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Justice Department and Prosecution of Glenn Greenwald

newsman

Marcy Wheeler finds this buried deep in a WaPo report on an interview it conducted with Attorney General Eric Holder:

“Unless information that has not come to my attention is presented to me, what I have indicated in my testimony before Congress is that any journalist who’s engaged in true journalistic activities is not going to be prosecuted by this Justice Department,” Holder said.

“I certainly don’t agree with what [Glenn] Greenwald has done,” Holder said. “In some ways, he blurs the line between advocate and journalist. But on the basis of what I know now, I’m not sure there is a basis for prosecution of Greenwald.” [emphases Wheeler's]

Not unreasonably, Wheeler, who like myself engages in advocacy journalism, is taken aback:

In this passage, which is admittedly not a transcript, Holder seems to distinguish between “true journalistic activities” and “advocate.”

If that is, in fact, fair syntax, then it suggests something troubling. Not just that Holder remains open to be persuaded that journalist Glenn Greenwald might be prosecutable. But that the “line” is drawn where “journalism” turns to “advocacy.”

Damn. I hope he tells our founding fathers, because it sounds like he might well have prosecuted a sizable chunk of those advocate journalists.

A more charitable—and given the lack of  DoJ prosecutions of other advocacy journalists under Holder’s tenure, seemingly more accurate—-reading of the passage is that Holder is guilty of nothing more than a non sequitur in oral presentation. That is, “blur[ring] the line between advocate and journalist” is no more tied in Holder’s mind to “basis for prosecution” than “agree with what Greenwald is done.” Holder is both assuring the public that he opposes reporters working with criminals to release government secrets to the public, expressing the opinion that Greenwald is on the fringes of whatever constitutes “true journalism” in Holder’s mind, and yet saying that he has no evidence that Greenwald committed any actual crime. It’s the commission of crime—not likability or quality journalism—that is the basis for prosecution.

Additionally, because I’ve had much the same struggle as Holder in contextualizing the Greenwald-Snowden affair, I think Holder probably meant “activist” rather than “advocate.”

Greenwald has long engaged in advocacy on this issue. He’s been one of the most vocal and eloquent supporters of Julian Assange and the individual formerly known as PFC Bradley Manning. While I disagree with Greenwald’s position that bringing transparency to US Government secrets, through criminal activity if necessary, is in the public interest, it would be outrageous, indeed, if the DoJ were investigating the possibility of criminal prosecution for touting that view.

But in the Snowden affair, Greenwald seems to have gone well beyond journalism and advocacy; he was an active participant in the plot to illegally disseminate government secrets and was the primary vehicle for making them public.* I don’t have the slightest problem with Holder and company doing their due diligence in investigating whether Greenwald, his partner David Miranda, and others who directly helped Snowden violated the law. That sort of scrutiny comes with participation in a criminal conspiracy.

Holder and his team have apparently come to the same conclusion that I have: that, while potentially harmful to US national security interests, Greenwald’s actions were legal. While there have been many prosecutions under the Espionage Act over the years, they’ve been restricted since World War I to those people—government employees and contractors—who had a duty to protect classified information. Greenwald has no such duty.

Correction: The original version of the sentence read “an active participant in the plot to steal government secrets and was the primary vehicle for making them public.” This implies something that is neither true nor what I believe: that Greenwald was involved prior to Snowden’s decision to steal the documents. My point is merely that, as Greenwald himself acknowledges, he and Snowden actively collaborated not only on the means of transmission of the stolen documents but also on how they would be presented to the public. Snowden wasn’t a Bradley Manning, interested simply in dumping documents; he needed a collaborator to maximize the impact of the release.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. OzarkHillbilly says:

    While there have been many prosecutions under the Espionage Act over the years but they’ve been restricted since World War I to those people—government employees and contractors—who had a duty to protect classified information. Greenwald has no such duty.

    Honest question: At what point does one cross the line from honest advocate/activist to actual spying? Or is that line only crossed when one shares such information with a foreign gov’t? I know there is a fine balancing act at play here but I am having a hard time seeing how one threads the needle when there is such a fog of apparent obfuscation (from both sides) that I can’t even see the #@*^# needle.

    Like or Dislike: Thumb up 8 Thumb down 2

  2. James Joyner says:

    @OzarkHillbilly:

    At what point does one cross the line from honest advocate/activist to actual spying?

    Historically, it’s when you work with a foreign government. But that’s really not necessary in today’s age; putting the information on the Internet effectively transfers it to the enemy.

