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Replies to Hiawatha Bray's response, and whether the law is really the law after all

Replies to Hiawatha Bray's response, and whether the law is really the law after all
Replies to Hiawatha Bray's response, and whether the law is really the law after all



Previous Politech messages:
http://www.politechbot.com/2006/05/22/hiawatha-brays-response/ 
http://www.politechbot.com/2006/05/22/perry-metzgers-call/ 


-------- Original Message --------
Subject: Re: [Politech] Hiawatha Bray's response on wiretapping of 
journalists: the law's the law [fs]
Date: Mon, 22 May 2006 23:31:36 -0500
From: Andy Ringsmuth  
To: Declan McCullagh  
References: <447282E6.3060804@well.com> 

 From the original article:

It can be argued by some who do not agree with me that the reporters
in question are somehow "helping the terrorists" by revealing things
like the fact that the US Government has SigInt operations, but in
fact anyone who isn't an idiot already knows we have SigInt
operations. What the reporters have done -- heroically, I might add --
is reveal that the government has far exceeded the bounds of legality
in performing such operations, even when legal methods existed to gain
the same information.


Declan,

One thing that routinely irks me about the media today is the
increasing trend towards editorializing in the news, particularly
when what is said is false.  Perry Metzger says that "the government
has far exceeded the bounds of legality in performing such
operations" and says it as if it were fact.  I don't know if Metzger
is a journalist or not, I will admit.

In truth, however, while there are some cases pending in various
courts and maybe a Senate investigation in the works, at this
juncture any claim as to whether or not the government has broken the
law is just that - a claim, and thus not fact.  It may well be
Metzger's opinion that the government broke the law, but until that
has been proven or disproven in a court of law, it is merely an
allegation and nothing more.

I routinely see politicians and even the media referring to this
stuff in terms like "the illegal wiretapping issue" or "the illegal
NSA wiretapping," etc.  Whether or not a law has been broken is for a
COURT to decide, not a politician or a journalist.  It seems to me
that as journalists word things like they do, it is a subtle but
gross indication of their political bias, and thus a terrible
disservice as they mislead (intentional or otherwise) their readers/
viewers.  Brian Ross and Richard Esposito get it right in their blog,
as they don't state allegations as fact.

Hiawatha Bray is correct in stating that " it's illegal for
journalists to knowingly publish classified information" as that is a
statement of fact.  But if Bray were to say that "Scooter Libby
illegally leaked Valerie Plame's identity" it would be false.  An
accurate statement would be  "Scooter Libby allegedly leaked...."
There is a big difference there.  Similarly, if Metzger had said "it
is alleged that the government has far exceeded the bounds of
legality in performing such operations" or "Some say the government
has far exceeded..." that would be legit.  But to consider one's self
to be judge and jury just isn't right.



Respectfully,

-Andy Ringsmuth
andyring@inebraska.com 
(OK to display my e-mail address if this makes it to your Politech list)





-------- Original Message --------
Subject: Re: [Politech] Hiawatha Bray's response on wiretapping of 
journalists: the law's the law [fs]
Date: Mon, 22 May 2006 21:35:25 -0700 (MST)
From: terry@terrybressi.org 
To: declan@well.com 

Rubbish. Exactly what part of the First Amendment phrase, "Congress shall
make no law..." does Mr. Bray not fully grasp? While Congress may have the
legitimate authority to prohibit government employees from leaking
classified information, it most certainly doesn't have the legitimate
authority to make it a crime for the press to publish or report on
classified information.

Indeed, if Congress could pass such a law, there would be little to stop
the federal government from unconstitutionally spying on the American
people and making evidence of such an act classified in order to cover-up
the government's malfeasance.

Perhaps Mr. Bray should avail himself of a remedial class in Civics 101 so
as to better understand the checks and balances that exist within a
Constitutional Republic such as ours.

Terry Bressi






-------- Original Message --------
Subject: Hiawatha Bray's Javertism
Date: Tue, 23 May 2006 00:40:50 -0500
From: Jim Davidson  
Reply-To: davidson@net1.net 
To: Declan McCullagh  
CC: watha2020@fusemail.com 
References: <447282E6.3060804@well.com> 

Dear Declan,

It is a bit surprising to see the despicable words of
Inspector Javert from _Les Miserables_ repeated by a
reporter such as Hiawatha Bray.  "The law's the law!"

Yes, sure, and the camp guards were only doing their
jobs, the train drivers weren't told where their human
cargo was going, and nobody said what the fork lifts
were for.  After all, the nationalist socialist workers
party of Germany members were only following orders.

