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No. of Recommendations: 6
The Justice Department is ramping up to start dragging reporters before grand juries to spill their guts about who leaked to them about the NSA wiretaps and other matters. Threatened with long jail terms, the reporters are likely to cave, and so leakers will be going to jail.

Last month and DoJ bagged their first leaker in some time, sending a fellow to Federal prison for 12 years (no parole possible). He leaked to a pro-Israeli lobby group.

And as newspapers editors bemoan the fact that this will send a chill through investigative reporters on the Whitehouse beat, let us remind ourselves where it started: The Plame leak case.

Yes, in their zeal to get Karl Rove the New York Times and Whitehouse press corps demanded a leak investigation and shot thier own feet off in the process. With the Plame case Fitzgerald demonstrated that reporters could be coerced to reveal their sources, and prosecutors everywhere took notice. There will be no stopping them now.

Reporters have no legal or moral right to advance the mainstream media's left wing agenda through the illegal solicitation and publication of classified information. In their zeal to undermine the Administration they have made themselves targets. There are few opportunities in life to enjoy such exquisite poetic justice.

http://nationaljournal.com/taylor.htm
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No. of Recommendations: 43
With the Plame case Fitzgerald demonstrated that reporters could be coerced to reveal their sources, and prosecutors everywhere took notice. There will be no stopping them now.

The difference, of course, is that the reporters' sources of information in the NSA's warrantless wiretapping program -- the "leaks" -- were in the classic whistleblower's position of revealing the Bush Administration's illegal acts, and the Plame leak was itself an illegal act of the Bush Administration.

Unfortunately for the NSA whistleblowers, the Bush Administration believes it is the law, and they've succeeded in packing the court with party hacks to back it up.

It's also unlikely that the NSA whistleblowers will receive the get-out-of-jail-free card Karl and Scooter drew when the Vice President remembered that he had unilaterally declassified the Plame information based on an executive order from his sock puppet.

Simbob
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No. of Recommendations: 2
The difference, of course, is that the reporters' sources of information in the NSA's warrantless wiretapping program -- the "leaks" -- were in the classic whistleblower's position of revealing the Bush Administration's illegal acts, and the Plame leak was itself an illegal act of the Bush Administration.

Sorry, but it has yet to be proven whether or not the Bush administration has violated the law. The government can in fact listen in on calls that originate from overseas that land here. You'll also need to get the data mining/wiretapping differences codified and brought under the same statute.

Until these things happen, the NSA info was classifed Top Secret and was leaked illegally to the press. Somebody just bought themselves a jail term or 3.
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No. of Recommendations: 0
The difference, of course, is that the reporters' sources of information in the NSA's warrantless wiretapping program -- the "leaks" -- were in the classic whistleblower's position of revealing the Bush Administration's illegal acts, and the Plame leak was itself an illegal act of the Bush Administration.


I am not sure, but I don't think even Fitz could figure out if Plame was an "Agent" in the active sense.

But the NSA info .....

That was Top Secret National Security Info as in ..... "they use to hang you for it" sense.

Far from a matter that should be looked upon lightly.

Bears
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No. of Recommendations: 10
the NSA info was classifed Top Secret and was leaked illegally to the press. Somebody just bought themselves a jail term or 3.

I'm willing to bet that if the leaker is found, that the defense raised will be that the gov't conduct was illegal and unconstitutional, and that it therefore cannot be protected.

The parallel to this is the prosecution of John Peter Zenger for seditious libel in pre-revolution days. The jury refused to convict because, although it was undisputed that publication had taken place, the matters published were true. Thus was born the concept of truth being an absolute defense to a charge of defamation.

And I think that is what we will see here if a leaker is caught, a claim that the gov't cannot make it criminal to expose its own legal or unconstitutional conduct.

