Balkinization  

Monday, June 26, 2006

The Administration That Cried Wolf

JB

The Bush Administration is quite upset with newspaper reports that it is spying on people's financial records, arguing that revelation of the secret surveillance program undermines our struggle against global terror. In the abstract, at least, the Administration has a point. The difficulty is that the Administration so often leaks sensitive information for political purposes that we can no longer be sure when we should really be concerned. Because the Administration is so transparently political in its behavior, it's hard to take all of its claims of severe damage to our national interests at face value.

First, the government often leaks information that it would condemn the press for leaking if the information came from another source or without the Administration's blessing. The most obvious example is the infamous Plame affair, where an Administration official disclosed the name of an operative with a covert identity. One can only imagine the Administration's reaction had the press reported this information against the Administration's wishes. And just the other day, government sources leaked-- to the New York Times!-- information from a classified briefing about plans to scale down U.S. forces in Iraq. The Administration quickly confirmed the disclosure, so quickly in fact, that there is little doubt that the Administration was happy that the news leaked out. After all, the leak sent signals to the American people that we would not be in Iraq forever, and that is a point particularly worth making as the 2006 elections near. Yet one would think that secret military plans for withdrawal of American troops are exactly the sort of information that our opponents in the Iraqi insurgency would like to know about. And yet, unlike the disclosure of the secret banking surveillance program, the Administration did not suggest that *this* leak to the New York Times was "disgraceful," to use President Bush's words. And unlike the financial records story, no Congressman, to my knowledge has demanded that the New York Times be prosecuted for it. One can only conclude that is because the Administration figured that leak of possible troop withdrawals benefited the Administration's domestic political agenda.

Second, even the way that the Administration deals with leaks it clearly does not support is transparently political. In the past year newspapers have revealed a great deal of controversial Administration behavior, including (1) the secret NSA domestic surveillance program, (2) the secret collection and collation of domestic phone records, (3) secret surveillance of financial records, (4) the Administration's constellation of secret overseas prisons which engage in cruel, inhuman and degrading treatment and (5) the Administration's practice of secret rendition to countries that abuse and torture prisoners. In cases (4) and (5) the Administration has denied the practice despite considerable evidence to the contrary; in the cases of (1), (2), and (3) it has quickly admitted the practice and then proceeded to condemn the press for revealing it.

The major difference between the two sets of cases has largely to do with whether the Administration believes that there is any political advantage in fessing up and then blaming the press. Thus, it calculates that Americans will be happy to hear that it is engaging in surveillance that keeps them safe, but that Americans don't want to know that their government tortures or sends people off to be tortured. It regards the NSA program as a political winner but the torture revelations as a political loser, and so it says that it is proud of its "terrorist surveillance program" but repeatedly states that it does not torture or condone torture, despite mounting evidence to the contrary. But its decision about what to confess to and what to deny has almost no relationship to national security. It is, rather, about domestic political advantage.

Make no mistake: there are plenty of things that the press should not report, even in a free society such as ours. But we also live in a society in which the Executive has concentrated increasing amounts of power in itself and has used executive secrecy and national security as means of avoiding oversight into the competence and the legality of its actions. This Administration has misbehaved and misled the country so often that it is hard to avoid the conclusion that now it is mostly trying to beat up on the one remaining institution that can bring any degree of oversight to bear on its mistakes and its illegality-- the press. After all, had the press not disclosed the domestic surveillance story and the abuse of prisoners and detainees, it is highly unlikely that the Congress would have made even the feeble attempts oversight it has so far offered. In a political climate with a supine and feckless Congress the press is the only institution that has any chance of holding this Administration accountable for what it has done.

The Administration has misled the American people so often about matters of national security that it is hard to trust it even and especially when it complains the most loudly; it has repeatedly disclosed secret information for political ends unrelated to national security, while employing the rhetoric of national security to avoid political embarrassment. If people now view the Administration's current complaints against the press with skepticism, it has no one but itself to blame. This is truly the Administration that cried wolf.


Comments:

Given what he thinks of the constitution, its somehow not surprising that his response to the press sounds like a passive-aggressive whine.

It almost sounds as though he's getting tired of playing the 'it endangers america when you say something I don't like' card.
 

George W and his cheerleaders (Reps. Weldon and King, especially) are trying to "Dan Rather/CBS" the NYTimes. George W had ample time to take NYTimes, Washington Post and LATimes to court for an injunction effort, but chose not to. Perhaps George W feared the Pentagon Papers case (despite Roberts and Alito) and decided that to heck with national security, let's brand the high and mighty press in the court of public opinion as treasoners. By the bye, this is the same press that has provided much cover for George W over the years. What George W really can't stand is a press with a backbone.
 

