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View Diary: Journalist Surveillance Goes Far Beyond AP (97 comments)

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  •  I don't see how this issue can be discussed (4+ / 0-)

    without analysis of the leak in question.  This involved internal State estimates of DPRK's reaction to UN resolutions regarding its nuclear programs.  The leak didn't expose governmental wrongdoing and effectively advocated North Korea's interests in raising the costs of enforcing a UN resolution.  This diary doesn't mention it, and Greenwald declares it "innocuous" in passing and without any consideration.  (As verbose as he is, a single adjective is very often the sum-total of his argument.)

    But there's really a matrix here, tracking leaks that are legal versus illegal; and those that are justified or unjustified (depending on the benefits to society from this knowledge versus potential costs).  So, any leak can be one of (L,J), (L, U), (I,J), (I,U).  Illegal and Unjustified should get the lowest protection.  Illegal but Justified presents the tough cases, and it's there that the administration should exercise restraint, but even there, a validly-obtained warrant is only "spying" in the loosest sense of the term.

    "Extrapolates" in this context means "commits the slippery slope fallacy."  If Greenwald were more precise in claims like when it is legal or illegal to publish classified information, such as when the reporter helped bring about the leak versus merely receiving knowingly unlawfully obtained or disclosed information; and were more willing to take certain types of leaks more seriously (nothing in the Wikileaks dump should have remained?), the conclusion would be less drastic, but would also not support the narrative.  (Calling something a "war on leaks" justifies the same intellectual shortcuts as "war on terror.")

    Mere information gathering by the DOJ, in fact shows pretty clear restraint, and while unlike the AP investigation, the information gathered was information in which the reporter had a protected privacy interest (the mere fact of a phone call is different from its content but e-mails are indeed plausibly private), Rosen was adequately protected by independent judicial review.  

    Fox's status as Fox has nothing to do with this critique of the critique, by the way.  I don't think Rosen is one of their real partisan guys.  The point is looking beyond the subpoena for its "implications" is less thoughtful than looking within it for the prospect that maybe DOJ has a point and does things right sometimes.

    Difficult, difficult, lemon difficult.

    by Loge on Mon May 20, 2013 at 08:57:28 AM PDT

    •  Please, please, do a diary to fully expound (1+ / 0-)
      Recommended by:
      virginislandsguy

      upon your comment.

      I am having difficulty discerning between whisteblowers and leakers.  Surely there is a difference and if so, should they be treated differently?

      Thank you for your comment.  I really hope you diary (diarize?) it further.

      •  Whistleblowers and leakers (1+ / 0-)
        Recommended by:
        chuckvw

        Whistleblower - what you call a leaker when the other party is in Power.

        Leaker - What you call a whistleblower when our party is in power.

        •  Well HERE we have whistleblowers AND leakers (1+ / 0-)
          Recommended by:
          gooderservice

          AND guns.  A trifecta today:

          The Justice Department inspector general said Monday that the former U.S. attorney in Phoenix retaliated against the main whistleblower in a botched federal gun operation by leaking information to a television producer that was meant to harm the whistleblower’s credibility.
          --Washington Post, 5/20/13

          "Injustice wears ever the same harsh face wherever it shows itself." - Ralph Ellison

          by KateCrashes on Mon May 20, 2013 at 03:18:39 PM PDT

          [ Parent ]

      •  The issue here (22+ / 0-)

        isn't leaked info but the right to published leaked info, which the 1st Amendment protects and is legal in all but extreme cases.

        •  In fact, there was no justification I can see (6+ / 0-)

          for the WH or the DOJ to freak out over what AP did in the first place. As I've quoted elsewhere, here is Marcy Wheeler's take on this issue

          It seems the government asked AP to hold the story for security reasons. AP complied. Five days later, on a Monday, the government told them that said security reasons no longer existed. AP wanted to go with the story. the government said, no, let us break it instead tomorrow morning (Tuesday). AP said, hell no, if there's no security risks we are going to run the story.  The gov't not wanting to be scooped is not justification for suppressing a story.

          Then there's the fact that Brennan can't control his mouth and told the press that we had inside control of the bomb plot. So apparently the WH could also have been pissed that they were caught in a contradiction:  that they told the public there was no threat while they were actually counteracting a real threat of bombing.  But as my boyfriend just said today, that's more or less any day in the life of the CIA, isn't it? Of course the government tells people there's no threat while they work to stop the threat, rather than telling people there's a threat and panicking them. This is just normal.  What's not normal is getting your panties so wadded about the press publicizing this sort of thing well after the fact that you seize phone logs of a hundred of them in an apparent attempt to scare government officials out of talking to the press.

          If we're so goddamned worried about leaks, why is Brennan, who made the slip in the first place, in charge of the CIA?