--ET
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No. of Recommendations: 0
Yes, in their zeal to get Karl Rove the New York Times and Whitehouse press corps demanded a leak investigation and shot thier own feet off in the process. With the Plame case Fitzgerald demonstrated that reporters could be coerced to reveal their sources, and prosecutors everywhere took notice. There will be no stopping them now.
=============================================

Yes, let's all remember where it all started: With Karl Rove - Cheney - Libby leaking of a covert CIA Agent to the PRESS (for political reasons).
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No. of Recommendations: 0
And I think that is what we will see here if a leaker is caught, a claim that the gov't cannot make it criminal to expose its own legal or unconstitutional conduct.

Let's try that again...

And I think that is what we will see here if a leaker is caught, a claim that the gov't cannot make it criminal to expose its own illegal or unconstitutional conduct.

And I also make the presumption that the leaker knows far more about the gov't conduct than has yet been revealed, and believed with a great deal of certainty that it is, in fact, illegal and/or unconstitutional.


--ET
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No. of Recommendations: 2
And I think that is what we will see here if a leaker is caught, a claim that the gov't cannot make it criminal to expose its own illegal or unconstitutional conduct.

I doubt that would ever be a successful defense.

The government can certainly criminalize the disclosure of classified information, even when that information is evidence of Executive wrongdoing. The remedy available to a "whistleblower" would be to submit that evidence of wrongdoing to those other branches of government that may legally receive classified information - members of the House, members of the Senate, or going to the judiciary.

An individual doesn't just get to decide on his own a complicated issue of statutory and constitutional law, and therefore release classified information to the press. Criminalization of that kind of disclosure is perfectly legitimate.

Albaby
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No. of Recommendations: 0
The government can certainly criminalize the disclosure of classified information, even when that information is evidence of Executive wrongdoing.

Criminalize the exposure of unconstitutional conduct? Got a case on point?

An individual doesn't just get to decide on his own a complicated issue of statutory and constitutional law, and therefore release classified information to the press.

Well, certainly, if the whistleblower guesses wrong and the conduct was legal, he is screwed. But the question is, what if he is right?

--ET

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No. of Recommendations: 1
Criminalize the exposure of unconstitutional conduct? Got a case on point?

No, I'm afraid I have no specific precedent. But I think the case is a little clearer if you look at what Congress has actually done. They haven't criminalized "exposure of unconstitutional conduct" - they've criminalized disclosure of all classified information (generally speaking), of which some might pertain to conduct which is arguably unconstitutional.

Congress could certainly choose to write into that prohibition an exception for "unconstitutional conduct" - but they have not done so (as far as I'm aware). Which means that for a court to basically invalidate the laws criminalizing disclosure of classified information, they would have to find some organic protection in the Constitution for this type of behavior.

I doubt they would do that. They might be willing to find some Constitutional right to go to a court to claim that the government is violating the Constitution - but not a Constitutional right to go to the press (or the public at large). Congress will be presumed to have balanced the need for secrecy with the need for institutional checks on potential Executive violations of the Constitution, and come down in favor of secrecy. I doubt a court would disturb that.

Albaby
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No. of Recommendations: 0
And I think that is what we will see here if a leaker is caught, a claim that the gov't cannot make it criminal to expose its own illegal or unconstitutional conduct.

And I also make the presumption that the leaker knows far more about the gov't conduct than has yet been revealed, and believed with a great deal of certainty that it is, in fact, illegal and/or unconstitutional.


Honest question here: For argument's sake, suppose the data mining is ruled legal. Can you still prosecute a leaker for revealing in good faith what he/she thought was illegal activity?
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No. of Recommendations: 0
[Congress] haven't criminalized "exposure of unconstitutional conduct" - they've criminalized disclosure of all classified information (generally speaking), of which some might pertain to conduct which is arguably unconstitutional.

And I think that Congress wouldn't have the authority to do that -- to criminalize the exposure of unconstitutional conduct.

By the way, I don't have a case to cite either on whether such a defense would have merit on a motion to dismiss (or, alternatively, in an effort to use the concpet of jury nullification). This could be new ground.

