Why Novak Enjoys Legal Protections for his stupidity

[Stupdworld]

ok im new to the DU forums, and not a gret HTML tagger, so i hope this works:

click on the link below to read why the 1st amendment protects Bob Novak even though he really should have known better than to knowingly put someone's life in danger on behalf of some vengeance minded fool.

New York Times Co. v. United States 403 U.S. 713 (1971)

[madmax]

1. I don't think he's stupid.

And I don't think he cares one twit about ruining someone's career or endangering their lives. He's a cold hearted capitalist with no moral compass.

btw, Welcome to DU :hi:

[roguevalley]

2. he can be subpeoned for his knowledge and if he defies, go to jail

plenty of REAL journalists have.

[AP]

6. That's the issue here. If he's a witness and he refuses to testify and the

DoJ choses to, he could be held in contempt of court.

[roguevalley]

3. by the way, welcome. :)

*

[Nevernose]

4. I'm no lawyer

But I'm not certain this case applies, or at the least will be persuasive to a judge.

The subject material is different. "The Pentagon papers" were embarrassing, so the gov't didn't have a good reason to prevent their publication. But the 1982 law prohibits revealing the names of CIA agents, a clear case of protecting people's lives as well as national security.

The Supreme Court here was relying on the precedent imposed by Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). I admittedlty haven't looked this case up (yet), but the test from it is apparently "The Government 'thus carries a heavy burden of showing justification for the imposition of such a restraint.' "

I think that in the current Wilson case, that heavy burden is met.

Note that neither my post nor the original post addresses the issue of journalists revealing their sources. It is my understanding that that is a very murky area indeed, and where the real battleground will be.

And welcome to DU!

[markses]

9. I don't think it applies either

That case is about government stopping a publication, and has little bearing on whether publication would open up the journalist to criminal prosecution, except these words by Justice White:

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 5 makes it a crime to publish certain photographs or drawings of military installations. Section 798, 6 also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems <403 U.S. 713, 736> or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. 7 If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they <403 U.S. 713, 737> publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

The same would be true under those sections of the Criminal Code casting a wider net to protect the national defense. Section 793 (e) 8 makes it a criminal act for any unauthorized possessor of a document "relating to the national defense" either (1) willfully to communicate or cause to be communicated that document to any person not entitled to receive it or (2) willfully to retain the document and fail to deliver it to an officer of the United States entitled to receive it. The subsection was added in 1950 because pre-existing law provided no <403 U.S. 713, 738> penalty for the unauthorized possessor unless demand for the documents was made. 9 "The dangers surrounding the unauthorized possession of such items are self-evident, <403 U.S. 713, 739> and it is deemed advisable to require their surrender in such a case, regardless of demand, especially since their unauthorized possession may be unknown to the authorities who would otherwise make the demand." S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950). Of course, in the cases before us, the unpublished documents have been demanded by the United States and their import has been made known at least to counsel for the newspapers involved. In Gorin v. United States, 312 U.S. 19, 28 (1941), the words "national defense" as used in a predecessor of 793 were held by a unanimous Court to have "a well understood connotation" - a "generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness" - and to be "sufficiently definite to apprise the public of prohibited activities" <403 U.S. 713, 740> and to be consonant with due process. 312 U.S., at 28 . Also, as construed by the Court in Gorin, information "connected with the national defense" is obviously not limited to that threatening "grave and irreparable" injury to the United States. 10

It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 -586 (1952); see also id., at 593-628 (Frankfurter, J., concurring). It has not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings.

------snip-----

The problem is that Congress had refused to provide guidance on the question of injunction. To the extent that Congress has subsequently provided guidance on the question of divulging the identities of covert operatives (in the form of the two laws passed in the wake of the Agee revelations), the case actually works AGAINST Novak, not for him.

