undecided on Wikileaks, as I see both benefits and downsides to it, but it has become an interesting player in the power dynamic.

  37. 37
    mistermix says:

    @soonergrunt:

    I find it really curious that Gates and the military can’t be trusted until they say something you want to hear, mix.

    I was skeptical about Gates’ speculation about the impact of Wikileaks. I think he was wrong about the impact of the leak, as you were and are, but I think he was honestly expressing his opinion on the matter. There’s a difference between skepticism and lack of trust.

    FWIW, I have a lot of respect for Gates and the military. So I criticize him and the institution when I think they’re wrong. You don’t have to genuflect in front of an institution to respect it. I think the vast majority of enlisted men/women and officers are honorable people. That’s why we need to call out their ass-covering, lying commanders (who are a small minority) when they lie.

  38. 38
    burnspbesq says:

    @mistermix:

    If it’s being a flippant hipster to defend the rights of a free press in the face of a hysterical assault, guilty as charged.

    You need a refresher course in the First Amendment. The press can print whatever it can get its hands on. It cannot commit felonies in the process of gathering information.

  39. 39
    BTD says:

    @soonergrunt:

    Hurting your country? Come now.

    Either you believe in a free press or not.

    You can’t defend some illegal leaks and then attack others.

  40. 40
    burnspbesq says:

    @mistermix:

    So let’s lock up Bill Keller and the rest of the NYTimes staff who knew about this awful leak beforehand but conspired to keep it quiet.

    You can have Bill Keller as soon as you deliver Julian Assange into the custody of the FBI. No crimes should go unpunished.

  41. 41
    soonergrunt says:

    @DecidedFenceSitter: Did I ever say a thing about Assange being prosecuted for leaking US secrets?
    NO. Please address the arguments I have made and not the ones you seem to wish I made.
    Assange is a megalomaniacal asshole (according to those who know him, including his own son) whose primary goal is damaging the US, but he hasn’t broken any US laws of which I am aware, and is outside the jurisdiction in any event.
    The people who leaked to Assange, however, who presumably did sign SF-312, should be prosecuted to the fullest extent of the law. They can bring their motivations to trial and hope that sways somebody on the jury. That’s kind of the way the system is supposed to work.

  42. 42
    jrg says:

    @soonergrunt: I don’t think that the issue is that Gates and the military don’t ever “say something you want to hear”. I think the issue is that unpleasant news (or evidence of illegal activity) would be hidden by classifying anything that might undermine domestic support for military action.

    Lying to keep us in a war is just as bad as lying to get us into one.

  43. 43
    BTD says:

    @burnspbesq:

    True. Is Wikileaks accused of committing felonies in its gathering of the information it printed? Perhaps I missed the story, but I have not seen that.

  44. 44
    Maude says:

    @jrg:
    How many people have common sense?
    There are those that think any classification is awful, no matter what it is.
    Bush is gone.

  45. 45
    mistermix says:

    @burnspbesq: Well, since Assange is pretty hard to find, but Keller is in his office in Manhattan as we speak, perhaps it would be best for you to go and pick that low-hanging fruit with a citizens’ arrest. Take Joe Miller’s goons with you if you need some protection in your quest to defend the First Amendment.

  46. 46
    BTD says:

    @soonergrunt:

    Illegal leaks happen all the time.

    ALL the time. Why these leaks should be prosecuted as opposed to others is not clear to me.

  47. 47
    BTD says:

    @Maude:

    Being skeptical of classifications seems a reasonable position.

    The common sense position you might even say.

  48. 48
    Jack Bauer says:

    Who will guard the guards?

    RESTRICTED/CONFIDENTIAL/NOFOR/SECRET/TS

    Are labels often arbitrarily ascribed to cover up what is done in our names. This is not the Cold War, this is not a struggle for the future our societies. These wars are politically ideological aggressive occupations. Misguided doesn’t even come close to describing them…

    44 cents of every tax dollar you pay, funds what we do with our military.

  49. 49
    burnspbesq says:

    @DecidedFenceSitter:

    Julian Assange is a non US citizen, him having classified material and releasing it is completely within the law. There is no law that says you can’t release classified material, assuming you haven’t signed SF-312 NDA.

