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The main-stream-media justifiably has its dander up about the Justice Department secretly obtaining records for AP phone lines impacting over 100 journalists.

The Justice Department seized the AP records as part of a "leak investigation," which fits nicely with the Obama administration's unprecedented crackdown on so-called "leakers," who are usually whistleblowers, using the heavy-handed Espionage Act. Espionage Act defendant Stephen Kim appears to be another whistleblower, whose disclosures that U.S. intelligence officials had warned that North Korea planned to respond to a new round of U.N. sanctions with another nuclear test, while hardly revolutionary for anyone with expertise on North Korea, were indisputably in the public interest. Putting aside Kim's status as a whistleblower, his case is another "leak" investigation that the government used as the basis for spying on a journalist.

The Washington Post reported today:

When the Justice Department began investigating possible leaks of classified information about North Korea in 2009, investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails.

Glenn Greenwald extrapolated how far the Justice Department's arguments in the Kim case go:
But what makes this revelation particularly disturbing is that the DOJ, in order to get this search warrant, insisted that not only Kim, but also Rosen - the journalist - committed serious crimes. The DOJ specifically argued that by encouraging his source to disclose classified information - something investigative journalists do every day - Rosen himself broke the law.
(emphasis added.)

Keep in mind that all experts agree that far too much information is deemed "classified." In FY 2011 alone, government agencies reported over 90 million decisions to classify information. That's a lot of information that could potentially criminally implicate journalists. The Justice Department's directly accusing a journalist of breaking the law by encouraging a source to revealed allegedly "classified" information is even more nefarious considering that the biggest "leaker" of all is the U.S. government.

The message to journalists is clear. If the media publishes "classified" information that the government wants made public, those journalists receive increased access and can continue their work unfettered by invasive surveillance. But, if journalists write about government waste, fraud, abuse, mismanagement or illegality, they should be ready for harassment, surveillance, and criminal investigation.

The government's extensive targeted surveillance aimed at Fox News reporter James Rosen in the Kim case has an undeniable chilling effect on reporters' and sources' First Amendment rights, and, worse, the monitoring is not all that unusual for the Justice Department over the past decade.  

In 2006, the government targeted New York Times reporter and author James Risen. Risen is in the midst of fighting the Justice Department's repeated attempts to force him to testify about his source in another Espionage Act prosecution, and described the invasive surveillance in an affidavit:

ABC News reported on May 15, 2006, that senior federal law enforcement officials had informed them that the government was tracking the phone numbers of journalists without the journalists' knowledge as part of an effort to root out the journalists' confidential sources. . . I was mentioned by name as one of the reporters whose work the government was looking into.
At the National Press Club last year, Risen explained that democracy depends upon the Fourth Estate.
Can you have a democracy without aggressive investigative journalism? I don't believe you can, and that's why I'm fighting.
Risen's New York Times colleague Eric Lichtblau actually moved off of the Justice Department beat in part out of fear of a subpoena:
I heard from various news sources that the FBI had been monitoring my phone and Internet communications with certain people as part of its leak investigation into our NSA story. . . When I initially moved off the Justice Department beat in 2009, part of the thinking there was the threat of the subpoena
Countless other journalists have said the Espionage Act prosecutions and increased government surveillance have chilled their reporting. The Freedom of the Press Foundation has a must-read synopsis.

Combine the chilling surveillance of the AP, Rosen, Risen, and Licthblau with what National Security Agency (NSA) whistleblowers like Bill Binney have had to say about NSA's domestic spying operations, and what the public knows about the government's targeting of journalists could be the tip of the iceberg.

Originally posted to Jesselyn Radack on Mon May 20, 2013 at 07:33 AM PDT.

Also republished by Whistleblowers Round Table.

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Comment Preferences

  •  We are standard bearer for free press worldwide, (11+ / 0-)

    and this behavior by the government undermines efforts in other countries to maintain their freedom. We can set a better example.

    "If the past sits in judgment on the present, the future will be lost." Winston Churchill

    by Kvetchnrelease on Mon May 20, 2013 at 07:45:14 AM PDT

  •  This is one iceberg that is not melting (15+ / 0-)

    The vast national security industrial complex is able to influence political weather conditions  so this iceberg keeps on growing.