[AP]

5. Novak doesn't need legal protection...or at least not that kind.

Firstly, he's doesn't fall within the statute which is at issue here (50 USC 421, right?). That statue applies to people who had first-hand access to classified information, or, if you didn't have first-hand access, you're engaged in a pattern of outing covert agents, like it's your job.

Secondly, that case is about getting an injunction to prevent the publication of something not yet public, which the papers lawfully acquired. 50 USC 421 is a prohibtion against diclosing a very specific type of information. It doesn't make it a crime for a reporter to report it once the US has disclosed the information.

[Nevernose]

8. What about the leaker?

Is giving the same information to six different reporters a pattern? Is that the same as leaking six different agent's identities to one reporter?

Also, you wrote:
Secondly, that case is about getting an injunction to prevent the publication of something not yet public, which the papers lawfully acquired. 50 USC 421 is a prohibtion against diclosing a very specific type of information. It doesn't make it a crime for a reporter to report it once the US has disclosed the information.

I think a case could be made here that the '82 law (did you quote it as 50 USC 421 ?) is unconstitutional based on the court's ruling in the Pentagon Papers case (not a very strong case, but I guarantee we'll all be getting a primer on it if they ever bring anyone to justice).

[AP]

10. The statute isn't clear, but I think the "pattern" provision is meant

to get people who are professional spy outers (eg, agetns from other governments, or people who, for whatever (political?) reasons are trying to interupt intelligence gathering by the US. I'm no expert on this law, but I suspect that there's no real case law on it, so nobody's sure how it would be applied.

Telling 6 reporters the same piece of information certainly indicates a persistence (which might trigger that provision), or the defendant might say that, since it was a repetition of the same piece of info 6 times it wasn't a pattern of outing spies (plural).

The Pentagon Papers case was a prior restraint case. It was about stopping speach before it was published based on speculations about national security. I'm not sure, but I think the national security claims were speculative, and the court decided they were trumped by the First Amendment. Of course, after the article was published, you could sue people up and down for whatever the article actually did. After the NYTimes published their stories, they didn't get sued because there wasn't any national security risk.

In this case, there's no prior restraint issue. 50 USC 421 doesn't forbid reporting. It forbids divulging information if you're the person with first hand classified information, which most reporters don't have. Reporters get information from people with first hand information. The statute actually goes out of its way to make it as unlikely as possible (if not totally impossible) that a reporter could be sued.

[DulceDecorum]

7. Then what use is the Patriot Act?

Why give him a petard if he is not to be hoist upon it?

Remember our great and wise leader has said, "there ought to be limits to freedom."
http://www.rtmark.com/more/articles/bushdallas0522bush1bushsite.htm

We must obey him.

LIMIT NOVAK'S FREEDOM NOW.

[w4rma]

11. Wilson … said … would be a violation … by the officials, not the columnist

CIA seeks probe of White House

WASHINGTON, Sept. 26 — The CIA has asked the Justice Department to investigate allegations that the White House broke federal laws by revealing the identity of one of its undercover employees in retaliation against the woman’s husband, a former ambassador who publicly criticized President Bush’s since-discredited claim that Iraq had sought weapons-grade uranium from Africa, NBC News has learned.
…
http://www.msnbc.com/news/937524.asp?0cv=CB10
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=102&topic_id=135657

Rice 'Knew Nothing' About CIA Agent Leak

WASHINGTON (Reuters) - U.S. national security adviser Condoleezza Rice said on Sunday she knew "nothing of any" White House effort to leak the identity of an undercover CIA officer in July, a charge now under review at the Justice Department.

On the "Fox News Sunday" program, the top aide to President Bush said, "This has been referred to the Justice Department. I think that is the appropriate place for it."

Rice said the White House would cooperate should the Justice Department, headed by Attorney General John Ashcroft, decide to proceed with a criminal investigation of the matter, which centers on the alleged public disclosure of the wife of former U.S. Ambassador Joseph Wilson.

