Espionage Act - 1st Amendment Prblm

This WSJ editorial from awhile back speaks nicely to the underlying issue:

Our Rotten IntelligenCIA
April 26, 2006; Page A16

Fired CIA officer Mary O. McCarthy went on offense Monday, denying through her lawyer that she has done anything wrong. But the agency is standing by its claim that she was dismissed last week because she “knowingly and willfully shared classified intelligence.” It has been reported that one of her media contacts was Washington Post reporter Dana Priest, who just won a Pulitzer Prize for her reporting on the so-called “secret” prisons that the CIA allegedly used to house top level al Qaeda detainees in Eastern Europe.

We’re as curious as anyone to see how Ms. McCarthy’s case unfolds. But this would appear to be only the latest example of the unseemly symbiosis between elements of the press corps and a cabal of partisan bureaucrats at the CIA and elsewhere in the “intelligence community” who have been trying to undermine the Bush Presidency.


The existence of this intelligence insurgency first came to light in a major way with former Ambassador Joe Wilson, who wrote a New York Times op-ed in 2003 questioning the veracity of President Bush’s “16 words” about Iraq seeking uranium in Africa. Someone close to the White House had the audacity to point out that Mr. Wilson was an anti-Bush partisan whose only claim to authority on the matter was the result of wifely nepotism. Mr. Wilson has since been thoroughly discredited, including in a bipartisan report from the Senate Intelligence Committee. But former Vice Presidential Chief of Staff Scooter Libby is still being prosecuted as the result of a media-instigated investigation into the “leak” of Valerie Plame’s not-so-secret CIA identity.

There was also Michael Scheuer, a top counter-terrorism analyst who was allowed by the CIA to publish under “Anonymous” a scathing attack on Mr. Bush’s strategy to fight terror. There were the many selective election-year leaks of prewar Iraq intelligence fed to the likes of the Times’s James Risen, who also won a Pulitzer this year – for helping expose the National Security Agency’s anti-al Qaeda surveillance program. And there were the post-election attacks on then-U.N. Ambassador nominee John Bolton, led by intelligence analysts who had worked with him at the State Department.

The case of Ms. McCarthy appears to be as egregious as it gets as a matter of partisan politics. She played a prominent role in the Clinton national security apparatus and public records show she gave $2,000 to John Kerry’s Presidential campaign and even more to the Democratic Party. Such is her right. But rather than salute and help implement policy after her candidate lost, she apparently sought to damage the Bush Administration by canoodling with the press.

There is little doubt that the Washington Post story on alleged prisons in Europe has done enormous damage – at a minimum, to our ability to secure future cooperation in the war on terror from countries that don’t want their assistance to be exposed. Likewise, the New York Times wiretapping expos? may have ruined one of our most effective anti-al Qaeda surveillance programs. Ms. McCarthy denies being the source of these stories. But somebody inside the intelligence community was.

Leaving partisanship aside, this ought to be deeply troubling to anyone who cares about democratic government. The CIA leakers are arrogating to themselves the right to subvert the policy of a twice-elected Administration. Paul Pillar, another former CIA analyst well known for opposing Mr. Bush while he was at Langley, appears to think this is as it should be. He recently wrote in Foreign Affairs that the intelligence community should be treated like the Federal Reserve and have independent political status. In other words, the intelligence community should be a sort of clerisy accountable to no one.

CIA Director Porter Goss is now facing press criticism for trying to impose some discipline on his agency. But he not only has every right to try to root out insubordination, he has a duty to do so because it undermines the agency’s ability to focus on the real enemy. The serious and disturbing question is whether the rot is so deep that it is unfixable, and we ought to start all over and create a new intelligence agency.

The press is also inventing a preposterous double standard that is supposed to help us all distinguish between bad leaks (the Plame name) and virtuous leaks (whatever Ms. McCarthy might have done). Washington Post executive editor Leonard Downie has put himself on record as saying Ms. McCarthy should not “come to harm” for helping citizens hold their government accountable. Of the Plame affair, by contrast, the Post’s editorial page said her exposure may have been an “egregious abuse of the public trust.”

