If former Vice Chairman of the Joint Chiefs of Staff James “Hoss” Cartwright actually gets indicted for leaking about the Stuxnet virus to David Sanger of the New York Times, I will be impressed. No one as high ranking has even been prosecuted for divulging classified information. If Private Bradley Manning is going to prison for a few decades, equal justice would require that James Cartwright should, too, provided that the charges are proven in court.
On the other hand, the 4th Circuit Court of Appeals ruling in the Jeffrey Sterling/James Risen case cannot be allowed to stand. If it does, no reporter will ever be able to guarantee anonymity a national security source again. For now, the ruling only governs the 4th District, but that includes Maryland and Virginia, and thus the NSA, CIA, and Pentagon. The two judges who voted against Mr. Risen were both originally nominated by a Democratic president, as was the dissenter.
Judge Roger Gregory, the third member of the panel, filed a vigorous dissent, portraying his colleagues’ decision as “sad” and a serious threat to investigative journalism.
“Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” he wrote. “The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society.”
It ought to be enough that the government can prosecute leakers if they can figure out on their own who they are.
The ruling was awkwardly timed for the Obama administration.
Attorney General Eric H. Holder Jr. has portrayed himself as trying to rebalance the department’s approach to leak investigations in response to the furor over its aggressive investigative tactics, like subpoenaing Associated Press reporters’ phone records and portraying a Fox News reporter as a criminal conspirator in order to obtain a warrant for his e-mails.
Last week, Mr. Holder announced new guidelines for leak investigations that significantly tightened the circumstances in which reporters’ records could be obtained. He also reiterated the Obama administration’s proposal to revive legislation to create a federal media shield law that in some cases would allow judges to quash subpoenas for reporters’ testimony, as many states have.
“It’s very disappointing that as we are making such good progress with the attorney general’s office and with Congress, in getting them to recognize the importance of a reporter’s privilege, the Fourth Circuit has taken such a big step backwards,” said Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press.
The fact that the Department of Justice is changing it’s policy in instructive. It teaches us why it is important that the First Amendment provide a constitutional privilege. Otherwise, the freedom of the press to collect classified information is malleable.
The fact that the Department of Justice is changing it’s policy in instructive.
Have you asked a lawyer whether this policy change actually changes anything?
Well I can tell you this: the Supreme Court has never held that the press has a privilege that excuses itself from testifying in criminal proceedings.
It is amazing the amount of writings on this case that are completely ignorant of the state of the law. See Branzburg v. Hayes, 408 U.S. 665 (1972).
If Private Bradley Manning is going to prison for a few decades, equal justice would require that James Cartwright should, too, provided that the charges are proven in court.
While the point that Cartwright should face consequences for his leak is a fine one, but there is a rather dramatic difference in degree between the two leaks. Manning releases, literally, hundreds of thousands of times more information than Cartwright.
Which was more damaging to US national security? Cartwright exposed the fact that it was the US and Israel that engaged in an act of war that had the roles been reversed would have put the US on nuclear alert.
Manning exposed embarrassing information about who exactly “American interests” refers to.
Cartwright aided Iran and the corporations that were concerned about cybersecurity after the StuxNet virus was reported.
Manning aided the public.
Manning was clearly more damaging to US National Security.
Our ability to interact with other government has been permanently damaged by his outing of so many discussions that only happened because of a promise of confidentiality.
While the Stuxnet virus revelations, as offensive as they might be to your morality and sense of fair play, haven’t produced any national security consequences that you can even name.
I have no definitive evidence of which was more damaging to national security because those analysis are Top Secret. And any leaks have been exploited politically.
What I see is that General officers generally escape real accountability. Resignations to to be with their families are always a courtesy afforded them. But enlisted-level military always are hit with harsh punishment for deliberately (Manning) or inadvertently (Lyndie England) exposing the misdeeds of the military. And the military seems to get a blank check when it comes to obedience or disobedience of international laws to which the US gives lip-service.
