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  •  We don't have the First Amendment to protect (10+ / 0-)

    the views of people with whom we agree. We have it to protect the views of people with whom we disagree.

    Judith Miller went to jail for many days for contempt, rather than reveal the identity of her source. The government, rather than confront Rosen and demand his sources, decided to spy on him.

    Are you saying the government was within its rights to spy on Rosen on the grounds of 'national security'? If so, can you please point me to that spot in the Constitution or case law where 'national security' trumps press freedom from government intrusion?

    •  The problem with your question (4+ / 0-)

      can be summed up in one other question:

      Can you point me to the spot in the Constitution where security trumps the right to bear arms?  

      The fact is, the risk to security has always led to restrictions on the first amendment concerning classified information, depending on the nature of the risk and the motivation of the publication.  (see Near v Minnesota, cited in NY Times v US, and also see Schenck v US.)

      And is it spying on someone to ask a judge for a warrant to search their records pursuant to a criminal investigation, then searching their records?  The judge approved the warrant, in line with the 4th amendment.  

      I know it's easy to get upset about "spying on the press", but this wasn't spying on the press.  This was a routine investigation of a leak of classified information.  I don't see why they wouldn't check Mr Rosen's phone records once they knew he'd been frequenting the suspected leaker.  

      Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

      by nominalize on Fri May 24, 2013 at 09:29:23 AM PDT

      [ Parent ]

      •  The Rosen Affair went way beyond merely getting a (5+ / 0-)

        warrant for phone records. Apparently, the FBI monitored Rosen's physical comings and goings from the State Department building, read his emails, and so on. Hence, "spying on the press."

        You're seeking to excuse what even ardent defenders of Obama, like Michael Tomasky, conclude goes way over the line in violating freedom of the press. As Tomasky says, it really doesn't matter whether Rosen was reporting for Fox News or The Daily Worker -- in either case the government's behavior is outrageous.

        •  I'm not a fan of (3+ / 0-)
          Recommended by:
          KayCeSF, jdsnebraska, Tony Situ

          appeal-to-authority fallacies. You'll have to try harder than that.

          But let me get this straight... the FBI, in pursuing leaks of sensitive information, watched the door of the State Department to see who went in about the time the suspected leaker was leaking documents.  

          Of course, you have to wonder how a police state would let people just walk right into their buildings to read their secret documents.

          What this means is that in the future, reporters will have to meet their leakers away from the leaker's office. OH NO!!!!  

          And... they got a warrant to search his e-mails, in regards to violations of the Espionage Act... a judge agreed to it, and that is the hallmark of tyranny?  

          Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

          by nominalize on Fri May 24, 2013 at 10:18:53 AM PDT

          [ Parent ]

          •  If you aren't a fan of 'appeal-to-authority' (4+ / 0-)
            Recommended by:
            BradyB, deep info, aliasalias, 3goldens

            arguments, you probably won't agree with the ACLU and the Electronic Freedom Foundation's strenuous objections to the government's behavior in the Affair Rosen either. Is that really where you want to place yourself, in opposition to the ACLU? If so, have at it.

            The affidavit Holder signed cited Rosen as a 'possible co-conspirator'. Are you associating yourself with that rubbish? If so, be my guest. But please understand that it is not, nor has it ever been, a crime to report on or publish classified information.

            •  The affidavit Holder signed (1+ / 0-)
              Recommended by:
              Tony Situ

              cited Rosen as "an aider and abettor and/or co-conspirator" (point 5, page 3)

               I don't think anyone would dispute that Mr Rosen was aiding and abetting this violation of 18 USC s 793(d).  As it happens, 18 USC s 793(g) says that conspiracy to violate 793(d) is punishable by the same punishment as 793(d) (the same way getaway drivers are punished the same as the robbers).  In that sense, being an aider and abettor may make him a co-conspirator.

              Now, whether he was a co-conspirator would depend on the evidence, and that's what the warrant-seekers sought to seek. With a warrant. A judge found suitable probable cause to accept the warrant.  

              Now, as the affidavit also points out, the Privacy Protection Act specifically protects journalists from this kind of prosecution... UNLESS the act they abetted was a violation of 18 USC 793(d).  

              You know what? All this is in the freakin' affidavit.  Why don't you bother reading it yourself.  

              Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

              by nominalize on Fri May 24, 2013 at 01:56:24 PM PDT

              [ Parent ]

              •  Oh, come on. By that logic, Neil Sheehan (the (1+ / 0-)
                Recommended by:
                3goldens

                reporter who broke the story of the Pentagon Papers, having received Ellsberg's leak of them) would be a "co-conspirator," an "aider-abetter" to Ellsberg's leak of the PP. Not even the slimy Nixon stooped to the level of going after Sheehan. (Although one can say with a fairly high degree of confidence that had Nixon done so, his attack on press freedom would have been met by howls of outrage, and rightly so, here on DKos.)

