Dangerous Prosecution (WP / editorial)

[struggle4progress]

The Bush administration wants to criminalize Washington's daily trade in secret information.
Thursday, April 20, 2006; Page A24


WHILE NO ONE is paying much attention, the Bush administration is promoting a reading of an old and largely moribund law that could radically diminish the openness of U.S. government while criminalizing huge swaths of academic debate and journalism. No one has announced it in so many words, but if the government succeeds, for the first time non-officials -- activists, congressional staffers, journalists -- would be deemed criminal for transmitting secret information or even for just receiving it ...

.. The government did not charge them under a normal spying law. Instead, it invoked a World War I-era statute that prohibits people who receive secret information from disclosing it further.

If that sounds scary, the government arguments in its favor are even scarier. For one thing, prosecutors assert in a recent brief that "there is simply no First Amendment right to disclose national defense information." Does this mean academics have no right to debate the legality of the wiretapping program of the National Security Agency, the facts of which have mostly been revealed in leaks? Does it mean that an activist who gets information from a whistle-blower has no right to disclose it to a member of Congress? According to the government, it does ...

Until now, two things have prevented this law from morphing into an American version of Britain's Official Secrets Act: discretion on the part of prosecutors and the belief that the courts would not tolerate a reading of it that ran smack into the First Amendment. Prosecutors have thrown discretion to the wind; now it's up to the courts.

http://www.washingtonpost.com/wp-dyn/content/article/2006/04/19/AR2006041902316.html

[PublicWrath]

1. Gasp.... This is going to throw such a chill into journalists that

they'll fight back, hard. The press will take 'em down. This may be the most self-defeating thing bushco could have done.

[Kagemusha]

2. I truly despise this argument.

First of all it's being used to defend these AIPAC people who absolutely do not deserve repeated defenses citing the need for freedom to receive classified information AND PASS IT ON TO A FOREIGN POWER. Hello! That's done all the time, yes, but it's generally called espionage. An abundance of it does not make it any more legal.

Second of all, to put it a bit more f'ing plainly, which is deliberately not the purpose of this editorial, the criminality for transmitting secret information is if that information is transmitted to a foreign power KNOWING that you are transmitting this information to a foreign power, rather than, let's say, printing it on the front page of your newspaper and informing the entire world. Which is, last I checked, legal. The only way this particular law could criminalize someone ONLY for receiving is if the receiving is with the express purpose of transmitting it to a foreign power, where the government manages to stop you before your scheme, provable beyond reasonable doubt, can be enacted.

And that's it.

It's not complicated. Is it?

This part about no First Amendment right to disclose national defense information should not end with a ".". There is no right to secretly disclose that information to a foreign power. I use the word "secretly" for good reason.

It is also not a First Amendment right for an actual official (as opposed to journalists) to divulge national security information to journalists. Yes, it happens all the time. If this is done for domestic political purposes, like whistleblowing, that's one thing. If it's done not for publication, but for transferral to a foreign power without the public's 'right to know' ever being fulfilled, that is one hell of a huge difference. That is the difference with what the AIPAC employees did with the cooperation of a Pentagon analyst.

And finally, put really bluntly, are we expected to believe that congressional staffers are not subject to security clearances, and they have an absolute right to transmit everything they get about congressional debates, public policy, etc, to the Russians, or the Chinese, or the French, or the Egyptians, or the Japanese, or well, Israel? Is there no expectation of trust for these people whatsoever? Why are they lumped in with activists and journalists?

I just fail to see where the Jack Andersen incident has anything to do with saving the asses of a couple of people funneling American state secrets to Israeli intelligence because they thought it would be helpful and our good, good friends the Israelis might like to know these things. It seems the right to do THAT is so sacred that it must take our good sense hostage.

[bemildred]

3. Who could forget A. Mitchell Palmer?

And the utterly corrupt Congress of Woody Wilson's administration?