As for no national security consequences as a result of StuxNet, it seems logical that more countries are studying the code in StuxNet that they captured to understand the specific exploits the US is using, now knowing that the code might be state-of-the-art. What they learn might come back to bite our infrastructure systems.
It is not just a matter of morality and fair play. Cartwright’s exposure is like the declaration that went with the bombing of Hiroshima and Nagasaki. Then the US was the first to use nuclear weapons offensively. That made US calls for non-proliferation less credible. The fact that it was now known that the US carried out the first major destructive offensive cyberattack against a nation with which it was not in a declared state of war has damaged our credibility in calls for others to cease offensive cyberattacks.
Manning’s exposure of cables arguably led to the Arab Spring, the consequences of which have not be all contrary to US national security as it has allowed a different sort of Islamist politics to emerge.
I have an honest question. Are you ex-military?
I love this little game:
First Tarheel comes out with a definitive statement that Manning’s revelations were more damaging. Not a hint of qualification based on there not being enough information.
But then, when faced with an argument he can’t answer, he suddenly retreats behind “We can’t really say.” That’s funny, you had no problem really saying just a minute ago.
You see this same dodge in every discussion of secrecy. In reliable conspiracy-theorist tradition, the lack of evidence itself becomes proof that he’s right.
The fact that it was now known that the US carried out the first major destructive offensive cyberattack against a nation with which it was not in a declared state of war has damaged our credibility in calls for others to cease offensive cyberattacks.
It was already universally understood that the US was doing this. Cartwright’s confirmation was about as much of a shock as the Obama administration’s 2012 acknowledgment that we were using drones. In both cases, there had already been political debates and counter-measures going on based on that assumption for years before the administration figure confirmed what we already knew.
Manning’s exposure of cables arguably led to the Arab Spring, the consequences of which have not be all contrary to US national security as it has allowed a different sort of Islamist politics to emerge.
While it’s nice that all of the consequences of a million-document-dump have been detrimental to the US (although you keep arguing that the Libyan and Syrian Arab Springs consist of skeery al Qaeda Mooslems who are going to kill us all in our beds), that doesn’t really make the damage they have done moot.
Are you ex-military? No. Your paranoia has really gotten out of control over the past couple of years.
Not paranoia. Just trying to figure out the context of your aggressive defenses of the status quo in national security are coming from.
You keep using “reality-base community” as a weapon. Well I investigated what was going on with the Occupy movement. In fact I live-blogged general assemblies in multiple cities, focusing on those in the South from September 17, 2011 through January of 2012. I was curious about how the Walkupy movement that walked from New York to Atlanta and then from Atlanta to Chicago would fare in its conversations with folks in areas that are written off as irretrievable red counties.
And I decided to present a call at the Peoples Summit in Chicago to re-examination of all the national security institutions that were put in place in the Truman administration and seem to have vested interest in endless war.
I also decided to be a citizen journalist documenting what was happening in the coalition effort called Chicago Spring. And I found lodging with some very gracious Occupy Chicago folks.
I woke up with a gun in my face shortly after midnight on May 17, 2012. The gun was held by a CPD officer raiding the house for “terrorism’ charges. Those charges had been provoked by two CPD undercover officers. The trial of the three folks the CPD pretends they have evidence on is delayed until next year because the prosecution has played games with the delivery of discovery evidence.
The NATO Summit security operation was run out of the Chicago Region DHS Fusion Center.
Those are the realities, and they’ve been fairly well covered in the Chicago press and Chicago’s alternative weekly.
Those are the realities. Don’t try to dismiss them with accusations of paranoia.
Not paranoia. Just trying to figure out the context of your aggressive defenses of the status quo in national security are coming from.
First of all, I’m not just talking about that one question. You used to be one of the most interesting commenters on the site, but then you turned into Arthur G.