    Like or Dislike: Thumb up 5 Thumb down 6

  3. OzarkHillbilly says:

    @James Joyner: Exactly. So where is the line? Does it even exist anymore? How is it Snowden is under indictment but his “partner in crime” is not? Is the title “journalist” a “get out of jail free” card? I know you don’t have any answers but sooner or later we as a country are going to have to answer them.

    Right now Eric Holder is damned if he does and damned if he doesn’t. So will be the next AG.

    Like or Dislike: Thumb up 8 Thumb down 5

  4. James Joyner says:

    @OzarkHillbilly: Going hard against Manning and Snowden presumably makes others less likely to follow suit. Still, it’s a problem.

    The Pentagon Papers case was different. There, the NYT and WaPo willingly published a classified document, albeit arguably one that shouldn’t have been classified. But they didn’t actively solicit the document; it was handed to them. Moreover, it was one selected report that Ellsburg specifically thought deserved attention.

    In the Manning and Snowden cases, it’s simply a massive data dump by people trying to undermine our very program of classification. It’s a whole different ballgame and one without historical precedent. Prior to the Internet age, this sort of thing simply wasn’t possible.

    Like or Dislike: Thumb up 7 Thumb down 7

  5. Ben says:

    But in the Snowden affair, Greenwald seems to have gone well beyond journalism and advocacy; he was an active participant in the plot to steal government secrets and was the primary vehicle for making them public.

    I think that you’ve now meandered into “making shit up” territory, James. I’ve never heard anyone put forth any evidence that Greenwald was involved in the theft of the documents. If I’m not mistaken, GG has always maintained that Snowden was already in the possession of the documents before he contacted him about publication.

    Like or Dislike: Thumb up 12 Thumb down 3

  6. James Joyner says:

    @Ben: I don’t claim Greenwald stole the documents but that he was an active participant in the plot to release them to the public.

    Like or Dislike: Thumb up 5 Thumb down 11

  7. fred says:

    He and Snowden have damaged our national security and must receive the full blunt of US justice. No question. Freedom and free speech also entail personal responsibility and consideration of the nation’s security.

    Hot debate. What do you think? Thumb up 7 Thumb down 17

  8. Ben says:

    @James Joyner: But that’s not what you accused him of. You said he was an active participant in a plot to steal the secrets. They were already stolen when he first became involved. He was only involved in their publication.

    Like or Dislike: Thumb up 13 Thumb down 3

  9. HarvardLaw92 says:

    @Ben: Which is immaterial. 18 USC 798(a) is in no way unclear or vague.

    The act criminalizes the action, in and of itself, of publishing delineated classified material, regardless of provenance. It does not matter how Greenwald obtained the documents. His decision to publish them constitutes a criminal act independent of any actions undertaken by Snowden.

    The fact that Greenwald has not been prosecuted does not, in the least, decriminalize or legitimize his actions. It simply acknowledges the political reality that prosecuting journalists for publishing classified information is politically unpopular.

    Like or Dislike: Thumb up 11 Thumb down 8

  10. Ben says:

    @HarvardLaw92:

    You seem quite sure, but that’s funny, because even Holder seems to doubt that there is “a basis for prosecution of Greenwald”

    Like or Dislike: Thumb up 9 Thumb down 6

  11. Jack says:

    The government is collecting so much information on American citizens which they then classify so Americans don’t find out and the government doesn’t become embarrassed. The government is the one’s breaking the law, not journalists or “supposed journalists”.

    Like or Dislike: Thumb up 15 Thumb down 3

  12. KT says:

    Aside from the fact that the 1st Amendment,

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

    , has established there can be no restrictions to freedom of the press, the government not only OVER-classifies documents in order to carry on secret operations, it has acted outside of its Constitutional bounds and its members have violated their oaths to the Constitution.

    You cannot achieve justice by not prosecuting the criminals and instead prosecuting those who act in good conscience with respect for the Constitution, the Law of the Land.

    Like or Dislike: Thumb up 7 Thumb down 4

  13. KT says:

    @Jack: May I suggest there is no such thing as a supposed journalist. The beauty of the internet is that it has generated a renaissance of citizen journalism that is protected by the 1st Amendment. If you don’t agree with that new journalism, there are legal, Constitutional means to repealing the amendment and its protections.

    I doubt anyone who loves freedom will desire that event.