    Spectacularly wrong. There is more than probable cause to believe that Julian Assange is guilty of conspiracy, in violation of 18 USC section 371, and guilty as an accessory to multiple violations of 18 USC section 642. Any country with which the United States has an extradition treaty is obligated to arrest him and turn him over, upon request of the United States, if it finds him within its jurisdiction.

  50. 50
    Omnes Omnibus says:

    @mistermix: Respond any way you want. If, however, I think you are being flippant, I will say so. You pretty much lumped together everyone with objections to the the doc dumps as being against a free press. That was either a flippant response or, if it was serious, a remarkably stupid one.

  51. 51
    BH says:

    @homerhk:

    The points in your response are well taken, although I’m sure that the civilians in the government defer to the military 99 times out of 100. The problem is the situation that we face today with all this “look forward, not backward,” Tillman/Lynch, and states secrets nonsense. There is no truth and very, very little accountability. Thus, it must come from the outside.

  52. 52
    BTD says:

    @homerhk:

    It’s not absolute, but prior restraint was disallowed in the Pentagon Papers case.

  53. 53
    burnspbesq says:

    @BTD:

    We’ve had this conversation here before. Lot of material in the archives. For the short version, see my #49.

  54. 54
    burnspbesq says:

    @BTD:

    ALL the time. Why these leaks should be prosecuted as opposed to others is not clear to me.

    Give a shout when you get to the bottom of that slippery slope. We’ll throw you a rope.

  55. 55
    Violet says:

    @Jack Bauer:

    Who will guard the guards?

    Exactly. As we saw during the Bush administration, our government will lie about anything to get to do what it wants. If everything potentially controversial that might undermine support for the war or other issue is labeled “Top Secret” then what recourse do we, as citizens, as have to find out what is going on?

    Wikileaks isn’t perfect at all. But it’s an interesting twist in the whole concept of authority and the people’s right to know what is being done in their name.

  56. 56
    BTD says:

    @burnspbesq:

    Has Assange been charged by the United States? This is news to me.

    Beyond that, your definition of conspiracy would, as Mix points out, implicate a number of news organizations in the United States.

    Whatever the merits of your views, surely you do not argue that it is First Amendment friendly.

  57. 57
    BTD says:

    @burnspbesq:

    Take me there if you can. “Slippery slope” is the last refuge of a weak argument.

  58. 58
    homerhk says:

    BH,

    I’m not saying that the current system is perfect, far from it. I think, however, that lumping in state secrets with the issue of this leak is slightly misleading. Even the ACLU in its case against the DOJ in respect of Mr Al-Awlaki admitted that some form of state secrets doctrine existed and rightfully so. There is always a balance to be struck between protecting national security by having legitimate state secrets and/or classification and abuse of that process. I take heart that Obama has instructed the DOJ not to use state secrets in court as a way to hide illegality/embarrasment to the government (and that the EO I referred to earlier on tightened the rules on classification – making it clear that classification could not be done to hide illegality). That instruction, btw, is one of the things that GG says that Obama could do right now without 60 votes in the Senate (I would say that he didn’t know that that had already been done in late 2009 – a year ago – but I can’t believe that he didn’t already know that).

  59. 59
    Juicebaggers, ho! says:

    My country, right or wrong. When someone runs the stars and stripes up that flagpole, goddamnit, you get to your feet and salute. It’s not your job to question the government, citizen.

  60. 60
    burnspbesq says:

    @BTD:

    Your #46 can be read as saying that because less than all crimes can be detected and punished, either none should be, or the decisions as to which ones should be are left to standardless discretion of the prosecutor. Surely you don’t mean that.

  61. 61
    mistermix says:

    @Omnes Omnibus: I think that much of the response to the Wikileaks document dump was hysterical and resulted in an assault on the free press.

    Just to take this a bit further, I think we’ve generally been in the grip of hysteria over “terrorists” for the past 9 years, that our responses have generally been over-the-top, and that our enemy hopes for and specifically tries to elicit these hysterical responses.

  62. 62
    Omnes Omnibus says:

    @BTD: I have always argued that once Assange had the documents he had the right to publish them; the Times and any other media outlet also has the right to publish them. If, however, people are hurt as a result of that publication, those who decided to publish bear some moral responsibility for the results of their decision. In addition, people who leaked the documents can and should be prosecuted. Even if their consciences told them that leaking was the right thing to do, it was illegal.