It would appear that the only relevant difference here is whose political ox is being gored, and whether a liberal or conservative journalist was the beneficiary of the leak. That the press sought to hound Robert Novak out of polite society for the Plame disclosure and then rewards Ms. Priest and Mr. Risen with Pulitzers proves the worst that any critic has ever said about media bias.


The deepest damage from these leak frenzies may yet be to the press itself, both in credibility and its ability to do its job. It was the press that unleashed anti-leak search missions aimed at the White House that have seen Judith Miller jailed and may find Ms. Priest and Mr. Risen facing subpoenas. And it was the press that promoted the probe under the rarely used Espionage Act of “neocon” Defense Department employee Lawrence Franklin, only to find that the same law may now be used against its own “whistleblower” sources. Just recently has the press begun to notice that the use of the same Espionage Act to prosecute two pro-Israel lobbyists for repeating classified information isn’t much different from prosecuting someone for what the press does every day – except for a far larger audience.

We’ve been clear all along that we don’t like leak prosecutions, especially when they involve harassing reporters who are just trying to do their job. But then that’s part of the reason we didn’t join Joe Wilson and the New York Times in demanding Karl Rove’s head over the Plame disclosure. As for some of our media colleagues, when they stop being honest chroniclers of events and start getting into bed with bureaucrats looking to take down elected political leaders, they shouldn’t be surprised if those leaders treat them like the partisans they have become.

[quote]doogie wrote:
Honest question for ya. If the government (ours or Israel’s) is so heinous and evil, why are you still allowed to post this drivel? Why haven’t you been paid a visit in the dark of night by a Mossad agent or even a mid-level Department of Homeland Security hitman?[/quote]

Because they’re is no need for it.

If many “conspiracy theorist” started disappearing or winding up dead of mysterious causes, you’d probably have more of a problem than you do now (which is pretty much no problem at all.)

The conspiracy theorists tend to take care of themselves, because they eventually embrace so many kooky theories that any valid ones they also have is lost in the noise. It’s easy to dismiss the more plausible conspiracies (which might have some meat to them) by pointing out the other, far-fetched ones and destroying their credibility that way.

[quote]pookie wrote:
The conspiracy theorists tend to take care of themselves…
[/quote]

They are fond of wearing tin-foil hats, and monitoring white noise from the television for guidance.

[quote]BostonBarrister wrote:
ExNole wrote:
Zap Branigan wrote:
ExNole wrote:
This looks like it targets whistelblowers and reporters.

Bad deal, I agree that aiding the enemy is clearly a crime, while leaking information to a reporter is not.

Haven’t most of the really nasty scandals only be revealed through leaked classified info? Watergate, Abu Ghraib, how many others?

It all depends on the nature of the leak.

Exaactly, the leak itself shouldn’t be automatically criminal, though that really wasn’t clear in my post.

If anything, the original leak should be the only thing that is criminal, as the original leaker is the one with the duty to protect the information. This is especially true when the original leaker is an employee of the CIA or some other intelligence agency, or in the military.

Aside from something like nuclear-weapon plans or battle plans, which would be extreme cases, I fail to see how the recipient of the leak can be prosecuted for further spreading the information – at least consistent with the 1st Amendment.
[/quote]

But if they leak something that reveals illegal activities, should that be a crime, or is the punishment part of the risk a whisteleblower faces?

[quote]ExNole wrote:

But if they leak something that reveals illegal activities, should that be a crime, or is the punishment part of the risk a whisteleblower faces?[/quote]

I suppose that depends on whether something is clearly illegal or just may be illegal – with the bias toward protecting national-security secrets.

Reporting fraud is the stuff whistleblowing is for – not elevating disagreements of policy or the extent of political power among the branches.