In fact the law, whether it is from 1917 or 1950 is a
law that Congress had no authority to pass.  The
superceding text is very clear, even to that arch-fool
Alberto:

"Congress shall make no law ... abridging the freedom of
speech, or of the press...." from the Bill of Rights,
Article One.

The Supreme Court has repeatedly ruled that any law
passed by Congress which is unconstitutional is null
on its face and void.  Therefore, there is no law
against publishing anything, including secrets of the
government, including the embarrassing fact that
White House officials have blabbed to reporters all
kinds of national secrets.

Mr. Alberto Gonzales is a traitor to the constitution
he swore an oath to defend.  He knows that no law
abridging the freedom of the press is valid, and he
ought to be ashamed of himself.  He also ought to be
impeached, convicted of treason by a court of competent
jurisdiction, and executed.  Even pretending he has
the authority to enforce a law abridging freedom of
the press makes the man a menace to American values,
an oath breaker, and, as a result of his willful oath
breaking, a traitor.  Chilling freedom of the press
by threatening to enforce an invalid and unconstitutional
law gives aid and comfort to the enemies of the United
States and the enemies of freedom.  Violating the
First Amendment is a high crime.

Treason ought not to be excused lightly.  Treason against
our fundamental values, against the tradition of a free
press which made this country possible, is so disgusting
that no lesser sentence than death could be appropriate.

Regards,

Jim



-------- Original Message --------
Subject: Re: [Politech] Hiawatha Bray's response on wiretapping of 
journalists: the law's the law [fs]
Date: Tue, 23 May 2006 00:36:38 -0400
From: Chris Beck  
Organization: None At All
To: Declan McCullagh , Hiawatha Bray 
 
References: <447282E6.3060804@well.com> 

They say Declan McCullagh, on or about 22.May.2006 23:35, whispered:

 > reporters.  Still, the law's the law, and reporters are bound to it like
 > everybody else.

Until the law is found to be unconstitutional or in conflict with 
another law.
Besides, the implication is that the tracking is being done by the NSA. 
  I would
have thought it was the FBI's responsibility to investigate criminal leaks.

My own personal feeling is that it should not be possible for criminal 
actions
to be deemed classified.

Cheers,
Chris
-- 
Chris Beck - http://pacanukeha.wordpress.com 
The sad fact is that "national security" has become the root password to
the Constitution. -- Phil Karn






-------- Original Message --------
Subject: Re: [Politech] Perry Metzger's call to action on Feds' 
lawlessness, tapping [priv]
Date: Mon, 22 May 2006 23:37:04 -0600
From: Daniel Webb  
To: Declan McCullagh  
References: <447282E6.3060804@well.com> <20060522174208.C1628@baltwash.com> 

 > Nonsense.  As a journalist, I don't much like the idea.  But anybody 
who's
 > leaking classified data to reporters is in violation of the law.  And 
it's
 > perfectly legal for the government to tap the phones of suspected
 > lawbreakers inside the intelligence community.  In addition, it's illegal
 > for journalists to knowingly publish classified information, 
according to a
 > law passed back in 1950.  I hope that provision is never enforced; I 
don't
 > think the administration wants to enforce it.  After all, they need only
 > nail the leakers and thus avoid opening a huge can of worms by arresting
 > reporters.  Still, the law's the law, and reporters are bound to it like
 > everybody else.

Two points:

1) The government should simply make a law that revealing government
lawbreaking is itself a serious crime, perhaps appending it to the treason
statute.  I am quite confident that within my lifetime this will happen.  I
assume you will not support such a law, but will you violate it?  Will you
still say "the law's the law, and everybody has to follow it?"

2) Reading his message as a whole, I think the fear being described by Mr.
Metzger is not so much legitimate phone tapping and warrants, but the
wholesale and illegal surveillance going on now.  For example, assume a
reporter can now be identified any time after the fact because the NSA is
keeping phone logs of every phone call made in the United States.  Once
identified, "legitimate" warrants can be used to gain information used 
against
them in court.  This is the fear I have: that we will create a system where
Constitutional protections still exist on paper, but are meaningless in
practice.  I believe that will be the result of the fourth amendment if the
current administration gets away with breaking the law.  Bush broke the law
and is still breaking the law.  Everyone involved with that operation should
be prosecuted, yet they are boldly defiant and calling for the heads of 
those
brave enough to out them breaking the law.  So pardon me if I don't see 
blind
devotion to the law as the highest ideal in this case, especially when 
the law
is only applied to those who criticise the government and not the government
itself.