    Like or Dislike: Thumb up 8 Thumb down 3

  14. Pedinska says:

    @fred:

    Freedom and free speech also entail personal responsibility and consideration of the nation’s security.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[1]

    Please tell me where they inserted that bit about “personal responsibility”. Because I think the meaning is actually quite plain.

    Like or Dislike: Thumb up 8 Thumb down 1

  15. -Mona- says:

    @HarvardLaw92:

    The fact that Greenwald has not been prosecuted does not, in the least, decriminalize or legitimize his actions. It simply acknowledges the political reality that prosecuting journalists for publishing classified information is politically unpopular.

    The Pentagon Papers case leaves open the possibility of prosecuting journalists for publishing classified material — something journalists regularly do, including when leaked by the government for its own ends. This is, indeed, an untested and unlitigated area of law. The lack of such prosecutions have been a matter of Executive prudence. Hence Greenwald’s legal limbo.

    But consider what we would not have absent these revelations. The Patriot Act Section 215 metadata dragnet is now in litigation in several federal venues, perhaps most notably by the ACLU which is a customer of Verizion Business; the previously dispositive standing issue is almost certainly resolved b/c with the publication of Snowden’s copy of the FISA Court’s Section 215 Order to Verizon, all Verizon Business customers have standing to sue b/c they have certainly been subject to the dragnet (as ordered by the FISA Court).

    Therefore, the citizenry now has the opportunity to see whether the government’s reliance on the pre-digital age Pen Register case — Smith v. Maryland — is going to be overturned or reined in, and the 4th Amendment upheld. (Justice Sotomayor signaled in the Jones GPS case that she thinks it is time for a revisitation of Smith, and now the question is squarely in litigation.)

    But for Snowden and Greenwald, the dragnet would be continuing in secret, with no possibility of testing it in court. That fact alone demonstrates that publishing classified information of vital interest to the public, i.e., journalism, merits First Amendment protection in an open and robust democracy.

    Like or Dislike: Thumb up 13 Thumb down 3

  16. -Mona- says:

    @fred:

    I’m curious. Do you also advocate that Barton Gellman and other reporters at the Washington Post, and Scott Shane and other reporters at the New York Times, should also all be prosecuted for publishing Snowden/NSA documents? Their editors as well?

    Or just Greenwald?

    Like or Dislike: Thumb up 10 Thumb down 3

  17. ScuzzaMan says:

    @James Joyner:

    “plot to release them to the public” being a description of every act of journalism, ever.

    In my younger days, I’d have thought that a journalist would be wary of encouraging his government (which already murders people for no legitimate reason or purpose) to persecute journalists, but the short-sightedness of the average human being no longer surprises me.

    It still, however, dismays.

    Like or Dislike: Thumb up 11 Thumb down 0

  18. ScuzzaMan says:

    @-Mona-:

    … and far more pertinently, the “anonymous officials” in the White House, the Pentagon, the CIA, who have leaked state secrets to them constantly for years?

    (I mean, if Snowden is definitely a criminal and Greenwald migh tbe, then by the same token these anonymous officials are definitely criminals, but the NYT only might be … )

    For an administration officially concerned about keeping secrets, this one leaks like a collander, but has not made the same efforts to prosecute these crimes that it applies to whistleblowers and journalists.

    “wherefore by their fruits shall ye know them”

    Like or Dislike: Thumb up 4 Thumb down 0

  19. Tillman says:

    @-Mona-: None of these consequences makes it any less of a crime. It makes it less likely anyone will be prosecuted for it. There is a difference between the two.

    Like or Dislike: Thumb up 2 Thumb down 2

  20. HarvardLaw92 says:

    @Ben:

    I am absolutely sure. As I said, the section is not vague. The fact that nobody is being prosecuted for violating it doesn’t make it any less illegal.

    A corollary would be the cop who decides not to cite you for speeding. You without question violated the law – you just avoided prosecution, and those are not remotely the same thing.

    Like or Dislike: Thumb up 5 Thumb down 2

  21. HarvardLaw92 says:

    @-Mona-:

    That fact alone demonstrates that publishing classified information of vital interest to the public, i.e., journalism, merits First Amendment protection in an open and robust democracy.

    But who gets to make that magical determination of what is of vital interest and what needs to remain secret?

    Left to their own devices, journalists could (and in my opinion regularly do) rationalize printing anything and everything they can get their hands on. A state indeed can not function with a total cloak of secrecy over its actions, but it equally can not function without the ability to protect the secrets that legitimately need to be protected.