                It is not now, nor has it ever been, a crime to report on or to publish classified information. What this fishing expedition does is to criminalize the pursuit of information. Whether you call that 'aidingabetting' or 'co-conspirator' doesn't change the fact that the subject of the warrant was a friggin' reporter.

                I'll tell you what: I'll read the affidavit if you'll read the ACLU's condemnation of the government's overreach:

                The ACLU's take on the Rosen Affair

                •  You also ought to read this fascinating account (0+ / 0-)

                  of Nixon's decision-making in the Pentagon Papers affair:

                  Nixon tapes on the Pentagon Papers

                  What emerges is that Nixon decided to go after the entire Times newspaper, instead of the individual journalist, so as to prevent publication of what had already been leaked.   The SCOTUS nixed the publication ban in their NY Times v US decision. They said nothing about the actual violation of the Espionage Act.

                  In doing so, SCOTUS upheld the first judge's decision on the case.  He was a recent Nixon appointee, and refused to grant an injunction on the material, on the grounds that this was not worth banning:

                  No cogent reasons were advanced as to why these documents except in the general framework of embarrassment… would vitally affect the security of the nation."
                  That is to say--- the Pentagon Papers were very embarrassing but did not endanger our national security.  So they got a pass.
                  As well they should have: The Pentagon Papers detailed how multiple administrations lied and cheated us into the Vietnam War, and undermined governments overseas. (When the Bush administration lied us into Iraq, they made sure not to leave the evidence behind).

                  Now, the Rosen leak did nothing but tell North Korea we had spies who'd leaked to us what their plans would be if we put on sanctions. This is the article in question.  That's nothing worth breaking the law for.  Now, given the speed with which we found our leaker once we knew there was a leak, even with warrants and due process, imagine how fast the North Koreans found their leaker.  And of course, their spies they execute their spies forthwith, and ship their entire families off to labor camps. I'm sure that while they're enjoying their scoop of gruel after a grueling day at backbreaking work, they'll take consolation in the fact that at least Mr Rosen got his scoop.

                  The fact is, the crime isn't reporting or publishing the information.  That isn't at issue. The crime was leaking the information, and the reporter helped that crime happen by soliciting it.  The DOJ asserted that nature of the information voided the reporter's protections under the Privacy Protection Act, and a judge agreed enough to permit the warrant. Those are all facts.  You say "it cannot be a crime, because magic press badge." Well, I've pointed out the law to you, and just saying "it can't be" doesn't change the fact that according to the laws passed by the legislative branch, signed and carried out by the executive branch, and repeatedly upheld by the judicial branch, it is illegal to solicit classified information that damages our national security.  

                  Fun footnote: Frustrated by the inability to ban the publication of the Pentagon Papers, Nixon then set up his "plumber" squad to illegally dig up dirt to discredit Ellsberg (the leaker). This squad would later get caught breaking into the DNC's Watergate headquarters.  Obama has not stooped nearly so low.

                  Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

                  by nominalize on Fri May 24, 2013 at 09:20:13 PM PDT

                  [ Parent ]

                  •  I don't think there is any way to cut this (0+ / 0-)

                    Gordian knot.

                    Rosen reported that North Korea planned to respond to renewed sanctions by testing more nuclear weapons. I didn't need a spy in Pyongyang to be able to make that prediction - I think it falls under the purview of the Department of the Obvious. So I think the claim that Rosen's article somehow damaged national security is somewhat  akin to waving the post-9-11 bloody shirt.

                    You write a couple very interesting sentences:

                    The fact is, the crime isn't reporting or publishing the information.  That isn't at issue. The crime was leaking the information, and the reporter helped that crime happen by soliciting it.
                    Well, there's a school of thought that says that "soliciting" information -- classified or otherwise -- from reluctant sources is the job of investigative journalists. Rosen was targeted for engaging in behavior common to many investigative journalists, Neil Sheehan not least among them.

                    Speaking of Nixon's motivations in seeking to quash publication of the PP, hope you've read Robert Parry's recent article on why Nixon so feared the PP - acc. to Parry, Nixon feared that the PP that hadn't been published but that Ellsberg might control contained documentation of his treason vis-a-vis the 1968 Paris peace talks. That evidence existed but Ellsberg didn't have it. Instead, LBJ aide Walt Rostow had it and donated it to the LBJ Library (in a file called "The X Enveleope"). Fascinating stuff, even if not really germane to this thread:

                    Robert Parry on Nixon's fear of the Pentagon Papers

                •  I've read the ACLU statement... (0+ / 0-)

                  (thanks for the link!)  ...and I disagree, as you might have guessed.  Frankly, the fear that the law could apply to innocent questions is so overblown as to practically ludicrous.  