  63. 63
    BTD says:

    @burnspbesq:

    I surely do not.

    I’m having trouble understanding your argument as to what constitutes a “serious crime.”

    Why are leaks published by one organization a “serious crime” when leaks by another organization are not a “serious crime.”

    Consider for a moment the argument presented by Republicans regarding the NYTimes’ publishing classified material regarding warrantless wiretapping.

    Many Republicans demanded the NYTimes be prosecuted for doing this.

    How is your position different that the ones Republicans held on the warrantless wiretapping story?

  64. 64
    stuckinred says:

    @mistermix: I can’t, for the life of me, understand what would have prompted “terrorist hysteria” nine years ago.

  65. 65
    burnspbesq says:

    @BTD:

    your definition of conspiracy would, as Mix points out, implicate a number of news organizations in the United States. Whatever the merits of your views, surely you do not argue that it is First Amendment friendly.

    Yes, it would. So be it. Criminals should be punished. If anyone thinks that criminal acts benefited the public interest in a particular case, write a letter to the probation office, for inclusion in the sentencing recommendation.

    And I disagree with your characterization of those views as “not First Amendment friendly. If the media acquires information through legal means, publish away. If the media commits crimes in the course of gathering information, it does so at its peril, and the First Amendment does nothing to protect it. Nobody gets a free pass.

  66. 66
    Svensker says:

    @homerhk:

    The point is who is Assange to judge what might or might not endanger lives?

    You know what really endangers soldiers’ lives? Going to war. And when a war is sold on absolute bullshit lies, then the liars are the ones killing the soldiers, not the people who are trying to stop the war.

    As in the Viet Nam war, the traitors are not the leakers, protesters and antiwar activists, the traitors are those who sent the country’s children to die for an absolute lie.

    And God forbid we should feel any shame, let alone horror, for the apparently countless Iraqi dead, the priceless library that was burned, the homes, businesses and culture destroyed with our bullshit war.

    So fuck that shit. Get it all out there. Expose it all. Leak away, patriotic soldiers, and publish away, Mr. Assange. And let’s get those photos outs there that Obama doesn’t want us to see. Let’s really examine what the hell we did and are doing. Let’s stare it in the face and then maybe get the hell out of there and stop killing people who have done absolutely nothing to us.

  67. 67
    BTD says:

    @Omnes Omnibus:

    Fine. I think the First Amendment covers everyone’s right to state their opinion on any number of things, including the wisdom of publishing classified material.

    I generally shy away from such judgments because, in my mind, views are prone to support leaks that undermine policies you oppose or buttress policies you support.

    To the degree the Wikleaks publishing undermined a policy I support, the Afghanistan policy, I suppose I should wish they had not been published. But I don’t make “prudence” judgments on leaks. We need an inquisitive press. We know less than we should and need to know. Not the reverse.

    Of course I supported the NYTimes’ publishing of the classified materials regarding warrantless wiretapping. I opposed that policy. But even if I didn’t, I think it was important we know about it.

  68. 68
    homerhk says:

    Svensker, I don’t know about anyone else but it is truly offensive to think that just because I think that there ought to be some meaning to the classification system that I somehow approve of the shit that happened (and is still happening) in Iraq, Afghanistan etc. The leak of classified material really has nothing to do with the bullshit reasons for the war, or the awful things that are still going on. I marched in the UK against the Iraq war in 2003 so I really don’t need to be lectured to by you in that way.

  69. 69
    mistermix says:

    @stuckinred: What happened 9 years ago was an attack calculated to inflame the population of the United States into a misguided overreaction that would drain our Treasury and ruin our reputation in the Muslim world.

    Bin Laden was counting on hysterical response, he got it, and the rest is, unfortunately, history. He succeeded in his war aims, probably beyond his wildest dreams.

    If we had fought a limited, special forces battle in Afghanistan, and increased policing in the rest of the world, we’d be a hell of a lot better off, because we wouldn’t be a trillion dollars in debt to China, and we wouldn’t be arguing about whether the editor of the NYT should be arrested and tried as a war criminal.

  70. 70
    BTD says:

    @burnspbesq:

    How precisely do you imagine a press entity acquiring classified material “through legal means.?” (I assume you are arguing that the Media should not accept materials offered by person breaking the law by leaking the material.)