    My own sense of disgust at what I see as Greenwald’s bombast and relentless self-promotion aside, he is not qualified to make that determination. We have national security laws for a reason, and the fact that you may be made uncomfortable by them does not mean that they need to be done away with.

    Because you can not unring a bell. Once people know a secret, they know it.

    Like or Dislike: Thumb up 6 Thumb down 3

  22. HarvardLaw92 says:

    @-Mona-:

    The Pentagon Papers case leaves open the possibility of prosecuting journalists for publishing classified material

    Just as an aside – 5 of the 9 justices in New York Times Co. v. United States indicated that had the AG chosen to pursue criminal prosecution against the newspapers involved instead of seeking prior restraint, they would have voted to uphold a conviction.

    It is untested because it is politically unpopular, and politicians first and foremost are interested in getting reelected. Again, that does not touch on the illegality of the act itself. An act is either illegal or it isn’t, and as I have stated, 18 USC 798(a) is not unclear. You just don’t like what it says.

    Speaking as a former AUSA, were it up to me they would all be prosecuted, because – and this is important – they have violated the law. Laws honored more in the breach than in the observance are effectively no laws at all, and I’m not prepared to leave national security up to the whims of the public.

    Like or Dislike: Thumb up 7 Thumb down 1

  23. -Mona- says:

    @HarvardLaw92:

    Speaking as a former AUSA, were it up to me they would all be prosecuted,

    All? Including Barton Gellman and the other Washington Post reporters on the NSA/Snowden document stories, plus their editors? And Scott Shane and the other NYT reporters on the NSA document stories, plus the NYT editors?

    As you are of a former US Attorney, I am not surprised that you are eager to enforce a vile, authoritarian law such as the Espionage Act, a by-product of the repressive WWI-era attacks on speech. That you are especially eager to apply it to journalists is a breathtakingly authoritarian position.

    Because of the Pentagon Papers, the American citizenry learned the depth and extent of its government’s lies about a bloodbath in Southeast Asia. Thanks to Snowden and some brave journalists, the ACLU and others are positioned to challenge the Global Surveillance State the NSA, with its Western partners, is erecting.

    Secrecy in a democracy should be the very, very rare exception. An informed citizenry – - and informed representatives — is the sine qua non of democracy. Because the NSA’s secrecy has been responsibly and selectively pierced, citizens of the U.S. — and, indeed, of the world, — are able to debate the issue of ubiquitous electronic surveillance, and pass reforms as the world’s citizens see fit.

    Finally, you stand on the rule of law. I stand on the Supreme Law of the land, in this instance that part set forth in the First Amendment. We undoubtedly disagree on what that amendment should prohibit the government from doing to its citizens, including journalists.

    Like or Dislike: Thumb up 5 Thumb down 6

  24. -Mona- says:

    @HarvardLaw92:

    You are absolutely sure? I commend to you this legal analysis from the Congressional Research Services. The law is not as clear as you would suggest, and in fact whether journalists may constitutionally be criminally sanctioned for publishing classified information of value to the public remains an open question.

    For a quick take see the Conclusion on p. 31 of this pdf document: http://www.fas.org/sgp/crs/secrecy/R41404.pdf

    Like or Dislike: Thumb up 4 Thumb down 5

  25. HarvardLaw92 says:

    @-Mona-:

    Yes, I am absolutely sure. The 1st Amendment functions as a limitation on prior restraint, not as a bar to prosecution from the consequences of exercising speech. It is not a “you can say whatever you like free from consequence” proposition. It is instead a “you can say whatever you like with the expectation that the government – absent a very strong rationale for doing so – will not try to prevent you from doing so. However, you risk the consequences post actum if your speech violates the law.”

    For example, the government will not especially try to stop you from inciting a riot, but you can absolutely be prosecuted if you do incite one. The 1st Amendment is not a get out of jail free card.

    Elsea is drawing a flawed conclusion – namely “because there have been no prosecutions for publishing classified information, it is a protected activity.” What she should have said is “because there have been no prosecutions for publishing classified information, the question of whether the 1st Amendment prohibition against prior restraint serves as an absolute bar to limitations on whether the press may be punished for revealing state secrets remains unanswered, and the press should therefore proceed with caution – and be prepared to defend its decision in court – when weighing the question of whether to proceed.”