          "When people spin this in partisan terms to obfuscate the truth, it does a real disservice to normal people not in the big club in DC. Many of them will be hurting...That is why I write."--priceman

          by SouthernLiberalinMD on Mon May 20, 2013 at 09:42:13 AM PDT

          [ Parent ]

      •  I explained the difference in 2010 (15+ / 0-)
        Unfortunately, the terms "leaking" and "whistle-blowing" are often used synonymously to describe the public disclosure of information that is otherwise secret. Both acts have the effect of damaging the subject of the revelation. But leaking is quite different from blowing the whistle. The difference turns on the substance of the information disclosed. The Whistleblower Protection Act protects the disclosure of information that a government employee reasonably believes evidences fraud, waste, abuse or a danger to public health or safety. But far too often, whistle-blowers are retaliated against, with criminal prosecution being one of the sharpest weapons in the government's arsenal.

        For example, Daniel Ellsberg, the patriarch of whistle-blowers in modern times, disclosed the Pentagon Papers, a secret government study of the Vietnam War, to the New York Times. The publication of the papers helped to end the Vietnam War. But Ellsberg was still prosecuted. Tamm revealed an indisputably illegal secret surveillance program, but he has been under criminal investigation since Dec. 30, 2005, a case that remains open. I am still under investigation by the Washington, D.C., bar after nearly seven years, despite the hypocrisy of the Justice Department in declining to prosecute — much less refer to licensing bars — the lawyers who wrote the torture memos related to detainees after 9/11.

         In contrast, when I. Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, unmasked covert CIA operative Valerie Plame, he was not trying to disclose evidence of wrongdoing; in fact, quite the opposite. He put at risk national security and people's lives to undermine a critic. He was trying to punish former Ambassador Joseph Wilson by outing his wife. Libby was leaking, not whistle-blowing. His disclosure to the media had no intrinsic public value whatsoever, and he was rightly prosecuted and convicted.

        The common denominator of whistle-blowers is the same: They disclose information of significant public importance that reveals illegal, unconstitutional or dangerous conduct, often at the highest levels of government. The government should not be allowed to hide illegal conduct under official-sounding labels such as "classified," "privileged" or "state secrets," which confer an aura of legitimacy on alleged crimes, and whistle-blowers should not be prosecuted.

        http://articles.latimes.com/...

        My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

        by Jesselyn Radack on Mon May 20, 2013 at 09:32:17 AM PDT

        [ Parent ]

        •  I agree with this completely, (4+ / 0-)
          Recommended by:
          virginislandsguy, grover, native, duhban

          but it's not a concept that applies itself.  Both terms are too charged to be of much use.   A disclosure is either in violation of an existing statute, or not; and it's either justified in the public interest, or no; or somewhere along ta continuum.  The Pentagon Papers case protects the press from prior restraints, but it does so at the suggestion that the government adopt internal checks to prevent unwanted disclosures, and a plurality were open to after the fact prosecutions in certain circumstances (since narrowed).  The above analysis, however, conflates a Constitutional objection with a policy one, even though the Constitutional issues are not that strong and the policy issues are ambiguous, based on the circumstances of each particular leak.

          Difficult, difficult, lemon difficult.

          by Loge on Mon May 20, 2013 at 10:01:53 AM PDT

          [ Parent ]

        •  Stephen Kim's website, that you link to (0+ / 0-)

          states that it is a "leak" case.

          the case against Stephen Kim seems to be based on a prosecutor’s theory that Stephen talked to someone in the media about a topic of current events and – in that one and only conversation – disclosed classified information. It is a “leak” case. Along with many who have commented, we think an unfounded one. [link]

          Thirteen men can't tell The People what is Constitutional and what isn't

          Conservative "constitutional scholar" referring to SCOTUS

          by jam on Mon May 20, 2013 at 01:32:17 PM PDT

          [ Parent ]

      •  here's the difference (5+ / 0-)

        No need for Loge to continue on with his obama defending bloviations...

        Noble Whistleblowers = guys who expose crimes/mismanagement under Bush and Republicans (see, e.g., Ellsberg)

        Illegal leakers who should rot in jail = guys who expose crimes/mismanagement under Obama (see, e.g., Bradley Manning)

        •  I'm not ready to presume Manning's guilt. (0+ / 0-)

          And, I believe most of the misconduct he allegedly exposed was under Bush.  Other than the fact there is more misconduct under R's than D's, so such a discloser is more likely to be a "whistleblower," I express myself in full paragraphs to avoid having arguments reduced to such obvious strawmen.   It's not that I'm not partisan nor not pro-Obama, when I'm proudly so, but the way you put it is far too unsubtle to be interesting.  You might be concise, but since you actually detracted from the conversation, it's you who used a lot of words to say nothing.  I actually suspect you just imagined why anyone might think the subpoena could be justified and attributed why you imagine the argument to be to me.   When in fact, you could switch parties and substitute MSNBC for Fox, and the point would be the same.  If anything, I'm guilty of believing that the US has national interests contrary to North Korea and contrary to extremist groups in Yemen.  If many Democrats take a contrary view, I disagree with my party.

