Strengthening Constitutional Self-Government

No Left Turns

Prosecuting leakers

NRO’s Andrew McCarthy makes sense of the politics, both popular and judicial. His conclusion: aggressively go after the leakers, immunize the journalists, and threaten them with contempt-of-court jailtime if they don’t reveal their sources. His concluding paragraphs:

Chances are that the journalists who have exposed leaked national-security information over the past several months do not want to spend 18 months in prison. If they were put in that position, we would very likely learn who did the leaking. Those officials could then be indicted. A prosecution against government officials does not entail the same free-speech complications.


On the other hand, even if the subpoenaed reporters flouted the law by never giving up their sources — even if they took the incredibly arrogant position that their secrets take precedence over the nation’s secrets — 18 months’ imprisonment is a powerful disincentive. Fewer reporters would run the risk. Fewer would-be government leakers would bank on a reporter’s perseverance. The leaks would dry up in a hurry.


That ought to be the goal here.

Read the whole thing.

Discussions - 10 Comments

I’m uncomfortable with the idea of a government unchecked by the press - as you well know, Clinton would have had complete free reign without leakers. And the national security issues we’re so angry about here; it seems unlikely that any but the most clueless and ineffectual terrorists would be helped by revelations that we monitor the banking system for signs of terrorist activitiy, or that we torture them. Implying those things has been a strategy in the war on terror.
Forgive me for mangling the quote, but "those who would forsake liberty for security derserve neither."

They that can give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. Benjamin Franklin

Clinton would have had complete free reign without leakers. He had complete free reign even with leakers and if the press had done its job in 1992, he’d never have been elected president. Information about his corruption as governor of Arkansas was out there but went unreported. That failure to report was my reason for cancellation of my subscription of the LA Times, that year. I have never looked at the rag since, but I have very much enjoyed giving telephone subscription solicitors an earful when they call.

...it seems unlikely that any but the most clueless and ineffectual terrorists would be helped by revelations that we monitor the banking system for signs of terrorist activitiy

Today, Senator Pat Roberts, Chairman of the Senate Intelligence Committee, wrote to Director of National Intelligence John Negroponte, asking him to investigate and report on the damage done by the media’s "unauthorized disclosure of some of our most sensitive intelligence programs." via Power Line Getting money to the Palestinians was so plugged up that they had to smuggle it in suitcases, so we’re doing something right. Hopefully, though, Negroponte, or someone, will conduct the investigation and we, or at least people who need to know, will know how much damage, if any, has been caused by the leaks.

The "splodydopes" obviously aren’t the sharpest knives in the drawer but the financiers have to be pretty smart to get the job, so my gut reaction is to tend to agree with you, Daniel. If I were one of them, I would assume every move I made was being watched, every conversation I had was being monitored, every record made by entities with which I did business was being collected and analyzed. Still, they have to try and get the money out somehow. SWIFT is out as of the date of the NYT article.

As an interesting side note, the Treasury Dept. is probably watching closely to see who stops doing business with SWIFT. Such a sudden change would be cause for suspicion.

I just wish to know that how can a person leak the secret information that has been given to him with such afaith.

These type of people should be sentenced the long punishment and treated strictly so that they can tell yoiu why the hell they do that!

Does anyone else think it’s funny that this guy’s name is McCarthy?

McCarthy seems spot on here. Those who reveal classified programs are violating an oath they took not to do so. It’s quite different than leaking, say, the contours of policy disputes within an administration ("sources report that secretary X went on a rant today...") and those who can’t be trusted to keep their word ought to be prosecuted and thrown in jail. What’s at all complicated about that?

Well, according to Ann Coulter’s Treason, McCarthy was RIGHT about communist infiltration into the government (via FDR and later Truman). She probably overstates the case, but weren’t there actual honest-to-God communists in the Federal government at the time, and weren’t they collaborating with the Soviet Union?

As for my reaction, I’d prosecute these people (although I suspect there is a political price for doing so). This nonsense has to stop...when "gotcha" journalism actually endangers Americans it’s time to use the judiciary.

Why not actually use the courts to attempt to prevent the publication? It worked once with the details of the H-bomb. If the story was as dangerous as the administration says, then it should have been able to make out a credible case.

Bottom line: the only danger here is an institutional one, namely, that an independent press might report on dissent within the administration.

Thanks for the quote, Uncle Guido.

Why not actually use the courts to attempt to prevent the publication?

Brett, in McCarthy’s article, several paragraphs down, you will find a paragraph that starts out as follows:

Some argue that the Supreme Court’s decision in the famous Pentagon Papers case.... Right after those words you will find a link to a United States Supreme Court case which addresses that which you propose. The Nixon administration tried to use the courts to keep the NYT and WaPo from publishing a classified document which came to be known as the "Pentagon Papers." It didn’t work. The Supremes ruled in favor of the media. Besides, imagine how the public’s interest in the secret info would be peaked by the mere fact that such a lawsuit was filed. Everyone would just have to know what the big secret was and reporters would be all over defense attorneys, investigators and witnesses trying to get the scoop. Bits and pieces would slip out here, there and everywhere. By the time the case made its way to the Supreme Court, everyone would already know the big secret.

The pentagon papers were an old internal history of the war effort, which was part of the reason that the Court wasn’t persuaded that an injunction should issue. Nothing in the case bars prior restraint in all possible future cases.

If the news article was so damaging, then any delay - however imperfect - should have been worth it to the administration. If there are really life-and-death matters at stake in the story, then the choice between a chance of a delay and no delay should be obvious.

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