Professor Balkin,

You make some great points, but several of your arguments are bit over the top. Let's take them one by one.

1. The last time I checked the government was directly responsible to the nation for its security, not the press. The press exists as a check on the government. It's a complete nonargument to say that the government releases information that it would condemn others for. Of course, because ultimately the responsibility (which includes deciding when to release certain types of information or not) is laid squarely at the government's feet. It's what it is elected to do - the press is not.

The Plame affair is a terrible example to use. A. It's been shown she wasn't a covert agent by any understanding of the term. B. National security wasn't arguably harmed by the release of her name. Analogies are only as good as the similarities between the two situations between analogized. In the Plame analogy, there are practically no similiaries to the SWIFT program (or others), so the analogy fails.

Your argument in your point 1 is just off. The administration and others protest leaks that are harmful to the national security of this nation - read programs that are leaked and the public recognition of the program hampers its effectiveness.

The leaking of the troops plans is justifiable. You posit, "One can only conclude that is because the Administration figured that leak of possible troop withdrawals benefited the Administration's domestic political agenda." Come on. You mean you despise the adminstration so much that you don't think they could ever do anything right. Maybe, just possibly, the "leaked" information didn't harm our national security and maybe served one of a myriad of other possible purposes? For example, they had just come to agreement on it, and probably hadn't decided yet how to release the information. Since it was leaked, why resist? The people would have figured it out soon enough. This reason for the acknowledgement of the leak is certainly as plausible as your own.

(Side Note: Now, granted, "national secuirity" is all too often banded about by those on the right since easily Nixon and the Pentagon Papers. I don't excuse those uses. To me, national security means something that fundamentally harms our ability to fight terrorists. Another aside, I do agree that even if a program is in our national security, but it is illegal and/or unconstitutional, then yes it may well be worth having information leaked about it. But, i'll save that balancing act for later)

2. You make a plausible distinction here between the two categories. However, there is another distinction that is arguably more relevant. 1 and 2 of your examples are programs that are possibly constitutional. So, that might explain why the administration would go public with it. If the program works, is a good tool against terror, and is arguable constitutional, why should the government not defend it? 4 and 5 aren't (in my opinion) legal or constitutional and can't be argued effectively to that end, hence the need to cloak the activities (which yes I do find most troublesome).

I know you don't agree with the expansive definition of executive power advocated by the administration (I find it questionable as well), but the general idea has much support throughout our history. But, that is a side issue.

However, the revelation of the SWIFT program goes beyond all reason. It was effective, completely legal and constitutional, had numerous safeguards in place, and necessarily relies on general lack of knowledge about its details for it to remain effective.

Yet, the NY Times chose to reveal it despite the lack of any REAL concerns about it. Keller cites the "public interest." Laughable. Maybe the public interest lies in the goverment doing its job - of which SWIFT is a great example of exactly the kind of programs we need to fight terror. That is why people are in an uproar.

The basic problem is that people like yourself do and always have had a profound dislike for this administration. I don't mean that in a particular pejorative manner. But I think its helpful, because it puts the theme of your post in perspective. it doesn't matter what the administration does. If it overreaches, then you call down civil liberties hellfire upon it. If God forbid we were attacked again, I would hear you all clamoring about how this adminstration didn't do enough to protect us. When it actually has a program that is a perfect example (SWIFT) of a civil liberties protecting, effective anti-terror program, somehow its still the administrations fault. I admit that they are far from perfect, but its hard to take your criticisms.
 

seriously (should be added to the end)
 

Another side point:

Both the Dem. and Rep. heads of the 9-11 Commission, that the NY Times practically treated with God like reverence a few years ago, pleaded with the Times not to public the story. If that wasn't enough, even Murtha asked them not to publish it.

I'm sorry, but if even Murtha was against it, then that should say something.
 

Historically, as the effort to catch front organizations got underway immediately after planes began to fly again, there was a US coordinated international effort to look at funding channels. We read many articles in the newspaper about the word-of-mouth and trust network in Afghanistan linked to a global finance network. Soon the newspapers published lists of names of organizations worldwide suspected of siphoning monies to the principal terrorist network. To me, a given in these storylines had to be scrutiny of bank records. The tempest in this particular teapot, as the author describes, likely is politics as usual in the current administration. The issue of trying to encourage congress to engage in more oversight is a difficult one for the administration, thereby, the administration's concoction of a purportedly new story of a new leak revealing the existence of bank records monitoring program as illustrative of the deleterious effect of publication of leaked news. Rather, I think the story here is pressure upon the news organizations, a kind of effort to repress publishers. The finance networks scrutiny has been fairly open in the press since 2002; the administration could relax on this point a bit and take some credit instead for its global effectiveness as a readymade tool for catching some shadowy activities very quickly.
 