    If cats could blog, they wouldn't

    by crystal eyes on Mon May 20, 2013 at 07:53:16 AM PDT

  •  One great point (17+ / 0-)

    "all experts agree that far too much information is deemed "classified." In FY 2011 alone, government agencies reported over 90 million decisions to classify information."

    •  Better safe than sorry (0+ / 0-)

      if you are the agent undercover or an asset. And I don't want the corporate media or baggers making those distinctions by what is politically advantageous.

      •  Really? (5+ / 0-)

        Can't have information get out because someone you don't agree with politically might get wind of it? I guess you don't care much to live in a free society.

        •  If it's possible for you to NOT think (0+ / 0-)

          like a partisan hack for a moment. Put yourself in the position of an Agent or an foreign asset [that are taking enormous risk, in case you've forgotten or don't care], the mere fact of proximity to classified info by people without clearance is chilling; ergo [a treat to our National Security]. We have a legal system for declassifying documents and leaking isn't it.”

          •  Put yourself in the position of a crooked (0+ / 0-)

            and/or incompetent official who wants to hide their wrong-doing from the general public. Nixon claimed the Watergate break-in, and the less touted break-in to the Mexican Embassy, and some of the data on bribes he received from Mafioso were all part of national security.

            You might have secret agents and strategies to protect, but you ain't got 90 million a year of them.


            Actual Democrats is the surest, quickest, route to More Democrats

            by Jim P on Mon May 20, 2013 at 06:30:32 PM PDT

            [ Parent ]

            •  Well you don't have to put yourself (0+ / 0-)

              in the position of someone that bears false witness with casual ease.

              •  In short, most of the "secrets" are CYA. (0+ / 0-)

                Got nothing to do with protecting the nation.


                Actual Democrats is the surest, quickest, route to More Democrats

                by Jim P on Mon May 20, 2013 at 07:40:33 PM PDT

                [ Parent ]

                •  I'll say it again (0+ / 0-)

                  We have a legal way to declassify documents for folks without clearance. Leaks have chilling effect on the intelligence community and negatively effect our ability to do counter-intelligence. If people stop talking to us because they might end up on the evening news; how do we make up for that lost intel? Should the POTUS blog post the PDB or just email it to journalist after the briefing?

                  •  The legal way to declassify documents (0+ / 0-)

                    can be, and has been, stymied very easily. Repeatedly. And how do you know which "secrets" to even try to declassify if they are "secrets."?

                    As to our ability to conduct the Eternal War on Everywhere All the Time.... besides the insanity of that (and I mean, quite literally, "insane") there's the concomitant destruction of our freedom. That's the context.


                    Actual Democrats is the surest, quickest, route to More Democrats

                    by Jim P on Tue May 21, 2013 at 10:48:15 AM PDT

                    [ Parent ]

                    •  None of you will answer the question (0+ / 0-)

                      How do we make up for the lost intel? And don't tell me it's the price of freedom. None of you are going to stand over a murdered loved one and proclaim that then take responsibility. It'll be: how did this happen? Why didn't we know? And it's all their fault. So the system isn't perfect, it is at least sane. Oh and I didn't know my home security system constituted an "Eternal War on Everywhere All the Time" I thought I was protecting my family.

    •  Official Secrets Act (6+ / 0-)

      The Official Secrets Act is not to protect secrets, it is to protect officials
                                 - Sir Humphrey Appleby

    •  Anything that might embarrass someone (2+ / 0-)
      Recommended by:
      Alexandre, Neuroptimalian

      can be classified to protect "national security". And "national security" can mean whatever some embarrassed official wants it to mean. I believe the classification system is being abused routinely.

      Which is bad enough, but when they start throwing the book at anyone who dares to peek behind their curtains, it's even worse.

  •  This should stick a knife in the "spin" (22+ / 0-)

    of indignance which goes on and on about how "leaking" is against the law and Those People Should Be Punished for Breaking It!!!!!!!11!!@!

       But what makes this revelation particularly disturbing is that the DOJ, in order to get this search warrant, insisted that not only Kim, but also Rosen - the journalist - committed serious crimes. The DOJ specifically argued that by encouraging his source to disclose classified information - something investigative journalists do every day - Rosen himself broke the law.