                  That would, quite literally, make virtually any question by a reporter implicating classified information a potential felony.
                  Umm, no.  Asking a question and getting an answer, especially in an adversarial context like a press briefing, does not mean that you and the answerer "conspire to violate [793(d)]".  Any judge would laugh such a contention out of court.  It's clear from the affidavit that Mr Rosen did much more than just ask questions. That's why the FBI went to a judge, and the judge not only didn't laugh them out of court, but also found probable cause for a search warrant.

                  Now, I'll grant the part about not disclosing the search could probably have been avoided, but it's hardly a chilling step towards tyranny.  The guidelines of notifying the press within 90 days after searches (which wouldn't exist if the searches never happened before) can be strengthened a bit.

                  But then, Mr Rottman then says that we should accept "bad" speech as the price for "good" speech.  And he's right.  But Mr Rosen's revelation wasn't "bad" speech, it was needlessly dangerous speech, and that has never been protected, and shouldn't be.  This isn't the Nazis in Skokie, or the Westboro folks at a soldier's funeral.  This is shouting fire in a crowded theater when there is no fire -- it puts people in danger and has no public benefit.    

                  Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

                  by nominalize on Fri May 24, 2013 at 09:45:29 PM PDT

                  [ Parent ]

              •  I've now read the affidavit. I think the judge (0+ / 0-)

                and perhaps you yourself have fallen victim to the 'intentional fallacy' (an idea borrowed from my days in graduate school in literary criticism).

                Basically, the 'intentional fallacy' argues that one cannot necessarily impute intent to any written first-person utterance. The 'I' in any written work is a constructed persona with aims and intentions that may not necessarily coincide with the aims and intentions of the real author behind it. One can never 'know' definitively the intent of any author of any piece of writing.

                To ground this in the specifics of this affidavit (itself citing portions of a May 22, 2009 email, wherein Rosen employs the nom de plume of 'Alex' and Kim is given the name 'Leo'):

                Thanks Leo. What I am interested in, as you might expect, is breaking news ahead of my competitors . . . . In short, let's break some news, and expose muddle-headed policy when we see it - or force the administration to go in the right direction, if possible. The only way to do this is to EXPOSE (sic) the policy . . . and the only way to do that authoritatively is with EVIDENCE. (sic)
                One of the ways investigative journalists operate is to appeal to the source's heroic self-imaging of himself and we can see that the real Rosen is doing this by asking Kim to "EXPOSE . . . with EVIDENCE." You can rightly object that investigative journalists seduce their sources by such patently obvious ploys but that has never been against the criminal laws of this country.

                To continue along this line of 'intentional fallacy,' one might impute that when the "I" in the email says "Let's break some news" that the real Rosen is conspiring with Kim. But again, one can counter-argue that Rosen has created the persona of a 'crusader' making common cause with Kim when the real Rosen's interest comes in the very first sentence ("breaking news ahead of my competitors").

                I am having a devil of a time finding a version of this affidavit on line that will load easily over my wireless connection and that allows me to copy and paste, so had to type the foregoing excerpt free-hand. As a result, I may be missing a portion of the affidavit that you consider essential to this case. If so, can you please indicate what portions (or even page numbers) if any I should be reading?

                For more on how journalists interact with, seduce and otherwise secure cooperation from their sources, I cannot recommend highly enough Janet Malcolm's seminal 1990 book The Journalist and the Murderer (about journalist Joe McGinniss and convicted murderer Jeffrey MacDonald). The book should be required reading for anyone seeking to criminalize the behavior of journalists. The wiki below is a great place to start if you're pressed for time:

                Janet Malcolm's The Journalist and the Murderer

        •  The FBI does that in any criminal investiga (1+ / 0-)
          Recommended by:
          Tony Situ

          Surveilance in public areas is not "spying."  Collecting emails pursuant to a duly-issued search warrant is not "spying."  This is called "police work."  Read the friggin' Fourth Amendment.

          I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

          by ccyd on Fri May 24, 2013 at 10:58:44 AM PDT

          [ Parent ]

          •  Ah, but signing an affidavit listing a reporter as (2+ / 0-)
            Recommended by:
            aliasalias, 3goldens

            a "possible co-conspirator"??? When case law has never made reporting on or publishing classified information a crime?? Why don't you read up on the friggin' Fourth Amendment after you're done Sieg Heiling?