The Plame affair is a terrible example to use. A. It's been shown she wasn't a covert agent by any understanding of the term. B. National security wasn't arguably harmed by the release of her name.

But these points simply aren't true. Plame was, arguably, not a covert operative pursuant to a certain convoluted statutory definition, but she certainly was a covert operative as the CIA defines it. Further, given that Plame was a counterproliferation expert working on, among other things, Iran's nuclear ambitions, it's hard to blithely conclude national security couldn't have possibly been harmed by the disclosure of her job, the outing of her CIA front company, and the exposure of any individuals who had past dealings with her or her front company.
 

Here's a question:

If Bill Keller and the NYT found out that we had broken AQ's or Iran's code a ala MAGIC with the Japanese, would they splash it on the front page?


I think they would.

And that's just sad.

They should be charged.
 

just curious, mr. zipfel: what are some of the characteristics of "people like yourself", ie, prof B? that they are academic elites? left wing idealists? or just persistant critics?

I smell a tautology here: people who are severely critical of this administration have a "profound dislike" for it. well, vis-a-vis issues like whether the top income tax rate should be 39% or 35%, or whether the minimum wage should be $5 or $6, I'd tend to agree that "despising" the opposition would be "over the top". but for those of us who frequently question this administration's integrity, honesty, motivations, and dedication to the constitution, profound dislike is way too mild, and even "despise" falls a bit short.

the essence of your comment is that security is the government's job, not the press's. but as you observe, the press's job is to serve as a check on government behavior. the question then becomes when to trust the government when it trots out the "national security" flag. you apparently have enough faith to defer almost always. some of us "people like yourself" are non-believers.
 

Steve,

I respectfully beg to differ.

"A former CIA covert agent who supervised Mrs. Plame early in her career yesterday took issue with her identification as an "undercover agent," saying that she worked for more than five years at the agency's headquarters in Langley and that most of her neighbors and friends knew that she was a CIA employee.
"She made no bones about the fact that she was an agency employee and her husband was a diplomat," Fred Rustmann, a covert agent from 1966 to 1990, told The Washington Times.
"Her neighbors knew this, her friends knew this, his friends knew this. A lot of blame could be put on to central cover staff and the agency because they weren't minding the store here. ... The agency never changed her cover status."
Mr. Rustmann, who spent 20 of his 24 years in the agency under "nonofficial cover" -- also known as a NOC, the same status as the wife of Mr. Wilson -- also said that she worked under extremely light cover.
In addition, Mrs. Plame hadn't been out as an NOC since 1997, when she returned from her last assignment, married Mr. Wilson and had twins, USA Today reported yesterday.
The distinction matters because a law that forbids disclosing the name of undercover CIA operatives applies to agents that had been on overseas assignment "within the last five years."
"She was home for such a long time, she went to work every day at Langley, she was in an analytical type job, she was married to a high-profile diplomat with two kids," Mr. Rustmann said. "Most people who knew Valerie and her husband, I think, would have thought that she was an overt CIA employee."

http://www.washtimes.com/national/20050715-121257-9887r.htm

Putting the partison bickering aside, in an ideal world I would prefer that her "indentity" had not been exposed (it was at all). However, any harm caused by her "exposure" is many times less worrisome (if at all) compared to the exposure of the SWIFT program and the like.
 

ctw,

Forgive the loose language. I'm not trying to lump Professor Balkin into some wacko group. I have a very high opinion of the professor - even if I disagree with him on almost everything he writes on his blog.

I am referring to those who see the administration and everything it does through a particular point of view. I don't know if there is a term for it. However, it does seem close to some reflexive aversion to anything the administration does. And when the administration does something right, they defend there naysaying by claiming Bush has abused them all this time, so how could they think well of him?

Well, I posit that it doesn't really matter what Bush does (outside of complete surrender to the left). Whatever Bush does, no matter how effective, legal and constitutional, certain groups/people throughout society, even in the hallowed halls of academia, will rain down rhetorical hellfire upon him. Everything Bush does is fit into their preconceived notions. That is why they explain away his "good things" by saying they can't accept them because of the abuse they have suffered from Bush in the past. Everything is Bush's fault.

I do not pretend to be an unbaised observer, or even any less unbiased. But, I think an acknowledgment of that bias greatly furthers understanding.

Side Note: This reflexive anti-Bush bias helps ensure that Republicans will survive in the Nov. elections. Granted, Bush does want the SWIFT program to be kept secret. But politically, it only plays into the Republican paradigm - "See, the Dems are so soft on terror, even when we have a legal, Constitutional, and effective anti-terror program those 'libs' still won't let us defend this nation."