    ...
      In FY 2011 alone, government agencies reported over 90 million decisions to classify information. That's a lot of information that could potentially criminally implicate journalists. The Justice Department's directly accusing a journalist of breaking the law by encouraging a source to revealed allegedly "classified" information is even more nefarious considering that the biggest "leaker" of all is the U.S. government.

    "The “Left” is NOT divided on the need to oppose austerity and the Great Betrayal. The Third Way is not left or center or even right. It is Wall Street on the Potomac."--Bill Black

    by lunachickie on Mon May 20, 2013 at 08:02:25 AM PDT

    •  Not a chance, luna. IOKIYO. (13+ / 0-)

      And anyway, the AP scandal is a non-scandal because it's legal under the Patriot Act.

      What they did may not be legal, actually, depending on what kind of subpoena they used, but even if it is, since when do Kossacks defend actions based on Bush-era legislation?

      Here's an interesting blast from the past:  a diary from 2007 about Barack Obama's media policy. While it focused on media consolidation and the FCC rather than on government suppression, an op-ed then-Senator Obama wrote with John Kerry contains the following words:

      "The bedrock of America's greatest advances — the foundation of what we know today are defining values — was formed not by cheering on things as they were, but by taking them on and demanding change.

      The thoughtful exchange of diverse viewpoints not only helps guarantee our freedom as individuals, it ensures those in power can be held accountable for all that they do.

      But to engage in the debates that have always made America stronger, it takes a stage and a platform for discussion — and never before have
      these platforms been more endangered
      ."

      Do you suppose he still believes any of this?

      "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 09:16:02 AM PDT

      [ Parent ]

    •  or this? (10+ / 0-)

      Not that he was ever an angel on these matters, but he was a hell of a lot better as a Senator than he is now:

      Obama speech in 2006 on Patriot Act Reauthorization

      Horribly ironic; in this section Sen. Obama is arguing that the compromise reached is too weak on protecting civil liberties:

      "This compromise does modestly improve the PATRIOT Act by strengthening civil liberties protections without sacrificing the tools that law enforcement needs to keep us safe. In this compromise:

      We strengthened judicial review of both National Security Letters, the administrative subpoenas used by the FBI, and Section 215 orders, which can be used to obtain medical, financial and other personal records.

      We established hard time limits on sneak-and-peak searches and limits on roving wiretaps.

      We protected most libraries from being subject to National Security Letters.

      We preserved an individual's right to seek counsel and hire an attorney without fearing the FBI's wrath.

      And we allowed judicial review of the gag orders that accompany Section 215 searches.

      The compromise is far from perfect. I would have liked to see stronger judicial review of National Security Letters and shorter time limits on sneak and peak searches, among other things.

      "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 09:24:34 AM PDT

      [ Parent ]

  •  This degree of snooping may keep people from... (7+ / 0-)

    ...seeking education, health care, benefits, and some may even start birthing off the grid, at home, potentially adding known risks to their lives to prevent some future surveillance or predatory corporate use of their personal data. People may plan their movements around using certain roads or bridges or mass transportation, etc. as they become more dept at understanding the creation and sharing of personal data.

    •  Chilling. (2+ / 0-)
      Recommended by:
      howarddream, duhban

      Apparently that is the buzzword for this #SCAMdal.

      Leaking classified information is a crime.  It is against the law.  There are credible arguments that the government overclassifies documents/information.  I agree.  But it is not illegal or improper for the government to investigate crimes.

      Defenders of the freedom of the press, in my opinion, are making the wrong argument when they portray this as a scandal and/or call for DOJ firings.

    •  yes because (0+ / 0-)

      obviously the government lawfully investigating people leaking information deemed classified is grounds for being crazy

      Seriously? Can you even hear the argument you are making? Thank you for falling into the paranoid delusions of the tea party

      In the time that I have been given,
      I am what I am

      by duhban on Mon May 20, 2013 at 03:07:07 PM PDT

      [ Parent ]

      •  What argument do you think I'm making? (0+ / 0-)

        And precisely what is lawful investigation of people suspected of leaks today? Or, more apropos, of all the people working in buildings used by people who may be suspected of leaks?