    To call your view “First Amendment friendly” is naive at best, disingenuous at worst. You are calling for prosecution of a media entity for what it published. That view can be many things, what it can not be is “First Amendment friendly.”

  71. 71
    stuckinred says:

    @mistermix: If a bullfrog had wings he wouldn’t bump his ass when he hopped. Meanwhile no-fucking-body gives a shit about either one of these “wars” now do they? Oh, except concerned liberals.

  72. 72
    burnspbesq says:

    @BTD:

    How is your position different that the ones Republicans held on the warrantless wiretapping story?

    It’s not. Not even a little bit. If there is significant, reliable evidence that suggests that employees of the New York Times committed crimes in connection with those stories, then a grand jury should be empaneled.

    There is an inherent tension between 18 USC Section 642 and the First Amendment. I am totally OK with media defendants mounting a “we didn’t know the documents were stolen” defense. I’m not OK with the media conspiring or being an accessory to violations of section 642.

  73. 73
    soonergrunt says:

    @BTD: Who ever said that some intentional security breaches should be prosecuted and others shouldn’t? Not me.

  74. 74
    BTD says:

    @burnspbesq:

    Your understanding of the statute is not mine, and I daresay, not one embraced by any government of the United States in recent memory. Can you identify a prosecution that argued your view of the statute? I am unaware of such. Indeed, I am aware of a DOJ policy of longstanding to take the exact opposite view in such cases.

    Your viewt is most certainly not “First Amendment friendly.”

  75. 75
    BTD says:

    @soonergrunt:

    So you would prosecute the leakers of the warrantless wiretapping material leaked to the NYTimes?

  76. 76
    burnspbesq says:

    @BTD:

    You are calling for prosecution of a media entity for what it published.

    No, I’m not. You either misunderstand or are deliberately misstating my view.

    I am calling for prosecution if, and only if, a media entity committed a crime in acquiring the information. That is a completely separate act from publishing the information.

  77. 77
    stillnotking says:

    And by “those of you”, I assume you’re talking about the President?

  78. 78
    Jack Bauer says:

    @Svensker:

    You know what really endangers soldiers’ lives? Going to war. And when a war is sold on absolute bullshit lies, then the liars are the ones killing the soldiers, not the people who are trying to stop the war.

    Needed repeating in this thread.

  79. 79
    BTD says:

    @burnspbesq:

    I see. Well, tell me again how prosecuting the press for “acquiring” classified information is “First Amendment friendly.”

    The end result (and purposefully so) is the same.

  80. 80
    Face says:

    Are any crimes described in these leaks prosecutable, since the info themselves was illegally obtained? I would think not. It would then certainly behoove any illegal-doer to quckly stamp “classified” onto all and every document with reach of his/her stamp.

    Didn’t Cheney literally stamp everything that touched his desk “classified”, or was that an urban myth?

  81. 81
    Steeplejack says:

    Front-pager alert! Someone hyphen-bombed the previous thread. You fix.

  82. 82
    mistermix says:

    @burnspbesq: Hey, burns, since you’re an “esq” why don’t you bust out lexis or westlaw or whatever you esqs use to find us a cite or two where a real court has used the law you cited to throw a journalist into jail for publishing illegally obtained information?

  83. 83
    soonergrunt says:

    @mistermix:

    If we had fought a limited, special forces battle in Afghanistan,

    Oh, so you mean if we did in Afghanistan exactly what we had done in Afghanistan from 2001 to 2007? The fact that the strategy was dictated by availability of resources more than intent does not make it any less unsuccessful there. Too few people with too little resources is still too few people with too little resources.

  84. 84
    MBunge says:

    So, young mistermix would tell Mom that it was okay to play ball in the house BECAUSE they hadn’t broken anything yet?

    Mike

  85. 85
    Crockpot says:

    @BTD: Tell me how state secrets or anything “classified” can be ‘First Amendment Friendly’ in the first place then maybe you and Burnspbesq can have a conversation discussing that subject. Otherwise you are just talking past each other.

  86. 86
    Svensker says:

    @homerhk:

    I think that there ought to be some meaning to the classification system

    The point is, when the system has gone insane there is no way to judge any meaning. It’s like a guy who has a big old brain abscess that is severely impairing his mental faculties and you have no idea whether what he is saying is true or the product of the infection in his head. I say open up the infection site, cut and clean it out, flush with antibiotics and hope the patient recovers.