Which is why I brought up the John Peter Zenger analogy.

--ET
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No. of Recommendations: 0
Honest question here: For argument's sake, suppose the data mining is ruled legal. Can you still prosecute a leaker for revealing in good faith what he/she thought was illegal activity?

I think if the info was legal, the leaker is screwed. S/he could take a shot at the concept of "jury nullification" if a judge lets him/her get away with it, but if the conduct was legal, this person has a problem.

Here is an article on the concept (there are many available if you Google the term)...

Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate that are charged with deciding.

http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html

--ET
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No. of Recommendations: 0
And I think that Congress wouldn't have the authority to do that -- to criminalize the exposure of unconstitutional conduct.

I imagine that the Court would construe the laws so as to not criminalize the "exposure" of unconstitutional conduct, simply by reading into them an exception that would allow someone to disclose that information to the Courts. Alternatively, they would view the fact that there are numerous individuals outside of the Executive who are authorized to receive classified information to whom such constitutional violations could be "exposed."

In other words, the leaker had options other than going to the press, and therefore has no shield against criminal prosecution.

The Zenger case is an interesting one, but it's more an instance of jury nullification. That might happen in the case of a leak prosecution as well, BTW - the jury might refuse to convict if they genuinely thought the leaker's motives were pure - but that's a different legal principle.

Albaby
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No. of Recommendations: 0
"In other words, the leaker had options other than going to the press, and therefore has no shield against criminal prosecution."

Such as?

Ken
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No. of Recommendations: 1
"In other words, the leaker had options other than going to the press, and therefore has no shield against criminal prosecution."

Such as?


Going to the various Congresscritters that have security clearance to receive that classified information.

Going to court to seek a judicial determination that the program did, in fact, violate the Constitution.

It should be pointed out that one of the reasons for having different branches of government is to provide "checks and balances." This concept of "checks and balances" exists because the other two branches do, in fact, have the power to check the excesses of the other.

Albaby
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No. of Recommendations: 0
"With the Plame case Fitzgerald demonstrated that reporters could be coerced to reveal their sources, and prosecutors everywhere took notice. There will be no stopping them now."

---------------------------------------------------------------


"The difference, of course, is that the reporters' sources of information in the NSA's warrantless wiretapping program -- the "leaks" -- were in the classic whistleblower's position of revealing the Bush Administration's illegal acts, and the Plame leak was itself an illegal act of the Bush Administration...."
.................


Are you building a RICO case here Simbob?

Are you in favor of 'shaking and baking' millions of people currently employed in the administration, only the political appointees(none of the hold-overs though) or just White House staffers and elected people?

The differences in the leakers was which hated 'the Bush Administration' and which hated Plame's Husband?

I would have guessed that anyone who delivered classified information to anyone not clearly nor legally a lawful recepient of such classified was what frames these cases.

I also can hardly wait to see what existing legal avenues for redress, for notification of abuses/notice of laws violated, that these leakers used prior to committing their felonies which in each of their opinions mandated their felonious behavior to remedy.

-------------------------------------------



"...Unfortunately for the NSA whistleblowers, the Bush Administration believes it is the law, and they've succeeded in packing the court with party hacks to back it up...."
............................

Which Bush appointee is not qualified to be on the bench?


============================================================


"...It's also unlikely that the NSA whistleblowers will receive the get-out-of-jail-free card Karl and Scooter drew when the Vice President remembered that he had unilaterally declassified the Plame information based on an executive order from his sock puppet." Simbob

-------------------


What's wrong with an elected official declassifying classified products and/or materials? If leakers can do it by their own personally granted authority, why not someone elected?

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Which Bush appointee is not qualified to be on the bench?
-----

Qualifications are one thing, agenda is another.
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No. of Recommendations: 1
"...That was Top Secret National Security Info as in ..... "they use to hang you for it" sense.
Far from a matter that should be looked upon lightly." Bears

------------------

It is in the SCI code-worded realm, above normal TS, it's compartmentized intel.