        •  seriously? (0+ / 0-)

          when you sign a legally binding agreement on how to treat information deemed classified you don't get to just violate that because you feel like it

          Grow up please I am sick of this 'oh it's so unfair' no unfair is China montioring and even censoring the internet, unfair is risking your life to speak against the government in the USSR (and even to an extent now in Russia)

          Your arguments are an embarrassment to those having to struggle under actual government oppression. You really should be ashamed of yourself

          In the time that I have been given,
          I am what I am

          by duhban on Wed May 22, 2013 at 05:09:49 PM PDT

          [ Parent ]

  •  I want to rec your diary and can't (5+ / 0-)

    dailykos acts funny today. Just saying. I hope this gets a lot of eyes.

  •  Just to be sure we all understand (23+ / 0-)

    what's "new" here--quoted just as succinctly elsewhere:

    DOJ is now arguing that the news gathering process itself is a criminal act, and that the reporter may be an accomplice to the crime.
    This is Barack Obama's Justice Department! What. The. Fuck??????

    "The “Left” is NOT divided on the need to oppose austerity and the Great Betrayal. The Third Way is not left or center or even right. It is Wall Street on the Potomac."--Bill Black

    by lunachickie on Mon May 20, 2013 at 08:17:44 AM PDT

  •  It looks like journalists may have to adopt (16+ / 0-)

    techniques used by clandestine agencies. Dead drops, cutouts and face to face meetings in remote areas.

    "The human eye is a wonderful device. With a little effort, it can fail to see even the most glaring injustice." Richard K. Morgan

    by sceptical observer on Mon May 20, 2013 at 08:25:50 AM PDT

  •  Recapping Erin Burnett's interview earlier THIS... (20+ / 0-)

    ...MONTH with former FBI counterterrorism expert Tim Clemente...

    Prefacing this with what Kossack joanneleon's noted in her What’s Happenin’? series here on May 5th, the public continues to receive multiple, ongoing confirmations from knowledgeable/credible sources via the MSM and the blogosphere that virtually every phone call in the United States is recorded, nowadays. Again—for emphasis’ sake, if nothing else--the realities of these reports are now light years beyond the first time we’ve heard these facts stated in public; and, directly from folks with the necessary intelligence protocols that would enable them to be privy to this sort of info, too.  

    So, it was with many chuckles after reading Joanneleon's preface to a CNN interview story between Erin Burnett and FBI counterterrorism expert Tim Clemente that we heard this greater truth reiterated in public, once again…

    …I'm amused, in a gallows humor (or something, I don't even know what these feelings are anymore) at the way people are shocked to know that everything they say and do online or on a phone is being hoovered up and stored.  The "hair on fire" "conspiracy theorists" are not surprised at all because they've been, you know, paying attention to traitors whistleblowers and reading things other than cheerleader sites. Okay, so now that you know this, there's more to learn.  Go look at what's being hoovered up from other places and put into a counterterrorism center data base.  Check out the progress on surveillance cameras too.  Countdown for another dkos diary mocking those who see the march toward police state in three, two, one...  Just a buncha conspiracy theorists!  ZOMG, my president and my government would never lie to me.  ZOMG what are you worried about?  If you're not doing anything wrong, you've got nothing to worry about...
    And, then referencing this  THIS CNN interview (transcript) regarding recordings of phone calls pertinent to the ongoing investigation of the Boston Marathon bombers (the Tsarnaev brothers), as this inconvenient truth was noted by many in the blogosphere…
    Are all telephone calls recorded and accessible to the US government?
    A former FBI counterterrorism agent claims on CNN that this is the case

    On Wednesday night, Burnett interviewed Tim Clemente, a former FBI counterterrorism agent, about whether the FBI would be able to discover the contents of past telephone conversations between the two. He quite clearly insisted that they could:

    BURNETT: Tim, is there any way, obviously, there is a voice mail they can try to get the phone companies to give that up at this point. It's not a voice mail. It's just a conversation. There's no way they actually can find out what happened, right, unless she tells them?