            •  Read the affidavit (0+ / 0-)

              The judge wouldn't have checked off on it unless there was probable cause that the reporter had committed a crime.  I'll take the judge's word for it over yours.

              And you can cram your "Seig Heil"

              I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

              by ccyd on Fri May 24, 2013 at 12:04:47 PM PDT

              [ Parent ]

              •  Before I cram my 'Sieg Heil,' I would like you (2+ / 0-)
                Recommended by:
                aliasalias, 3goldens

                to consider that you, by agreeing with this judge's issuance of the warrant, are agreeng that the gathering of news is itself a criminal offense.

                To quote from the ACLU:

                What's astonishing here is that never before has the government argued that newsgathering—in this case, asking a source to provide sensitive information—is itself illegal. That would, quite literally, make virtually any question by a reporter implicating classified information a potential felony. The logic behind the FBI's warrant application would extend even to a reporter asking a question at a public press briefing at the CIA, Pentagon, or State Department. If the question is designed to elicit the disclosure of classified information, and prompts that disclosure, I don't see how the reporter couldn't be held responsible under the FBI's rationale.
                ACLU on the Rosen Affair

                You want to line up with this judge against the ACLU, be my guest. Just don't come touting your civil liberties credentials and not be expected to be laughed off of the board.

                •  and that is really tendentious reasoning (0+ / 0-)

                  It's at the level of "gun registration will lead to Nazi death camps".
                   

                  self-appointed intellectual cop

                  by citizen k on Fri May 24, 2013 at 12:57:54 PM PDT

                  [ Parent ]

                •  Sometimes warrants are just valid (1+ / 0-)
                  Recommended by:
                  Tony Situ

                  And sometimes the ACLU is wrong.  I do not agree with their characterization in this case.

                  If the ACLU wants to take up Rosen's case, then good for them.  I had a law professor who was a no-exceptions First Amendment disciple.  He would say, "What's so difficult to understand about 'Congress shall make no law?'"  Yet, there are lots of exceptions to the First Amendment.  It is important to have the ACLU out there protecting the edges of the envelope (they do much more than that, but protecting the edges is one of the things they do), but that doesn't make it the law, nor does it make the ACLU the arbiter of the law.  The law is determined by judges and it is what it is, not what the ACLU wishes it were.

                  I take it that you still haven't read the affidavit.  All the DOJ needs is probable cause, which isn't a particularly high standard.  A Federal Judge determined that the strictures of the Fourth Amendment were met and issued the search warrant.  The DOJ gathered its evidence and ultimately decided not to bring charges against Rosen.  Police work is like that -- there are times when the evidence collected under a search warrant is inconsistent with bringing an indictment, and it looks like this case is one of those times.

                  At this point, the warrant is valid and there is no process by which to test that determination.  There is no Art. III case or controversy here because the DOJ's decision not to bring charges renders the matter moot.  If the DOJ changes its mind and does bring charges, then Rosen can challenge the evidence obtained under the warrant.  He'll lose, and appeal, lose again and the the Supreme Court will deny cert.  The Espionage Act is pretty broad and has been upheld many times.

                  And, hey, if I'm wrong, I'm wrong and I'll write a diary that says "CharlesInCharge was right about the Rosen case and I was wrong."  So far, I'm not sharpening my pencil.

                  And by the way, I've represented the ACLU on a couple of occasions in my career on matters involving civil liberties, so I'll tout my credentials however I please.

                  I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

                  by ccyd on Fri May 24, 2013 at 02:17:26 PM PDT

                  [ Parent ]

            •  sorry, but a judge thoght different. (0+ / 0-)

              Had the judge agreed with you, he/she would have denied the warrant.  Sorry, but them's the breaks.  Nobody wins 'em all.  Your side lost this time.  You can keep shouting to the sky, shaking your fist, but that won't change the judge's decision to grant the warrant.

        •  OH MY GOD (1+ / 0-)
          Recommended by:
          Tony Situ

          The State Department monitored Rosen's physical comings and goings from the State Department building like they do for everyone else. How sinister.

          self-appointed intellectual cop

          by citizen k on Fri May 24, 2013 at 04:45:24 PM PDT

          [ Parent ]

          •  Um, well actually it was the FBI who monitored his (0+ / 0-)

            comings and goings from the State Department. Hence the phrase 'spying on journalists.'

            •  The FBI looked at the security records (0+ / 0-)

              from the state department building.  He went to the security entrance, showed ID and signed in.  You think the FBI is "spying" when they look at that record?

              self-appointed intellectual cop

              by citizen k on Sat May 25, 2013 at 05:07:28 AM PDT

              [ Parent ]

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