Daniel Webb




-------- Original Message --------
Subject: Re: [Politech] Hiawatha Bray's response on wiretapping of 
journalists: the law's the law [fs]
Date: Mon, 22 May 2006 22:41:50 -0700
From: Thomas Leavitt  
Organization: Godmoma's Forge, LLC
To: Declan McCullagh  
References: <447282E6.3060804@well.com> 

Declan,

The law is owed respect exactly to the point at which it becomes immoral
and dangerous to do so - the world is full of bad and immoral laws which
deserve nothing but contempt.

A bad law is a bad law. Period. It is a hoary example, but there were
plenty of "laws" in the South that journalists (and others) were "bound"
to observe, that people knowingly and deliberately broke because they
were unjust and unwise.

There's a reason why there are laws that attempt to protect whistle
blowers, and there's a reason why, traditionally, journalists enjoy a
certain amount of immunity from revealing their sources - even the ones
who are engaged in illegal acts: the benefit to the public of having
access to the truth, in this case, of having a counter-balance to an
arrogant and over-reaching executive, exceeds the costs to the society
associated with failure to prosecute those revealing the secrets.

Really, does the idea of a government that is *successfully* able to
seal all leaks, to track down and prosecute and punish any and all
individuals who reveal information that such a government prefers to not
have revealed, does this make anyone happy? Would you feel safer in your
bed at night, if you knew the rulers of this country were pretty much
free to proceed at will with whatever plans they cared to execute?

Absolute power corrupts absolutely. A governmental administration
effectively able to act without fear of exposure by those who disagree
with policies as laid out and implemented, especially in the case of
secrecy, is inevitably going to over-reach and threaten the liberty of
the citizens it governs. It is inherent in human nature, individually,
and collectively.

We already have a huge and growing and more or less truly secret and
almost completely unaccountable government... $40 billion dollars a
year (that we know of), the entire budget of a small nation... more than
all but a few countries combined spend on national defense... don't we,
as citizens, deserve to have at least a theoretical opportunity to learn
when and if improprieties of any sort, however embarassing, and even if
potentially threatening to national security in some fashion, are being
engaged in?

Is the nation better off for having Abu Gharib exposed? One could argue
that our national security has been undermined by that event... but how
much greater the threat, if that cancer had grown on, unabated, only to
be revealed at a later point... or to infect the forces of law and order
in our own country? ... setting aside the moral stain that settles on
all of us, a citizens of a country that engages in torture.

I would argue that, in point of fact, we have a moral obligation to
conscientiously violate and disrespect and disempower immoral, unjust
and unwise laws, and to express our contempt for them and our strong
desire to see them invalidated or erased from the books. A whistle
blower passing along secret and classified information that implicates
any element of our government in immoral or illegal or just plain unwise
acts is a hero, not a criminal.

To put it in stark terms: if the CIA were to be engaged in a plot,
authorized by the President himself and senior members of Congress, to
explode a small tactical nuclear weapon in Tehran, designed to take out
a large chunk of that government's ruling powers, and a whistle blower
were to supply Seymour Hersh with all the details and they went up on
the web minutes later, and such a publication "blew" the operation and
lead to the deaths of several of the operatives and the virtual
destruction of our intelligence network in Tehran and surrounding areas,
there would be absolutely no doubt that, in a very real sense, our
national security had been severely compromised. At the same time, one
could (and I would, personally) argue that revealing this information
would be an act of public service of the highest merit and the leaker to
be a hero, and that in the long run, our national security had been
vastly enhanced, rather than degraded.

But, perhaps I'm too much of a cynic, perhaps I've been watching too
much Star Trek, find the proposition that our government could over
reach its bounds or be corrupted from within or that elements of it
could put their own interests ahead of the nations far more realistic a
proposition than is justified.

But again, I ask: if the government was able to act without the
slightest fear of "leaks", if each and every "leak" were instantly and
ruthlessly hunted down and crushed, and any publication or forwarding of
such information was suppressed and severely punished... would any of us
fell safer in our beds at night?

Regards,
Thomas Leavitt




-------- Original Message --------
Subject: Re: [Politech] Hiawatha Bray's response on wiretapping of 
journalists: the law's the law [fs]
Date: Tue, 23 May 2006 01:52:48 -0400 (EDT)
From: Dean Anderson  
To: Declan McCullagh  

On Mon, 22 May 2006, Declan McCullagh wrote:

 > Previous Politech message:
 > Nonsense.  As a journalist, I don't much like the idea.  But anybody 
who's
 > leaking classified data to reporters is in violation of the law.  And 
it's
 > perfectly legal for the government to tap the phones of suspected
 > lawbreakers inside the intelligence community.  In addition, it's illegal
 > for journalists to knowingly publish classified information, 
according to a
 > law passed back in 1950.  I hope that provision is never enforced; I 
don't
 > think the administration wants to enforce it.  After all, they need only
 > nail the leakers and thus avoid opening a huge can of worms by arresting
 > reporters.  Still, the law's the law, and reporters are bound to it like
 > everybody else.