Second, don’t you understand how what you just wrote is profoundly paranoid, and profoundly distorted? You see a different position on this issue than your own, and you immediately categorize it as “aggressive defenses of the status quo,” sufficient to consider that I’m probably working for the state, man.
It’s sad what happened to you, and I sympathize, but you need to understand that your reaction to that event has serious degraded the quality of your thought, and left you irrational and paranoid.
I think both leaks were devastating, and only time will tell which was worse.
I presume the psychiatric opinion invoice is in the mail.
Maybe you need to get out more and see what is happening in this country outside the peaceful environs of Lowell. Your quiet liberal sanctuary is blinding you to some troubling realities. And just to get you ready for the culture shock, you might read or reread the Boston Globe’s James Carrroll, The House of War: The Pentagon and the Rise of American Power.
Did I mention that there was no warrant (the CPD supplied one retroactively) and that the folks in the neigboring apartment were held on the floor at gunpoint until the raid was over. I know that because even though they were unrelated to Occupy or the folks arrested the coincidence of them being one of my daughter’s friends passed that information back to me.
Have you seen an actual psychiatrist?
I remember the old Tarheel Dem. A sudden and dramatic change in personality and thinking after a traumatic event is something worth checking out.
BTW, calling Lowell, which voted for the Republican in the last two Senate election, a “liberal enclave” is pretty funny. Calling a place with a high poverty rate, gang problems, and massive immigration “quiet” just goes to show how inclined you are to believe whatever you want to believe, evidence be damned, at any given moment.
And just to get you ready for the culture shock
Spare me. I could probably deliver a better lecture on the topic than you. This notion that I don’t accept your silliness because I’m unaware is just you wanking to make yourself feel better.
You’ve sucked me into your bullshit personalization game. You win. Score one for Joe.
So what is your agenda. Since you seem to be so clear about mine.
What is your solution for how we get out of this mess. There hasn’t been a year since 1976 that I haven’t voted and haven’t voted a straight Democratic ticket. And it got me an extralegal gun in the face in a Democratic city in a Democratic state with a Democratic attorney general and a Democratic President. I’m not paranoid. I’m angry that my Constitutional rights were so violated and my property stolen and I was billed $300 for an emergency room visit that would not have been necessary had the CPD obeyed its own rules about medication for detainees. There were over 7000 arrests from Occupy and most of the folks in those arrests were extrajudicially punished as well–with too-tight zipcuffs, denial of bathroom access, denial of medication, confiscation of property, and no charges or minor charges on release. It didn’t matter which state or city, the only difference was in the severity of the attacks upon arrest.
I’m a good little loyal Democrat who has some serious questions about the competence and intentions of the Democratic Party. Pardon me for not STFU. But the frickin’ house is burning. Someone tell the owners.
Oh, did I suck into a “bullshit personalization game” by answering your question, ‘I have an honest question. Are you ex-military?’
You started the bullshit personalization game right there. I was talking about the scope of Manning’s leak vs. Cartwright’s, and you decided to impugn my credibility with a suggestive personal question.
And now, you big hypocrite, when it goes badly for you, you blame me.
I’m so sorry I answered the personal question you threw out to try to discredit me. That was very underhanded of me.
Two years ago, I would have loved to have a discussion with you about where to go from here. The old Tarheel Dem would have been an interesting person to talk about that with.
If you think that being in the military impugns your credibility, you did not understand why I was asking nor do you understand my views about the military.
Oh, is that why you followed it up with “I’m just trying to understand your defenses of the status quo” – because you totally meant it as a compliment.
Uh huh.
“I have an honest question. Are you ex-military?… Just trying to figure out the context of your aggressive defenses of the status quo in national security are coming from.”
But you meant that in the most respectful, complimentary manner.
When did you become this dishonest?
The First Amendment is not a privilege that the government can extend or withhold at will. It was asserted as a fundamental human right necessary to the preservation of self-government.
Secrecy corrodes the viability of self-government.