  87. 87
    Omnes Omnibus says:

    @BTD: I am not touching on the wisdom of the decisions. I fully agree that there was a right to publish. I sign on completely with the Pentagon Papers decision. Again, my comments have been addressed at the moral responsibility of those involved. If they have made a utilitarian calculation that they are risking 10 lives to save 10,000, for example, fine. If they have not thought that out or if they have dismissed the possibility, then they have failed morally. With respect to leakers, if they think that it is their moral duty to leak the information, they should do so and accept the legal consequences of violating the law. To be clear, the Times, Wikileaks, and Julian Assange are not the leakers, and they are in the clear legally.

  88. 88
    soonergrunt says:

    @BTD: Was what they did illegal?
    Principles are principles whether they feel good or not. If NYTimes can protect their identities, then great, but is it, as a matter of law, any less unlawful than the Plame case?
    I was under the impression that motive was properly the subject for the jury.

    And for the record, while I am not entirely comfortable with a journalistic shield law, I understand the motivation behind it and I support it as a concept. But the existence of such a law would do nothing to protect somebody who potentially leaks classified information from prosecution. It would only close one avenue of investigation into the leak.

  89. 89
    BTD says:

    @Crockpot:

    There are state secrets doctrine (and a need for a classified information regime.) But the states secrets doctrine is a court made rule regarding the ability to whether to allow the introduction of evidence deemed a state secret ( a designation that is, at least in theory, subject to judicial review in the context of a lawsuit) or to allow a case to proceed.

    The discussion I am having with Burns is about whether the government should prosecute media entities for acquiring and publishing classified material.

    They are related subjects but not the same. One can support one policy and oppose another.

  90. 90
    El Tiburon says:

    Yeah, whatever, but Greenwald TALKS too much. And he is SOOOOOO condescending. His incessant updates are torture.

    He is also friends with Hamsher who lunches with Grover so Greenwald is Lee Atwater or something.

    Also, he never admits when he is wrong.

  91. 91
    soonergrunt says:

    @El Tiburon: I can’t tell if this post is snark or not.
    Well played, Sir.

  92. 92
    BTD says:

    @soonergrunt:

    The Plame case related to a specific law regarding disclosing the identity of undercover intelligence agents. Assuming that you agree the media should not be prosecuted, the issue of requiring disclosure of sources seems to be your question (the Judy Miller question.)

    I oppose attempts to require reporters disclose their sources. I strongly support reporters’ privilege laws. I infamously wrote a post supporting Judy Miller’s refusal to disclose her sources at daily kos in 2005. I was excoriated for it in a 1000 comments.

  93. 93
    Omnes Omnibus says:

    @BTD: One can also support the right to publish the information once it has been leaked without supporting the right to leak it without consequences.

  94. 94
    Don says:

    If the media acquires information through legal means, publish away. If the media commits crimes in the course of gathering information, it does so at its peril, and the First Amendment does nothing to protect it. Nobody gets a free pass.

    For the most part it is legal for the press to receive materials from folks who may have gotten them in less-than-legal ways. You may be aware of this, given your mention of conspiracy as a cause to go after Assange, but the reality is that unless a reporter really egregiously and obviously solicits someone to copy information illegally it’s hard to make something stick.

  95. 95
    wilfred says:

    Let the truth be told, though the heavens fall.

    You either believe in that or you don’t. End of story.

    The rest is politics. If it’s politics, don’t bitch about somebody else’s.

  96. 96
    Omnes Omnibus says:

    @wilfred: You would classify no information?

    ETA: Editors and publishers must exercise some judgment as to what gets published. One simply cannot publish all the information that exists. The question then becomes where does one draw the line.

  97. 97
    daveNYC says:

    I can’t, for the life of me, understand what would have prompted “terrorist hysteria” nine years ago.

    Getting a little hysterical over terrorism nine years ago I can understand, the problem is that we’ve managed to maintain a good chunk of that hysteria for the entire nine years. Eternal war hysteria and a government that has its ‘top secret’ stamp in a quick draw holster… good times.