    The closest guidance we have in this regard, again, is the expressed opinion of 5 justices that had such a guilty verdict come before them, they would have voted to uphold it. The court has not been presented with the issue since then, again primarily in my opinion because the matter is such a political minefield. It is politically unpopular to field the idea of prosecuting journalists, as the disapproval nods on here attest to, but that doesn’t change the law.

    Sotomayor, while I respect her, would not be the deciding vote on this issue. Kennedy would be, and between him being old enough to remember World War II in the immediate and his having served in the military, I’d feel comfortable predicting where he would lean on national security issues. Greenwald, aside from his comfortable berth in a country from which he can’t be extradited, isn’t being prosecuted because the political cost of doing so would be too great – not because his actions weren’t illegal.

    Like or Dislike: Thumb up 8 Thumb down 2

  26. -Mona- says:

    @HarvardLaw92:

    Ok, you say you are a former U.S. Atty, and you employ a moniker advertising Harvard law, but then ludicrously state, my emphasis:

    The 1st Amendment functions as a limitation on prior restraint, not as a bar to prosecution from the consequences of exercising speech.

    I’m a lawyer, too. And that is sheer, unadulterated bullshit. (Not that a JD is required to know you are trafficking in nonsense.)

    Really dude, what do the words “Congress shall make no law” mean to you?!

    For lurkers: To understand the free speech and free press issues relevant to Greenwald, Barton Gellman, Scott Shane and all the other journalists & editors who have published the Snowden documents and reported on them, I again commend to you the CRS pdf document I linked above. It is a dispassionate and accurate analysis of an unsettled, open question of law.

    Like or Dislike: Thumb up 4 Thumb down 6

  27. HarvardLaw92 says:

    @-Mona-:

    Again, you are making a value judgment based on the character of the information that was revealed, namely that in your opinion, it was something that the public needed to know.

    The problem there is that such a judgment can’t be made until the information has been released, and once it has been, there is no putting it back in the bottle.

    So where do we draw the line? Would you, for example. support a journalist revealing information about troop movements? About military readiness? About nuclear security protocols?

    If not, why not? You can’t turn this into some subjective proposition – it is either illegal to reveal classified information or it isn’t, and if you can justify journalists revealing information about intelligence activities (which you believe you are entitled to know), how do you square that with a prohibition against them revealing information that you believe should remain secret, but which somebody else thinks he/she is entitled to know? Who makes that determination?

    Is national security overused as a means of sequestering information? Possibly so, and that is a matter of policy that you should take up with the people that you elect to represent you, but enough already with rationalizing violating the law simply because you dislike the law.

    Like or Dislike: Thumb up 6 Thumb down 1

  28. HarvardLaw92 says:

    @-Mona-:

    Really dude, what do the words “Congress shall make no law” mean to you?!

    That you are operating on emotion and are one of those people who believe that amendments are to be interpreted literally, without exception. This is a fools errand.

    For example:

    Congress shall make no law respecting an establishment of religion

    Yet SCOTUS permitted the inclusion of a profoundly Christian phrase on US currency, and permits prayer at governmental functions.

    Congress shall make no law … abridging the freedom of speech

    Yet SCOTUS has upheld clear and present danger limitations, limitations on the immediate incitement of violence (fighting words), defamation, obscenity, time,place and manner restrictions, et al.

    Congress shall make no law … abridging … the right of the people peaceably to assemble

    Yet SCOTUS has upheld, repeatedly, restrictions on public assembly inherent in regulations imposing permitting and the payment of fees prior to holding certain types of public assembly.

    Point being? If you actually are a lawyer and you still believe that amendments are concrete expressions that must be followed ad litteram, then you need to call up whatever school gave you your JD and ask for your money back. No amendment is unequivocal. None of them. Ever.

    And, just in passing, the ad hominem is the tool of a weak mind. I get that you dislike my argument, but feel free to utilize that JD and substantially rebut it. I’m not interested in rhetorical poo flinging.

    Like or Dislike: Thumb up 6 Thumb down 2

  29. -Mona- says:

    @HarvardLaw92:

    The closest guidance we have in this regard, again, is the expressed opinion of 5 justices that had such a guilty verdict come before them, they would have voted to uphold it.

    Dicta from justices no longer sitting. And that is not the closest guidance we have. Read the CRS analysis; suggestive case law has not stood still since the Pentagon Papers matter came before the High Court.

    The NYT and WaPo have excellent legal teams, and there is a reason those papers have been publishing classified information for decades, including NSA documents. Among those reasons is that the question of constitutional protection for those publications is open and unsettled, and the press would be united in opposing such prosecutions. That you detest Glenn Greenwald would not change any of these legal or political realities.