The Department of Justice memo about its policy seeks to establish an official accredited media who accreditation can be a means of control. Bloggers need not apply. And only accredited media are extended First Amendment protections. George III would be proud.
Secrecy corrodes the viability of self-government.
Yes, it does have that effect.
Yet at the same time, any government is going to need to operate some of its functions in secret in order to be effective. We can’t have live video feed from the helicopters going into Abbottobad. The City Council needs to be able to meet with the City Manager about ongoing contract negotiations without their strategy discussion being published in the local paper for the people on the other side of the table to read.
Both of these observations are true, and they will inevitably produce conflict. This is one of those problems that will never go away, and can only be managed through a continual process of negotiating the competing imperatives.
So while it’s important to articulate the anti-secrecy side of the equation and keep up the pressure on that side, it’s also necessary to realize that the people we’ve charged with actually running a government can’t just take up one cause and ignore the other.
What I have seen is that secrecy has become a escape from political accountability. The public deserves to see how their politicians cut deals exposed and in the open. And greater secrecy has tended to result in greater corruption in contracts. In greater capitulation to developers in subdivision and zoning cases. And in enrichment of the well-to-do who can afford agents for those negotiations as compared to ordinary folks who cannot.
In my estimation, we are well toward 75%-80% being in a totally locked down secret corporate state. From confidentiality agreements as conditions of employment to more and more areas being gated and badged and controlled entry to the growth of secret places, secret personnel, secret budgets, secret laws, secret court decisions.
And the use of news management by leaks and cozy media arrangements of access extortion make it more and more difficult for the reality-based community to find out what that reality is. Even as more people are working longer hours and cannot afford the additional time to research things out.
What I have seen is that secrecy has become a escape from political accountability. The public deserves to see how their politicians cut deals exposed and in the open. And greater secrecy has tended to result in greater corruption in contracts. In greater capitulation to developers in subdivision and zoning cases. And in enrichment of the well-to-do who can afford agents for those negotiations as compared to ordinary folks who cannot.
That type of secrecy has actually been in decline over the past few years. This is the sort of thing Obama was talking about when he discussed transparent government during the 2008 campaign, and a lot of steps have been taken to open up the back-room dealing to greater public scrutiny.
You seem to be smooshing together that aspect of secrecy with national-security secrecy, which is still as entrenched as ever. They are two different questions, though, and its worthwhile to think of them as such.
I really don’t get this at all. Why shouldn’t he be required to testify. He has direct knowledge of a criminal act? I don’t understand why he should expect to keep that information confidential. If a rapist gave a reporter a video of himself, masked while raping a woman, for an article on violence against women, would that reporter be allowed to withhold the name of the rapist? What about photographs of stolen property for an article about fencing? How is this any different?
What wrongdoing, what corruption by the government did revealing (leaking) information about the Stuxnet virus disclose? None that I can see. The privilege is intended to protect reporters that leak information which discloses wrongful conduct or corruption by the government, e.g., the Pentagon Papers. So why should the privilege apply to this reporter?
By that argument, why should the Gen. Cartwright who leaked it not be prosecuted as much for the leak as the reporter for publishing it?
The privilege the reporter holds is that of the First Amendment, which unlike the Second is absolute in its formulation of no law.
What was exposed was US aggression against a country with which we were and are not at war. That is wrongful conduct under a number of international laws and likely is an abuse of the President’s role as commander in chief. Also it is foolish in that the most cybervulnerable country on the planet, one made more vulnerable because of NSA/FBI requirements for backdoors into computer networks, should not be conducting aggressive offensive cyberwarfare first.
I would hope that Congress will clarify whether it was indeed the President who ordered this attack and explain how much understanding of the implications the President had when he made that decision. It amounts to internet gunboat diplomacy.
It seems that the aggressive Obama policy on leaks started with former Director of National Intelligence Dennis Blair, according to a NYT article (can’t link; behind paywall but it should be easy to find):
Might Gen. Cartwright stand in for that admiral?