    CLEMENTE: "No, there is a way. We certainly have ways in national security investigations to find out exactly what was said in that conversation. It's not necessarily something that the FBI is going to want to present in court, but it may help lead the investigation and/or lead to questioning of her. We certainly can find that out.

    BURNETT: "So they can actually get that? People are saying, look, that is incredible.

    CLEMENTE: "No, welcome to America. All of that stuff is being captured as we speak whether we know it or like it or not."

    So, based upon these now numerous, public confirmations by credible, former national security and law enforcement sources, let’s just be done with these niceties and make this basic statement: For all intents and purposes, it’s becoming common knowledge that all domestic phone calls in the United States are being recorded by the government.THIS is "the bigger story."

    "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

    by bobswern on Mon May 20, 2013 at 08:51:25 AM PDT

  •  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 ]

  •  This targeting of journalists by the DOJ (5+ / 0-)

    has to stop.  It's as if, had this administration been around in 1971, the New York Times reporters as well as Daniel Ellsburg would have been invesitgated for criminal prosecution.  

    This has to stop, and I believe it is time for Holder to resign.

    Keep the TVA public.

    by Paleo on Mon May 20, 2013 at 11:52:36 AM PDT

  •  A + B = cow! (1+ / 0-)
    Recommended by:
    duhban

    This paragraph in the diary doesn't make any sense:

    The message to journalists is clear. If the media publishes "classified" information that the government wants made public, those journalists receive increased access and can continue their work unfettered by invasive surveillance. But, if journalists write about government waste, fraud, abuse, mismanagement or illegality, they should be ready for harassment, surveillance, and criminal investigation.
    How is "Unauthorized Disclosure of National Defense Information" in any way related to "waste, fraud, abuse, mismanagement or illegality"?

    Furthermore, I completely don't understand why looking at State Department logs (entry and/or phone) is in any way controversial.

    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 12:10:27 PM PDT

    •  Actually, according to emptywheel (3+ / 0-)
      Recommended by:
      3goldens, skywriter, BradyB

      the AP got the go-ahead from the gov't which told them there were no more security issues, but to please hold off another 24 hours anyway, until the Administration broke the story the next day.

      AP said, no, we're not going to let you scoop us for no reason, since the public is in no danger.

      "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 12:59:31 PM PDT

      [ Parent ]

      •  were you replying to me? n/t (0+ / 0-)

        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 01:15:11 PM PDT

        [ Parent ]

        •  yes, b/c the issue in the AP scandal is that (1+ / 0-)
          Recommended by:
          3goldens

          I'm pretty sure there was no unauthorized disclosure of defense information. More like authorized disclosure that was timed in a way the Administration didn't like, and that included a revelation of a contradiction that for some reason got egg on their face, at least from their point of view.

          "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 01:18:22 PM PDT

          [ Parent ]

          •  I was talking about Kim/Rosen, not AP. n/t (0+ / 0-)

            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 01:25:53 PM PDT

            [ Parent ]

            •  OK, it's a bit confusing since all three (1+ / 0-)
              Recommended by:
              jam

              topics are part of the discussion.

              "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 01:29:24 PM PDT

              [ Parent ]

              •  ok, but back to my original (1+ / 0-)
                Recommended by:
                SouthernLiberalinMD

                The graf that I quoted follows directly from a discussion about Rosen. What would have made sense (to me) would have been:

                The message to journalists is clear. If the media publishes "classified" information that the government wants made public, those journalists receive increased access and can continue their work unfettered by invasive surveillance. But, if journalists write about government waste, fraud, abuse, mismanagement or illegality, information the government DOESN'T want made public they should be ready for harassment, surveillance, and criminal investigation.

                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 01:38:00 PM PDT

                [ Parent ]

                •  That looks fine to me. (2+ / 0-)
                  Recommended by:
                  3goldens, jam

                  Though of course in other circumstances the info might be gov't waste, fraud, whatever.

                  "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 01:46:20 PM PDT

                  [ Parent ]

                •  Those are facts. (0+ / 0-)

                  What didn't you understand about this?