  98. 98
    DecidedFenceSitter says:

    @burnspbesq:

    18 USC section 371 doesn’t seem to apply based on DOJ reading of the case law, specifically,

    The intent required for a conspiracy to defraud the government is that the defendant possessed the intent (a) to defraud, (b) to make false statements or representations to the government or its agencies in order to obtain property of the government, or that the defendant performed acts or made statements that he/she knew to be false, fraudulent or deceitful to a government agency, which disrupted the functions of the agency or of the government. It is sufficient for the government to prove that the defendant knew the statements were false or fraudulent when made.

    Possibly under impingement of government activities, but based newspaper accounts that US reporters have maintained classified materials that the US only tried to seize after their death without charging them, makes me believe that this is not an operative law in this case.

    As regards 18 USC section 642, I assume you are referring to the “authorized by law to be printed, stamped, sealed, prepared, issued, uttered, or put in circulation on behalf of the United States” clause.

    Unfortunately, I cannot find any case law on this being applied outside of actual counterfeiting operations. Do you have some citations for the case law in this?

  99. 99
    burnspbesq says:

    @mistermix:

    You can access LEXIS and pay for it with a credit card. Knock yourself out.

  100. 100
    soonergrunt says:

    @BTD: I don’t believe that news outlets should be compelled to expose their sources. Having said that, I also think that, with respect to those sources, if they can be identified through other means, the state is well within its rights and responsibilities to prosecute the leakers and punish them should they be convicted. The leakers are, or should be, as in any criminal case, allowed to defend themselves at the bar as they see fit.

    @Omnes Omnibus: a more concise and less windy version of what I said. Nice.

  101. 101
    soonergrunt says:

    @Don:

    but the reality is that unless a reporter really egregiously and obviously solicits someone to copy information illegally it’s hard to make something stick.

    As it should be. Unless the media outlet is involved directly in a conspiracy to commit a crime, then there shouldn’t be any criminal liability.
    It’s one thing for the New York Times or even for Wikileaks to receive and publish information. It’s another thing entirely for them to enable the leaker to gather the information an avoid detection, for example providing a cell phone or an encrypted USB drive or some such to enable the actual violation.

  102. 102
    ThatLeftTurnInABQ says:

    @BTD:
    I don’t often agree with BTD, but in this case, what he said. Leaks are both good and bad, made both for noble and ignoble purposes. Good luck with your logic chopping, trying to sort out that mess.

    Seems pretty clear to me that we are dealing with a grey area here. Publishing legitimately classified info is and more importantly should be a crime. Publishing illegitimately classified info which has been classified as an abuse of power for the sole purpose of obtaining personal or partisan benefit for those in power is a crime but shouldn’t be. And note that by “publishing” I’m refering to the original leak by those who had legal access to the info in question (and who presumably have just as much of a basis for us to defer to their professional expertise as does SecDef Gates), not to the subsequent transmission of that leak by Wikileaks, the NYT, etc. We are focusing on the wrong moral agent in this discussion; Wikileaks is a conduit – the real decision was made by somebody or some group of people serving in uniform.

    The only way we are ever going to have a check on the incentives to abuse the classification system is if there is a risk that excessive abuse of classification will trigger an effort at pushback from within the ranks, just like in this case. Otherwise, what is to prevent everything from being classified willy nilly?

    This is the info war equivalent of a fragging. Inquiring minds might want to ask why there is enough dissension within the ranks that we have reached a point where incidents like this are happening. Discipline broke down within the ranks near the tail end of the Vietnam war, and now we have this. The parallels continue to add up.

  103. 103
    burnspbesq says:

    @BTD:

    Your understanding of the statute is not mine, and I daresay, not one embraced by any government of the United States in recent memory. Can you identify a prosecution that argued your view of the statute? I am unaware of such. Indeed, I am aware of a DOJ policy of longstanding to take the exact opposite view in such cases.

    Not the first time I’ve thought DOJ made the wrong call on a difficult policy issue. Probably not the last.

    There is ample room for reasoned disagreement on this issue. I do FOIA requests as part of my job, so I am familiar with both the technical and the policy reasons for broad public access to government information. My personal view is that national security information is qualitatively different, and should be treated differently. YMMV.

  104. 104
    burnspbesq says:

    @soonergrunt:

    It’s one thing for the New York Times or even for Wikileaks to receive and publish information. It’s another thing entirely for them to enable the leaker to gather the information an avoid detection, for example providing a cell phone or an encrypted USB drive or some such to enable the actual violation.