    (And Sotomayor’s views on the Pen Register case have nothing to do with the issue of criminalizing the publication of classified materials; I do not understand why you invoked her. The former is a 4th Amendment matter, the latter a 1st and I am unaware that she has indicated where she lands on that.)

    Like or Dislike: Thumb up 4 Thumb down 6

  30. HarvardLaw92 says:

    @-Mona-:

    I did read it. Every case she cited has a tenuous linkage to the concept, at best, and the court has consistently upheld the criminalization of revealing classified information. The simple facts are these:

    The issue has not come before the court in a direct sense since New York Times Co.

    This court is no less dominated by conservatives in the present than the Burger court was, and in a sense is more so.

    It is unlikely to ever come before the court again, due to the political consequences of choosing to prosecute, especially in this climate.

    You are taking a “they have not been prosecuted” proposition and turning it into a “they can’t ever be prosecuted” conclusion, and that, ma’am, is weak lawyering.

    I invoked Sotomayor because you clearly see her as an ally, nothing more. Regarding Smith, I see no need to revisit it. There can never be a 4th Amendment expectation of privacy held to be applicable to information which you willingly reveal to a third party. You cede privacy when you make the revelation.

    You seem to be making a great deal of “this is the way that the law should be” assertions, but not a great deal in the way of legal analysis. By all means, though, feel free to argue to me why the 4th Amendment should protect information which you willingly and voluntarily release to a third party. Enthrall me with your acumen.

    Like or Dislike: Thumb up 4 Thumb down 1

  31. -Mona- says:

    @HarvardLaw92:

    Misdirection and hand-waving. The reality is that you made this astonishing false claim:

    The 1st Amendment functions as a limitation on prior restraint, not as a bar to prosecution from the consequences of exercising speech.

    In point of legal fact, the 1st Amendment “acts as a bar to prosecution from the consequences of exercising speech.”

    The Klan can rant all it likes about the inferiority of blacks and Jews, and even if the consequence is to spread such ideas and make them more acceptable, that speech is protected. Laws prohibiting “hate speech” are not constitutional. Anti-abortionists can call abortion doctors murderers with impunity, even if one of their numbers decides to kill an abortionist in defense of the “babies.” (They obviously cannot solicit murder.)

    True information and opinion are virtually never barred.

    Like or Dislike: Thumb up 4 Thumb down 5

  32. HarvardLaw92 says:

    In point of legal fact, the 1st Amendment “acts as a bar to prosecution from the consequences of exercising speech.”

    Then whence cometh prosecution for inciting riots? For promulgating obscenity and child pornography? For sedition? For communicating threats? For violating gag orders?

    If the 1st Amendment bars prosecution from the consequences of exercising speech, are you actually arguing that all of the above should be constitutionally protected exercises of speech?

    Like or Dislike: Thumb up 4 Thumb down 1

  33. -Mona- says:

    @HarvardLaw92:

    By all means, though, feel free to argue to me why the 4th Amendment should protect information which you willingly and voluntarily release to a third party. Enthrall me with your acumen.

    The ACLU and others are busy enthralling federal district judges with such arguments in suits that will finally go forward, thanks to Edward Snowden and Glenn Greenwald.

    But I’m not participating here to explore that collateral matter. My purpose has been to debunk your claim that it is legally settled that Glenn Greenwald, Barton Gellman, Scott Shane, their editors & etc, could all be constitutionally prosecuted for publishing and reporting on the NSA documents.

    I again stand on the CSR paper, and again recommend it to lurkers.

    Like or Dislike: Thumb up 4 Thumb down 4

  34. -Mona- says:

    @HarvardLaw92:

    Then whence cometh prosecution for inciting riots? For promulgating obscenity and child pornography? For sedition? For communicating threats? For violating gag orders?

    Again, publishing true information and opinion are virtually never barred. Gag orders protect another constitutional right, but short of competing constitutional rights, publishing true information or opinion is almost never barred.

    Like or Dislike: Thumb up 3 Thumb down 4

  35. HarvardLaw92 says:

    @-Mona-:

    The ACLU and others are busy enthralling federal district judges with such arguments in suits that will finally go forward, thanks to Edward Snowden and Glenn Greenwald.

    Like Clapper? Best of luck – you and they will need it. I admire their passion, but they are exceedingly bad lawyers.