I'm not a trained journalist. But I am a consumer of the products of 
journalism.
The public doesn't have the CIA to find out facts. But we need 
information to
make decisions.  The collective "free press" provides that information: 
Like the
CIA, they have to engage in a few "covert ops" to obtain information. As 
someone
just recently pointed out on a TV talk show (didn't get their name), nearly
everything the CIA does abroad is a violation of the host countries' laws.
Spying is illegal in nearly every country.

The public needs to know the truth, and needs to have access to facts in 
order
to make decisions that are essential to Democracy.

I agree that the law is the law. I rather identify with John Adams, who was
greatly disturbed the by the French Revolution because it seemed to be 
anarchy,
a destruction of the rule of law.  In contrast, though Adams was a
revolutionary, he was not an anarchist. I think the law in this case is 
meant to
protect against harms to national security. The rub is what is "national
security"?  I argue that making newsworthy information public does not 
harm the
national security. The publishing of the Pentagon Papers did no harm to the
national security.  Rather, this act greatly helped the national 
security.  The
exposure of Watergate brought down the President, but it did not harm the
national security. Nor did the exposure harm the Presidency. The harm 
was caused
by Nixon and his aides.  The exposure was in the interest of national 
security.

Likewise, I've seen nothing revealed so far that has been harmful to the
national security, and I read the New York Times every day, frequently 
read the
Boston Globe, and more occasionally the Wall Street Journal.

The "National Security" is not "that which makes Bush and Company look 
good".
It is that which makes the public actually secure in their liberties, and
protects Democracy, which is public control of the government.

I was greatly moved by Moussaoui's response to the families of the 
victims.
After the families testified what pain he had caused, he took the stand to
respond about the pain and death the US had caused abroad.  I've just read
"Rogue State" by William Blum.  Engaging in secret wars for the benefit 
of US
corporate profits is a terrible vulture that will come home to rest.  In 
today's
New York Times, Ted Koppel argues for (or perhaps alerts us to) the 
possibility
that Corporations should be allowed to hire their own mercenaries to 
fight their
battles and protect their foreign interests. I suspect that in fact,
Corporations already do operate mercenary armies, and have for a long 
time. Last
year, Margaret Thatcher's son was arrested in Zimbabwe for leading a 
mercenary
army to overthrow the Central African Republic. Why? Oil seems likely. 
[There
is a new oil pipeline in Chad, and there is Oil in Darfur, which also 
puts the
"genocide" in a different light. Just look at the map and follow the Oil.]

Exposing these misdeeds is in the national interest, and promotes national
security and democratic public control of government. The acts of 
reporters have
not been to sell secrets to the Chinese, or to terrorists for that 
matter. The
acts have been to make relevant facts public. Facts which are relevant 
to the
public discourse, and to the right of the public to have the information it
needs to make decisions. Anything else is not a Democracy.

The goal of national security is to preserve the Democracy, not the 
Presidency.
Or even the President.  Just as the Secret Service should take a bullet to
protect the President, the President (and everyone below him) may need 
to put
their own life and future at risk to protect the Democracy. That is what 
they
swore an oath to protect: To protect and defend the Constition, not 
their own
butts.

Any classified information that essentially puts their "butts to the fire"
probably better serves the national security by publication than by 
secrecy. I
am a strong proponent of rule by law.  But I think the lawfulness of this
publication of classified information is rather similar to the notion of
justifiable homicide, or perhaps trespass in public necessity.  In tort law
there is a defense against trespass called "Privileged Invasion of Another's
Land or Chattels as a Public Necessity".  Essentially, it means there are
circumstances when trespass is necessary to avert a disaster, or because a
highway is obstructed. Of course, the media is generally excluded in 
this, so
perhaps it isn't a good example.  But I think the lack of relevent 
information
could create a public disaster. Indeed, I think the Iraq War (and 
perhaps the
Vietnam War), was a public disaster caused by lack of public 
information.  In
Vietnam, the government repeatedly told the public that "we know things, and
we're doing the right thing". We now know what it was they knew, and 
they didn't
know anything then that would have made their decisions correct. National
security would plainly have been better served by having that 
information made
public.

Sometimes there are good and just reasons to break the law.  I 
absolutely see
that its a hard call in a gray area. A call that, correctly made, 
distinguishes
the professionals from the amateurs. But that's why we have professional
journalists, and that's why we have judges and juries, and not robots.

Freedom isn't risk free.  For anyone, journalists included.

		--Dean

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