    And if the NYT or Wikileaks induces the theft of classified information by promising the thief that it will publish anything he can steal (or by promising him a pint of Ben & Jerry’s New York Super Fudge Chunk)? Which side of your line does that fall on?

  105. 105
    Dork says:

    I got prosecuted for leaking in college. Damn Public Urination misdemeanor on my record.

  106. 106
    burnspbesq says:

    @DecidedFenceSitter:

    I don’t think conspiracy to defraud is the right frame for this case.

    My view, based on what is publicly known and on inferences from what is publicly known that I consider reasonable, is that if all the facts were known we would find that Julian Assange induced Bradley Whatisname to steal classified documents, by promising that Wikileaks would publish anything he could steal. That’s either a conspiracy to violate Section 642, or Assange is an accessory to the violation of Section 642.

  107. 107
    burnspbesq says:

    Let me propose the following hypothetical, as a way of getting some clarity of thought on this issue.

    Suppose that tomorrow morning, Mistermix wakes up and finds his last five Federal income tax returns spread all over the front page of Firedoglake, accompanied by one of Marcy’s infamous timelines purporting to show evasion of a substantial amount of tax. Suppose further that Jane Hamsher induced an IRS employee to give her copies of Mistermix’s tax returns, in violation of Internal Revenue Code Section 7213 (a crime punishable by up to five years in jail), by promising to publish them and/or by offering other things of value.

    Who should go to jail? The IRS employee? Jane? Both? Neither?

    I say “both.”

  108. 108
    Omnes Omnibus says:

    @burnspbesq: IRS employee only. I understand your point, but trying to sort out who induced whom would open a can of worms. If a reporter approaches a potential source with a question, is there an implicit promise of publication? If the reporter asks for info and promises to publish, is the reporter on the hook if she sought unclassified info, but was given classified? No, to me the responsibility for a leak is with the leaker. Now, if the report breaks into an office or steals a disk, that is another story.

  109. 109
    soonergrunt says:

    @burnspbesq: Is it lawful to induce a person to commit a murder or rape?
    Now we start to get into an area that I don’t feel entirely comfortable in. I’m not a lawyer. But while I am excruciatingly uncomfortable with the concept that inducing a person to commit a crime should not be criminal itself, I realize that such position could conceivably lead to the Wikileaks organization, or something similar but less ethically compromised itself being illegal–the very point of such organization being to publish leaked information.

  110. 110
    Juicebaggers, ho! says:

    Ohhhh, Burnsey deciding who to prosecute based on evidence in his head. Top-notch lawyering there.

    Now watch this drive.

  111. 111
    Aries Moon says:

    Those of you who treated this leak like the biggest security breach since the Rosenbergs can now rise from your fainting couches, unclutch your pearls, and put away the smelling salts.

    This time.

  112. 112
    burnspbesq says:

    @Juicebaggers, ho!:

    Still waiting for you to make your first meaningful contribution to a comment thread here. What’s your fucking problem. It was Obama who promised you a pony, not me.

  113. 113
    Nikki says:

    classification ought to mean something

    Couldn’t agree with this more. However, when administrations use the classification system to hide information from the public, we have a problem.

  114. 114
    soonergrunt says:

    @BTD: I didn’t address this earlier because I was out, but in reviewing, I just saw this.

    Hurting your country? Come now.
    Either you believe in a free press or not.
    You can’t defend some illegal leaks and then attack others.

    I think it’s pretty obvious that Assange’s primary goal is to damage the US, more than it is his goal to put information from secured sources out into the open. That’s also the opinions of a number of people who work with or used to work with Assange, as they expressed to Newsweek and the New York Times, as they have watched leaks from other sources sit unpublished, and they have seen Assange short-circuit the very policies he promised to them to enforce. And while I believe in a free press, I believe that the products they have the right to produce have to be properly viewed in the context of the motivations of the press themselves. The same distrust I have for Fox news I have for Wikileaks, when I see their behaviors to be similarly guided by political beliefs.
    And as I said earlier, I don’t defend some illegal leaks and prosecute others. Illegal leaks are illegal leaks.

  115. 115
    2th&nayle says:

    @mistermix:

    What happened 9 years ago was an attack calculated to inflame the population of the United States into a misguided overreaction that would drain our Treasury and ruin our reputation in the Muslim world. Bin Laden was counting on hysterical response, he got it, and the rest is, unfortunately, history. He succeeded in his war aims, probably beyond his wildest dreams.