                  The message to journalists is clear. If the media publishes "classified" information that the government wants made public, those journalists receive increased access and can continue their work unfettered by invasive surveillance. But, if journalists write about government waste, fraud, abuse, mismanagement or illegality, information the government DOESN'T want made public they should be ready for harassment, surveillance, and criminal investigation.
                  •  "Those are facts" (0+ / 0-)

                    Assuming facts not in evidence at least in this diary. Sorry, I'm just a poor engineer who likes his logic nice and simple. The facts of the Kim/Rosen case do not support the statement, IMO:

                    if journalists write about government waste, fraud, abuse, mismanagement or illegality,
                    I'm sure that there are thousands upon thousands of cases that do support that statement, but the one in the diary is not one of them.

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

                    Conservative "constitutional scholar" referring to SCOTUS

                    by jam on Tue May 21, 2013 at 05:53:38 AM PDT

                    [ Parent ]

  •  Journalists on Twitter (4+ / 0-)

    are practically losing it.  This is having a huge impact.


    "Justice is a commodity"

    by joanneleon on Mon May 20, 2013 at 12:49:21 PM PDT

  •  Odd (1+ / 0-)
    Recommended by:
    3goldens

    It's an odd coincidence that there is only one letter difference in the names of two of the journalists being targeted by DoJ.

    James Risen
    James Rosen


    "Justice is a commodity"

    by joanneleon on Mon May 20, 2013 at 12:53:36 PM PDT

  •  Since it wasn't included in the diary.... (1+ / 0-)
    Recommended by:
    3goldens

    "It strikes me as gruesome and comical that in our culture we have an expectation that a man can always solve his problems" - Kurt Vonnegut

    by jazzence on Mon May 20, 2013 at 02:02:23 PM PDT

  •  Could you clarify something Jessica? (2+ / 0-)
    Recommended by:
    3goldens, stellaluna
    Putting aside Kim's status as a whistleblower, his case is another "leak" investigation that the government used as the basis for spying on a journalist.
    So you're saying the administration is making up all these "leak investigations" simply to go after journalists they disagree with? Is this a correct assessment? That none of these investigations are warranted. And if that's the case, when do you believe it's warranted?

    "It strikes me as gruesome and comical that in our culture we have an expectation that a man can always solve his problems" - Kurt Vonnegut

    by jazzence on Mon May 20, 2013 at 02:14:34 PM PDT

  •  can you have a democracy without aggressive (1+ / 0-)
    Recommended by:
    Don midwest

    independent journalism?

    ...we've never had aggressive independent journalism?

    •  by this i mean (0+ / 0-)

      our media has basically always been lazy and incompetent and pretty much always coddled one side or the other, so the question is nonsensical?

      •  You do remember that the NY Times publishing (0+ / 0-)

        the Pentagon Papers helped end the Vietnam War, and that Woodward and Bernstein helped bring down Nixon, don't you? The media doesn't do that kind of thing today.

        The media only got this bad about two years into Reagan's presidency, when his popularity made the NY Times stop pointing out that many of the Reagan administrations ideas were crazy.

        This is not a bloodless process. — Barack Obama, at the launch of the Hamilton Project....

        by Alexandre on Mon May 20, 2013 at 04:14:34 PM PDT

        [ Parent ]

  •  Maybe the AP will write about and get people (1+ / 0-)
    Recommended by:
    jazzence

    Interested  in privacy issues and help get some laws passed to protect the privacy of all Americans. That's not likely. They are just mad they got treated like everyone else.

  •  All experts agree? (1+ / 0-)
    Recommended by:
    stellaluna

    Which exactly experts are we talking about?

    In the time that I have been given,
    I am what I am

    by duhban on Mon May 20, 2013 at 03:04:00 PM PDT

  •  I wonder if rec'ing an anti-warrantless diary (0+ / 0-)

    will trigger an NSA inspection event?

    new DoJ motto:

    E Pluibus Indicium
    This, to me, is the bitterest pill related to my former support of Obama.  I mean, at least he says the right things about Climate Change even if he only gestures at it.  But this shit, coupled as it is with the National Surveillance/Security State shit and Whistleblower Prosecution shit, is hard core, no-apologies totalitarianism.

    "Well, yeah, the Constitution is worth it if you succeed." - Nancy Pelosi // Question: "succeed" at what?

    by nailbender on Mon May 20, 2013 at 08:29:27 PM PDT

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