           Not all whistleblowing involves leaking of confidential information, is another distinction.  This is a Romantic notion of the press taking pride of place compared the reality of what they really do, and the extent to which case law protects them.

          Difficult, difficult, lemon difficult.

          by Loge on Mon May 20, 2013 at 06:13:56 PM PDT

          [ Parent ]

    •  Here's Marcy Wheeler's report of the facts (6+ / 0-)

      "When people spin this in partisan terms to obfuscate the truth, it does a real disservice to normal people not in the big club in DC. Many of them will be hurting...That is why I write."--priceman

      by SouthernLiberalinMD on Mon May 20, 2013 at 09:33:27 AM PDT

      [ Parent ]

      •  Is that the right link? Nothing on DPRK. (1+ / 0-)
        Recommended by:
        virginislandsguy

        Also, you didn't ask nicely.

        As far as this goes, I think the issue is that what the AP reported didn't entirely contradict Carney's statements , and allegedly threatened to expose a British agent.  (I don't know if that was true; Carney used seemingly ambiguous words like "plotting" and "credible information," and this was apparently caught early and the story reports Obama was told there wasn't a threat to the public at that time in April.  Still, Carney shouldn't have answered the question.)

        More importantly, to the extent the searches just obtained the mere fact of phone calls, it's a relatively narrow search given the apparent circumstances of the leak.   The information didn't show any more than that the AP were recipients of possible national security information, and even if they knew the information was obtained unlawfully, there would be nothing illegal in publishing it. (Bartnicki v. Vopper.)  With Rosen, he played a much more active role in bringing about the leak itself, not acting a passive conduit or cultivating a relationship such that he could be a conduit, thereby justifying a more intrusive search, but not a prior restraint on publication.  None would have implicated a testimonial privilege, though, which the administration supports creating legislatively at the federal level (at least officially).

        For all the talk of "unprecedented," Rosen should know what the line is.  The AP did nothing wrong, except paraphrase in a highly misleading way in the underlying story, but they also didn't suffer any intrusion upon a privacy interest, just bare phone logs, the fact of which they'd have to disclose in the event there were a testimonial shield, to justify why their reporters wouldn't testify about the content of the related communications.

        Difficult, difficult, lemon difficult.

        by Loge on Mon May 20, 2013 at 09:56:07 AM PDT

        [ Parent ]

        •  100 reporters' phone logs over two months (1+ / 0-)
          Recommended by:
          gooderservice

          is narrow?
          Seizing two months' worth of phone logs isn't any intrusion upon a privacy interest?

          OK.

          As far as asking nicely, is concerned, that was nicely.

          "When people spin this in partisan terms to obfuscate the truth, it does a real disservice to normal people not in the big club in DC. Many of them will be hurting...That is why I write."--priceman

          by SouthernLiberalinMD on Mon May 20, 2013 at 10:18:50 AM PDT

          [ Parent ]

          •  the narrowness is in obtaining logs themselves, (0+ / 0-)

            versus the content of the communications.  This discloses nothing more than what phone lines were used, and for how long; not what was said, or necessarily who was on the line.  Yes, two months is narrow, and the number of reporters would seem to depend on the number who worked on a given story (which was clearly an aggregation of a number of different threads).  The downside is it would include a variety of records unrelated to the subject of the investigation, but outside of conspiracy theories, nobody does anything with that information.  

            I expect pleases and thank yous from Southerners (though not Marylanders, who are terrible drivers), and nothing stopped you from drawing your own conclusions from the story versus believing a link was sufficient (clearly not, since Marcy Wheeler wasn't answering the same question you were trying to).

            Difficult, difficult, lemon difficult.

            by Loge on Mon May 20, 2013 at 10:28:02 AM PDT

            [ Parent ]

            •  Marcy Wheeler was establishing the facts (1+ / 0-)
              Recommended by:
              gooderservice

              of what happened when, and what AP did that might have brought about such a response from the administration. You said you wanted to analyze those facts; I provided a link. You're upset I didn't say please?

              OK.

              Thank you for analyzing the facts.

              "When people spin this in partisan terms to obfuscate the truth, it does a real disservice to normal people not in the big club in DC. Many of them will be hurting...That is why I write."--priceman

              by SouthernLiberalinMD on Mon May 20, 2013 at 10:43:41 AM PDT

              [ Parent ]

              •  not upset at all (0+ / 0-)

                pulling your chain.  

                I thought I had done a 10,000 meter one for the North Korea / Rosen situation, and I thought by that link you were suggesting I hadn't.  

                let's move on.

                Difficult, difficult, lemon difficult.

                by Loge on Mon May 20, 2013 at 10:49:28 AM PDT

                [ Parent ]

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