    While I agree with your first comment, I think there is ample evidence to question whether any of what happened 9 years ago can be laid at Bin Laden’s feet. Don’t believe me? Just ask the FBI.

  116. 116
    Corner Stone says:

    @soonergrunt:

    I think it’s pretty obvious that Assange’s primary goal is to damage the US, more than it is his goal to put information from secured sources out into the open. That’s also the opinions of a number of people who work with or used to work with Assange, as they expressed to Newsweek and the New York Times, as they have watched leaks from other sources sit unpublished, and they have seen Assange short-circuit the very policies he promised to them to enforce.

    And?
    Is this relevant in any way?

  117. 117
    soonergrunt says:

    @Corner Stone: It’s about as relevant as Fox News’ daily choices of programming. Some of what they show (hell, even most) may be factually true on some level, but their goal, and hence their editorial bent pushes and supports a viewpoint that is less than 100% truthful about the world, and they do so for their own reasons. The result when this is done, no matter the fora, is invariably less than optimal for society. Wikipedia is not demonstrably different.

  118. 118
    Juicebaggers, ho! says:

    More top-notch lawyering from Burnsey. WTF have I said about my President that upsets you so? Maybe it’s just that free advice from a lawyer is worth what you pay for it.

    I guess by that measure I am still waiting for your first meaningful contribution, too.

  119. 119

    Except I’m not sure that what is being said here is totally true. It certainly does not stack up with what the Afghans themselves have been saying for months –

    http://www.theaustralian.com.a.....5898206990

    Noitce the phrasing in the NATO quote particularly

    “But a senior NATO official in Kabul told CNN that there has not been a single case of Afghans needing protection or to be moved because of the leak.”

    Not only is it anonymous, it could very well be that no-one ‘needed’ protection or relocation due to already being dead. Or for some other reason, maybe the Taliban were worried about bad publicity or decided it wasn’t worth it now that they’re winning the war – I don’t know. But the names and locations of informants WERE put into the public domain, which is a big boo-boo in my books.

  120. 120
    Juicebaggers, ho! says:

    C’mon, you pussies, does Obama actually need to say “will no one rid me of this troublesome Australian?” All you patrotic Americans should really step it up and do what is obviously necessary.

  121. 121
    Corner Stone says:

    @soonergrunt:

    Wikipedia is not demonstrably different.

    What editorial bent? Does the material exist or does it not?
    Yours and others’ fascination with the flippant hipster Assange is beyond being relevant. His motives and desired outcomes are irrelevant against the release of the actual info itself, with no contextual or editorial assistance needed.
    Punto.

    ETA – If Fidel himself had released these docs, and the Pentagon confirmed their authenticity, would it matter any more or any less?

  122. 122
    joe from Lowell says:

    @burnspbesq:

    The principle remains: people who conspire to steal classified materials should go to jail for a very long time.

    I don’t agree with that principle. Certainly, there should be professional and legal consequences for people who took security oaths and broke them, but the punishment should fit the crime.

    This isn’t John Walker or Aldrich Ames.

  123. 123
    joe from Lowell says:

    @DecidedFenceSitter:

    There is no law that says you can’t release classified material, assuming you haven’t signed SF-312 NDA.

    This.

    It is the government’s duty to keep its secrets secret. That certainly means they can punish civil and military officials who violate secrecy rules, but not members of the general public.

  124. 124
    burnspbesq says:

    @joe from Lowell:

    Not that. You’re exactly right that the punishment should fit the crime. You’re a little off on the process. Arguments about lack of harm, public interest, etc. are highly relevant at sentencing. If all of the elements of the offense are proven beyond a reasonable doubt, the defendant goes down. How long he/she goes down for is an open question.

  125. 125
    crack says:

    @Omnes Omnibus:
    No you can’t. mistermix said so! Jeesh, drama queen.

  126. 126
    changa says:

    @soonergrunt “…Assange’s motivations are more about hurting my country…”

    Yeah? but “your country” is filled with lying murderous bastard who want to enslave everyone in the name of freedom, so fuck your country. Just because we’re Americans doesn’t mean we have like the fact that murder isn’t a crime when it can be classified a state secret.

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