And those who revealed it should in my humble and personal opinion be quickly executed.
And I don't support the death penalty. Except in these cases.


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Still wondering what whacko-liberal conspiricy theories you were talking about.
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"Honest question here: For argument's sake, suppose the data mining is ruled legal. Can you still prosecute a leaker for revealing in good faith what he/she thought was illegal activity?"
------------------

If that ever became a legally accepted 'defense', kiss all classified goodbye.

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No. of Recommendations: 1
And I think that is what we will see here if a leaker is caught, a claim that the gov't cannot make it criminal to expose its own illegal or unconstitutional conduct.

And I also make the presumption that the leaker knows far more about the gov't conduct than has yet been revealed, and believed with a great deal of certainty that it is, in fact, illegal and/or unconstitutional.


I don't think so. The need for the government to keep certain things secret trumps even the right of individuals to a trial. It will certainly trump the need to expose illegality in government especially since there were proper channels through which complaints about illegality could be sent without endangering national security. Otherwise, any disaffected government employee could seriously damage national security and put American lives at risk on the basis of his opinion of the legality of a program. Even the most daft judge would not buy into that. The Constitution is not a suicide pact.

In the case of the NSA wiretaps, however, the idea that illegal activity was being exposed won't wash because reasonable people know it was not illegal. In any case, this sort of difference of opinion in interpretation of the law does not rise to a level that would justify leaking classified information.

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No. of Recommendations: 1
The need for the government to keep certain things secret trumps even the right of individuals to a trial.

Umm, I'll be as gentle as I can about this: You are wrong. Period. I refer you to the Bill of Rights, Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

--ET



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No. of Recommendations: 2
Umm, I'll be as gentle as I can about this: You are wrong. Period. I refer you to the Bill of Rights, Amendment VI:

Actually, I was thinking of civil cases, as elaborated in the SCOTUS decision on Tenet v Doe & Doe (2004):

Although this Court's decision in Reynolds remains
important to the government and effectively serves its
interests in the cases where a cause of action may proceed,
Totten remains vitally important to the United
States in the class of cases where recovery depends on
a secret contract to provide espionage services. That
type of contract necessarily forecloses the ability of an
alleged spy to sue in court to enforce the contract, because
it is an inherent aspect of the secret relationship
that the contracting government can deny the relationship
and has the sole discretion to determine whether
and what type of redress is appropriate. The CIA thus
has always conducted its espionage operations on the
understanding that agreements for espionage services
are inherently secret, and are not justiciable.


http://www.usdoj.gov/osg/briefs/2003/2pet/7pet/2003-1395.pet.rep.pdf
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No. of Recommendations: 0
Bin Cynic says

The need for the government to keep certain things secret trumps even the right of individuals to a trial.

Amazing. What law book did you get this bit of naked totalitarianism out of?

crassfool
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Bin Cynic says

The need for the government to keep certain things secret trumps even the right of individuals to a trial.

Amazing. What law book did you get this bit of naked totalitarianism out of?


Damn

I missed that. Seems the Cynic has just scratched out the 6th amendment I mean I know there is some dispute over the president's powers in this wiretap thing but the right to trial is set down in black and white yet he believes the government can overrule it. I guess he's been watching Pirates of the Caribbean these days and applying the attitude to the Bill of Rights. You know, they ain't exactly rules, more like guidelines.

herb
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No. of Recommendations: 0
Herb says

Damn

I missed that. Seems the Cynic has just scratched out the 6th amendment I mean I know there is some dispute over the president's powers in this wiretap thing but the right to trial is set down in black and white yet he believes the government can overrule it. I guess he's been watching Pirates of the Caribbean these days and applying the attitude to the Bill of Rights. You know, they ain't exactly rules, more like guidelines.

Well, it turns out he was only thinking about civil trials. I doubt that he gives much of a rusty rat's a$$ about the 6th, or any of the Bill of Rights except maybe the right to own howitzers and RPG's.

crassfool
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