[Paleopsych] Atlas Sphere: Indict the New York Times

Fri Jan 13 01:49:27 UTC 2006

Frank,
Regarding the question of spying on ourselves: Let me provide a 
counter-intuitive argument, only partly tongue in cheek. Perhaps the 
left-wing fear that government spies on us is actually salutory. It 
encourages us to reflect on the current confirmation hearings for Alito: 
Everything you have ever said will someday be scrutinized. So live life 
with that clear understanding.

Privacy is over-rated as a freedom. Knowledge about others is 
interesting. (I love gossip!) It is the contraints on behavior that we 
cannot tolerate. Recall that  SCOTUS invented a right to privacy so 
people in Connecticut could buy birth control Privacy was not the real 
issue. The issue was that govenment was trying to control things it 
shouldn't. To get a decision, the Supremes had to invent a new right.

In the early 1970s, my father was puzzled about people objecting to 
Nixon's wiretaps. "Why does anyone object?" he asked. "You shouldn't 
oughta be sayin' things on the telephone that you are ashamed of 
anyway." Dad lived his life with that notion, that he had nothing to 
hide. It is a wonderfully freeing life.

I think things like Holzer proposes are actually good for democracy, 
since it helps the democracy have an open dialog about important issues 
including the role of secrecy vs. openness. As David Horowitz says, 
dialog between disparate entities invigorates democracy. Such a 
prosecution would be exciting to watch.
Lynn

Lynn D. Johnson, Ph.D.
Solutions Consulting Group
166 East 5900 South, Ste. B-108
Salt Lake City, UT 84107

Tel: (801) 261-1412; Fax: (801) 288-2269

Check out our webpage: www.solution-consulting.com

Feeling upset? Order Get On The Peace Train, my new solution-oriented book on negative emotions.

Premise Checker wrote:

> Indict the New York Times
> http://www.theatlasphere.com/columns/printer_050111-holzer-indict-nytimes.php 
>
>
> [Go ahead and critique, folks. I'll send out your thoughts, unless you 
> specifically ask me not to. It's not clear to me how our "national 
> security" was compromised. Aren't the citizens part of this "nation," 
> and didn't Amendment IV speak of the "right of the people to be SECURE 
> in their persons, houses, papers, and effects, against unreasonable 
> searches and seizures"? Or does the "nation's" security extend only to 
> our rulers?
>
> [So it is unclear whether the Espionage Act violates the Bill of 
> Rights, even if past Supreme Courts have allowed certain somewhat 
> similar powers. And did Congress intend the Bush administration to do 
> what it did? Or is the intention of Congress something the Executive 
> Branch can determine for itself at will? Is the United States a nation 
> of laws (Congress) or of Presidential decrees? It is also unclear to 
> me whether the Bush administration violated the laws governing the NSA.
>
> [Share with me your other objections. Basically, domestic spying is 
> open to serious abuses and it must be checked. I have not been 
> following the details and so don't know just how various members of 
> Congress have
> reacted, but it's had not been one of ringing endorsement.
>
> [Mr. Jefferson said if he had to choose between newspapers and no 
> government or government and no newspapers, he would unhesitatingly 
> choose the latter.
>
> [I don't know what restrictions on the press I would allow in the 
> unlikely event that the United States got into a war justifiably. Help!]
>
> [And just how did Hanoi Jane jeopardize our national security? Did it 
> mean that North Vietnam was more likely to invade the United States? 
> She was hardly the only critic of our foreign policy.]
>
> Opinion Editorial
> Indict the New York Times
> By Henry Mark Holzer
> Jan 10, 2006
>
> It is an article of faith on the Left and among its fellow
> travelers that the Bush administration stole two elections, made
> war on Iraq for venal reasons, tortured hapless foreigners, and
> conducted illegal surveillance of innocent Americans.
>
> A corollary of this mindset is that the press, primarily the
> Washington Post and The New York Times, has a right, indeed a duty,
> to print whatever they want about the administration even if the
> information compromises national security.
>
> Not true. The press is not exempt from laws that apply to everyone
> else. The press is not exempt from laws protecting our national
> security. The New York Times is not exempt from the Espionage Act,
> as we shall see in a moment.
>
> But first, its necessary to understand what an indictment of the
> Times does not involve.
>
> First, an Espionage Act indictment of The New York Times would not
> even remotely constitute an attack on a free press. As Justice
> White wrote in Branzburg v. Hayes, [i]t would be frivolous to
> assert ... that the First Amendment, in the interest of securing
> news or otherwise, confers a license on either the reporter or his
> news sources to violate valid criminal laws.
>
> Nor would an indictment of the Times constitute an attempt to
> restrain it from publishing news. The anti-anti-terrorists who seek
> to justify the Times revealing the NSAs domestic surveillance
> program and thus prevent their flagship paper from being indicted,
> rely on a Supreme Court decision entitled New York Times Company v.
> United States, better known as the Pentagon Papers Case. Their
> reliance is misplaced.
>
> In 1971 a disgruntled anti-war activist delivered a classified
> study History of U.S. Decision-Making Process on Viet Nam Policy to
> The New York Times and the Washington Post. The government sued to
> enjoin publication seeking to impose a prior restraint.
>
> If there are any fundamental principles in modern First Amendment
> law, one is that the burden on government to restrain publication
> (as compared, for example, with later punishing its publication) is
> extremely heavy. Accordingly, in a 6-3 decision, the Court ruled
> for the newspapers, and the publication of the embarrassing
> Pentagon Papers went ahead.
>
> Thus, New York Times Company v. United States, where the Court
> rejected a government-sought prior restraint on publication, would
> have no precedential value in a case where, after publication, the
> government sought to punish the Times for violating the Espionage
> Act.
>
> Third, not only was there no legal impediment to the NSAs domestic
> surveillance program, there was abundant authority for it. The
> President possesses broad powers as chief executive and Commander
> in Chief under Article II of the Constitution. Congress has
> repeatedly delegated to all presidents considerable war-related
> powers, and especially post-9/11 to President Bush.
>
> It was Congress that created and empowered the National Security
> Agency. The Executive Branchs NSA domestic surveillance program,
> aimed at obtaining intelligence about the foreign-based terrorist
> war on the United States, was/is an integral element of our
> national security policy and its implementation. No Supreme Court
> decision has ever held that the
> Presidential/Congressionally-sanctioned acquisition of that kind of
> intelligence was constitutionally or otherwise prohibited.
>
> Accordingly, it is pointless to consider whether the NSAs domestic
> surveillance program was legal. It was! If a case involving that
> program ever reaches the Supreme Court, thats what its ruling will
> be.
>
> Fourth, the interesting history of the Espionage Act is irrelevant
> to whether the Times may have violated it.
>
> Finally, it is a waste of time to consider whether the Act is
> constitutional. It has been expressly and impliedly held
> constitutional more than once.
>
> This brings us to whether The New York Times is indictable (and
> ultimately convictable) for violating the Espionage Act.
>
> The facts are clear. The NSA was engaged in highly classified
> warrantless wiretaps of domestic subjects in connection with the
> War on Terror, and the Times, a private newspaper, made that
> information public.
>
> It is to those facts that the Espionage Act either applies, or does
> not apply.
>
> Title 18, Section 793 of the United States Code, provides that (e)
> Whoever having unauthorized possession of ... any document ... or
> information relating to the national defense which information the
> possessor has reason to believe could be used to the injury of the
> United States or to the advantage of any foreign nation, willfully
> communicates ... the same to any person not entitled to receive it
> ... (f) ... [s]hall be fined under this title or imprisoned not
> more than ten years, or both. (g) If two or more persons conspire
> to violate any of the foregoing provisions of this section, and one
> or more of such persons do any act to effect the object of the
> conspiracy, each of the parties to such conspiracy shall be subject
> to the punishment provided for the offense which is the object of
> such conspiracy. (Section 794 is inapplicable. It deals with
> gathering or delivering defense information to aid [a] foreign
> government.)
>
> It is, said the United States Court of Appeals for the Fourth
> Circuit in assessing Section 793 (e) in United States v. Morison,
> difficult to conceive of any language more definite and clear.
> Lets break down the statute into its component parts.
>
> Whoever: this would mean the New York Times company, publisher
> Arthur Sulzberger, Jr., editor Bill Keller, and anyone else privy
> to the information upon which the story was based.
>
> Having unauthorized possession: the information was classified, and
> the Times was not authorized to have it.
>
> Of any document ... or information: certainly the Times had
> information, because it published it; it is inconceivable that the
> newspaper did not have documents of some kind, because the
> newspaper would never have gone that far out on a limb without at
> least some corroboration beyond an oral report(s).
>
> Relating to the national defense: no comment is necessary; indeed,
> the Times has conceded that targets of the warrantless wiretaps
> were persons who may have had some connection to terrorists.
>
> Which information the possessor has reason to believe could be used
> to the injury of the United States or to the advantage of any
> foreign nation: obviously the Times had reason to believe, because
> it withheld the story for a year.
>
> Willfully communicates ... the same: no comment is necessary; the
> story was front-page news.
>
> To any person not entitled to receive it: even the Times cant argue
> that subway straphangers, or any other member of the public, was
> entitled to receive information about the classified operations
> about one of this countrys most secret and highly protected
> agencies.
>
> Several years ago Erika Holzer and I wrote a book entitled [1]Aid
> and Comfort: Jane Fonda in North Vietnam, which proved that her
> conduct in Hanoi made her indictable for, and convictable of,
> treason. We discovered that she was not indicted because of a
> political failure of will by the Nixon administration.
>
> To summarize a chapter of our book, suffice to say that the
> government was afraid to indict a popular anti-war actress who had
> the support of the radical left. Even today, three decades after
> Fondas trip to North Vietnam and three years after the publication
> of our book, we receive countless letters lamenting that Hanoi Jane
> was never punished for her conduct.
>
> We tell them that its too late, that any possibility of seeing
> justice done for Fondas traitorous conduct is long gone. That is
> all the more reason why those of us who remember the Fonda episode,
> and who understand the nature and importance of todays War on
> Terror, should not rest until the government calls to account The
> New York Times in a court of law, with an indictment and hopefully
> a conviction, under the Espionage Act.
>
> [2]Henry Mark Holzer is a professor emeritus at Brooklyn Law School
> and a constitutional and appellate lawyer. He provided legal
> representation to Ayn Rand on a variety of matters in the 1960s.
> His latest book, Keeper of the Flame: The Supreme Court
> Jurisprudence of Justice Clarence Thomas, will be published later
> this year.
> © Copyright 2004-5 by The Atlasphere LLC
>
> References
>
> 1. 
> http://www.amazon.com/exec/obidos/redirect?link_code=ur2&tag=theatlasphere-20&camp=1789&creative=9325&path=http%3A%2F%2Fwww.amazon.com%2Fgp%2Fproduct%2F078641247X 
>
> 2. http://www.theatlasphere.com/directory/profile.php?id=12095
>
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