    I again stand on the CSR paper, and again recommend it to lurkers.

    In other words, you have no substantive argument of your own to make, and you won’t respond to substantive questions from others.. You’re just a cut-n-paste jockey. Thanks for wasting my time.

    Like or Dislike: Thumb up 3 Thumb down 4

  36. HarvardLaw92 says:

    @-Mona-:

    Again, publishing true information and opinion are virtually never barred

    I see. So, in your legal opinion, WaPo could publish the nuclear launch codes, or the names of covert operatives, or the location of military units in time of war, and they would be constitutionally protected?

    You are all about these black and white proclamations, but you never seem to respond to the inconvenient speedbumps inherent in taking such a position.

    So, once and for all, please give me a legal justification for why the NYT would be immune from prosecution for printing the above. Are you actually arguing that they can print any classified information that they like, however damaging, and they are immunized??

    Like or Dislike: Thumb up 5 Thumb down 4

  37. ScuzzaMan says:

    @HarvardLaw92:

    “once people know a secret, they know it”

    And the secret the US government did not want the people, it’s employers, to know, is that it is spying on all of them all the time. That its spying is NOT aimed at terrorists and scary furriners, but is aimed at domestic dissent.

    And that’s what these threats of prosecution (and actual prosecutions already completed) are about: crushing domestic dissent.

    For someone concerned about criminality amongst the press, where the security of the nation is supposedly at stake (an absurd proposal but perhaps some other time), there seems to be a rather sanguine attitude towards your own government endangering your security on a much wider basis, far more frequently, over a far longer period of time, and affecting far more people.

    It’d be fascinating to read how you try to reconcile the fervour with which you argue Greenwald’s criminality, as against your silence on the government’s far more pervasive and consequential criminality.

    Assuming **crime** (that damages the freedom you enjoy) is the real issue here.

    Like or Dislike: Thumb up 5 Thumb down 4

  38. ScuzzaMan says:

    @HarvardLaw92:

    Thomas Paine didn’t work for the New York Times.

    He was far more akin to a blogger. The idea that the people who wrote the Constitution intended to criminalise, or to allow a future executive to criminalise, Paine’s kind of work borders on the insane.

    In terms of relative threats, they faced real and immediate risks of hostile conquest and the complete destruction of the fledgling union. No American living has faced such risks and nor do you today.

    Once again, there is a very odd hysteria over a very minor (if not non-existent) threat, while far greater dangers did not and do not stimulate the same degree of anxiety.

    Care to explain?

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  39. Argon says:

    @ScuzzaMan: “And the secret the US government did not want the people, it’s employers, to know, is that it is spying on all of them all the time.”

    And not just for national security. Apparently the NSA leaks to other agencies.

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  40. Thom says:

    @James Joyner: “But they didn’t actively solicit the document…”

    This is just awful. Clearly implying Greenwald solicited documents from Snowden – which you know is false.

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  41. Thom says:

    @James Joyner: ” I don’t claim Greenwald stole the documents but that he was an active participant in the plot to release them to the public.”

    Oh my God. That’s called “journalism.” Journalists publish stories for the public.

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  42. Thom says:

    @ScuzzaMan: “I don’t claim Greenwald stole the documents but that he was an active participant in the plot to release them to the public.”

    Exactly – he’s describing journalism as a nefarious act. While claiming to be a journalist.

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  43. -Mona- says:

    @HarvardLaw92:

    I see. So, in your legal opinion, WaPo could publish the nuclear launch codes, or the names of covert operatives, or the location of military units in time of war, and they would be constitutionally protected?

    No. Prior restraint is permitted to prevent publication of troop movements in time of war. See Near v. Minnesota. But the issue is criminal punishment post-publication.

    What you persistently refuse to address is that whether the statutory prohibition on PUBLISHING classified information is constitutional if it were applied to the press. That is an open question and unsettled law.

    Insulting me (because I refuse to be drawn into a battle of briefs on irrelevant legal questions) does not change the fact that you were wrong to insist that it is settled law that Greenwald, Scott Shane, Barton Gellman et al. could be criminally punished for publishing classified NSA documents, consistent with the 1st Amendment. There is no holding in case law to support your claim that they could be, but you steadfastly resit this admission.

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  44. -Mona- says:

    @HarvardLaw92:

    And about your notion that the third party doctrine isn’t ripe for review in this digital age, consider this news about a lawsuit against the NSA’s metadata dragnet:

    U.S. District Court Judge Richard Leon heard arguments Monday for and against a preliminary injunction that could halt dragnet data-collection programs operated by the National Security Agency.