Wilson was sent by the CIA to Niger in 2002 to investigate a report that Iraq was trying to obtain uranium from Niger, but returned to say it was highly doubtful.
…
http://story.news.yahoo.com/news?tmpl=story&u=/nm/20030928/ts_nm/iraq_intelligence_probe_dc&cid=564&ncid=1480
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=102&topic_id=136932

A White House smear

Did senior Bush officials blow the cover of a US intelligence officer working covertly in a field of vital importance to national security—and break the law—in order to strike at a Bush administration critic and intimidate others?

It sure looks that way, if conservative journalist Bob Novak can be trusted.
…
The sources for Novak’s assertion about Wilson’s wife appear to be “two senior administration officials.” If so, a pair of top Bush officials told a reporter the name of a CIA operative who apparently has worked under what’s known as “nonofficial cover” and who has had the dicey and difficult mission of tracking parties trying to buy or sell weapons of mass destruction or WMD material. If Wilson’s wife is such a person—and the CIA is unlikely to have many employees like her—her career has been destroyed by the Bush administration. (Assuming she did not tell friends and family about her real job, these Bush officials have also damaged her personal life.) Without acknowledging whether she is a deep-cover CIA employee, Wilson says, “Naming her this way would have compromised every operation, every relationship, every network with which she had been associated in her entire career. This is the stuff of Kim Philby and Aldrich Ames.” If she is not a CIA employee and Novak is reporting accurately, then the White House has wrongly branded a woman known to friends as an energy analyst for a private firm as a CIA officer. That would not likely do her much good.

This is not only a possible breach of national security; it is a potential violation of law. Under the Intelligence Identities Protection Act of 1982, it is a crime for anyone who has access to classified information to disclose intentionally information identifying a covert agent. The punishment for such an offense is a fine of up to $50,000 and/or up to ten years in prison. Journalists are protected from prosecution, unless they engage in a “pattern of activities” to name agents in order to impair US intelligence activities. So Novak need not worry.

Novak tells me that he was indeed tipped off by government officials about Wilson’s wife and had no reluctance about naming her. “I figured if they gave it to me,” he says. “They’d give it to others....I’m a reporter. Somebody gives me information and it’s accurate. I generally use it.” And Wilson says Novak told him that his sources were administration officials.
…
http://thenation.com/capitalgames/index.mhtml?bid=3&pid=823
http://www.arbiteronline.com/vnews/display.v/ART/2003/07/23/3f1f5fa79c206
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=102&topic_id=18072&mesg_id=18072&page=
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=108&topic_id=5913&mesg_id=5913&page=

…
Novak, in an interview, said his sources had come to him with the information. “I didn't dig it out, it was given to me,” he said. “They thought it was significant, they gave me the name and I used it.”

Wilson and others said such a disclosure would be a violation of the law by the officials, not the columnist.

Novak reported that his “two senior administration officials” told him that it was Plame who suggested sending her husband, Wilson, to Niger.
…
http://www.newsday.com/news/nationworld/nation/ny-uscia0722,0,2346857.story?coll=ny-top-headlines
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=103&topic_id=2326&mesg_id=2326&page=

A War on Wilson?
http://www.time.com/time/nation/article/0,8599,465270,00.html
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=102&topic_id=18113&mesg_id=18113&page=

White House striking back?
http://www.msnbc.com/news/942095.asp?0cv=CA01

Schumer Urges FBI Probe Into Iraq Leaks
http://story.news.yahoo.com/news?tmpl=story&u=/ap/20030724/ap_on_go_ot/schumer_agent_1

Probes Expected in ID of CIA Officer
http://www.newsday.com/news/nationworld/nation/ny-uscia233384176jul23,0,5461415.story?coll=ny-nationalnews-print

The Bush Administration Adopts a Worse-than-Nixonian Tactic: The Deadly Serious Crime Of Naming CIA Operatives by John W. Dean
http://writ.news.findlaw.com/dean/20030815.html