    In one of the most substantive exchanges, Leon said Smith v. Maryland – a 1979 Supreme Court case often cited by defenders of surveillance programs – may be outdated.

    That landmark ruling found a criminal defendant did not have a reasonable expectation of privacy over a list of phone numbers dialed within a two-day period.

    “Things have changed a little since ‘79,” Leon said. “The technology that was being used in that case,” he said, “paled in comparison, paled in comparison to the technology the NSA has at its disposal.”

    Leon pointed to the Supreme Court’s 2012 U.S. v. Jones decision, which imposed limits on police use of GPS tracking, as a more modern legal barometer. “Smith’s value may be very limited [here],” Leon told government attorneys.

    Indeed. And whether this case moves forward, or one of the myriad others made possible by Edward Snowden does, as Judge Leon noted, the staleness of Smith and the third party doctrine will almost certainly go to courts of appeal, and likely to the Supreme Court. Again, thanks to Edward Snowden.

    These cases show why publishing classified information in the public interest is vital to a robust democracy, and why the publishers merit First Amendment protection.

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  45. HarvardLaw92 says:

    @-Mona-:

    I’m guessing that you missed today’s denial of cert regarding In re Electronic Privacy Information Center, or February’s similar resolution of Clapper v. Amnesty International?

    NSA data collection under the umbrella of Smith has come before SCOTUS twice now, THIS YEAR, and they have batted it away, allowing permissive circuit rulings to stand.

    Klayman is a toiler and a crank, but hey, best of luck.

    You’ll need it …

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  46. -Mona- says:

    @HarvardLaw92:

    I didn’t miss it. Not surprising that the Supremes denied a fast-track request. They usually do.

    Everybody taking positions you don’t like are: cranks (Klayman) bad lawyers (the ACLU) dismissed as ill-informed (Congressional Research Services) or a copy-and-paste poor legal mind (me). Only the person who ostentatiously advertises a Harvard law degree in their moniker is a smart attorney with a total grasp of the legal lay of the land. Well, if ad hominems and preening could win arguments, you’d have carried the day.

    But the fact is, Smith v. Maryland is ripe for review, as Judge Leon said today. (Is he an idiot as well?) These cases are going to percolate up and, especially if the circuits split, the High Court will eventually reconsider Smith in light of modern Internet and telephony realities, as well as the abilities of the NSA which the Smith Court did not remotely foresee.

    In any event — and again — these challenges to the NSA’s metadata dragnet are made possible by Edward Snowden, and by a journalist named Glenn Greenwald. Whether the latter could be constitutionally charged and convicted under the Espionage Act is unknown, as the question is open.

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  47. HarvardLaw92 says:

    @-Mona-:

    he High Court will eventually reconsider Smith in light of modern Internet and telephony realities, as well as the abilities of the NSA which the Smith Court did not remotely foresee.

    Um, no, they won’t. The premise that you have no 4th Amendment expectation of privacy with regard to information that you willingly reveal to a third party is as sound today as it was in 1979. If you are to find satisfaction, it will have to be statutory protections. SCOTUS isn’t going to sign off on some ‘well, you ceded privacy, but we’ll give it back to you anyway” fantasy.

    Helpful hint: in this age, privacy mostly doesn’t exist any longer. You willingly gave it away so that you could Google and Facebook and whatever else. The fact that the NSA knows SOME of what Google, Facebook et al know about you doesn’t bother me in the least, and I have serious doubts that it will bother this court either.

    Anybody familiar with Klayman will agree with my assertion about him. I call the ACLU bad lawyers because they are, well, bad lawyers. They lose pretty much fricking always, and they have seemingly zero understanding of legal strategy, preferring instead to shotgun emotionally driven litigation in the hope that their zeal will carry the day. It doesn’t. They lose an awful lot.

    Elsea wrote a bad analysis, and I delineated my rationale for calling it one.

    As for you, I get the scent of a recent graduate driven by passion and emotion. Perhaps you are one of those eternal cause warriors. All passion – no street smarts.

    I really don’t care, but as I said earlier, I tend not to waste my time on people who speak in cheerleader. When you are prepared to tender your OWN analysis, instead of parroting everybody elses, I’ll consider it. Until then, sell the protest chant to somebody else. I’m sure that you won’t have any difficulty finding an echo chamber.

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