If you care about your progressive causes at all, you'll tone down the reflexive anti-Bush bias.
 

CTW,

My argument is that many of the critics (for better or worse) develop a perception of the administration. But then, refuse to acknowledge facts that would indicate that their perception is wrong or at least incomplete.

Second, yes the press serves a checking function. But once again, when the program is legal, Constitutional, effective, and you have members on both sides of the political aisle begging you not to disclose, you do anyway?

The NY Times didn't have to trust the adminstration - all they had to do was honestly look at the facts. But, once again, facts weren't relevant. The Times made the story fit their preconceived notions. "There the Bush administration goes again, some secret government program that must be exposed for all the world to soo!"

But like I said before, the silver lining for Reps and conservatives is that it is more evidence for the preconceived opinion of many on the right that the left is weak when it comes to national security. And this is a prime example that will be parroted to no end before the American people.
 

Most of Jacob's arguments are refuted quite convincingly by Glenn Greenwald: http://glenngreenwald.blogspot.com/

I'll just comment on two points.

It's a complete nonargument to say that the government releases information that it would condemn others for. Of course, because ultimately the responsibility (which includes deciding when to release certain types of information or not) is laid squarely at the government's feet. It's what it is elected to do - the press is not.

This is a fair point when the government releases information publicly, but has nothing to do with Prof. Balkin's post. His criticism is of leaks by the Administration, not of press releases. It's the penchant for self-serving leaks which makes the Administration hypocritical.

In this sense, the Plame leak is an excellent analogy. I don't see how anyone can doubt that people like Congressman King, Michelle Malkin and many others would be calling for new Sedition Acts (or the Fascist equivalent: "an enraged citizenry taking matters into their own hands") if the New York Times published Plame's identity on its own.

Well, I posit that it doesn't really matter what Bush does (outside of complete surrender to the left). Whatever Bush does, no matter how effective, legal and constitutional, certain groups/people throughout society, even in the hallowed halls of academia, will rain down rhetorical hellfire upon him. Everything Bush does is fit into their preconceived notions. That is why they explain away his "good things" by saying they can't accept them because of the abuse they have suffered from Bush in the past. Everything is Bush's fault.

I think the term "fundamental attribution error" is appropriate here.
 

Mark,

Greenwald sounds just as outlandish as the Coulters and Malkins he so derisively attacks.

Further, he doesn't just exaggerate things, he is verifiably wrong on certain points. We can go into it if you want, but this probably is the appropriate place.

Here's how I approach leaks sanctioned by the government. A leak by the government is for all purposes all public disclosure in different form. This is a bit circular, but precisely because it is the government, it has the authority given to it by the people and Constitution to determine what reasonably should be classified and what should not be. Basically, official "leaking" is substantively different from unauthorized leaks because the entity "leaking" as the Bush administration is, isn't really committing a leak (if the term is to have any meaning). It's another form of disclosure by the sole body authorized to determine what is secret and what is not. Simply, Bush is authorized by law and by popular will through election to make such determinations. The press has no such authority.

Since when does the freedom of the press as in preventing the government from inhibiting a free, functioning press mean that the press can suffer no restriction?

No right is absolute. Further, the freedom of the press was given to the people, not solely to institutions like the NY Times. The arguments of Greenwald and other 1st Amendment absolutists would allow (to use the overused example) the NY Times to have published the US's invasions plans on June 4, 1944. Obviously, there must be limits. But, placing very bare restrictions doesn't mean the government can run roughshod over America. There are many countervailing checks and counterchecks. The press is just one, albiet a very important one.

Yes, "fundamental attribution error" is cute. But, my argument you cite is a very fair statement of Professor Balkin's post.
 

Just to throw this in.

I'm not pretending to be an expert on these subjects (obviously, I'm anything but). Plus, I have no claim to intellectual stardom, unlike the authors of this blog. I just enjoy engaging you all on these subjects in my albeit limited capacity.
 

"My argument is that many of the critics ... develop a perception ...[b]ut then, refuse to acknowledge facts ..."

being very attentive to this human shortcoming, I agree with the sentiment. eg, during the run-up to the alito hearings I wrote numerous comments castigating critics for misrepresenting his decisions, have cast mostly protest votes in the last few elections due to almost equal disgust with the campaign pandering of each party, and agree that b clinton is a severely defective person in important arenas.

but your position (broadly shared by admin supporters) ignores the possibility that one can sincerely have the considered opinion that this administration is almost always wrong. I have reflected on this vis-a-vis my own attitudes, suspecting that no individual or group could really be that bad, but concluded they're even worse than I initially feared. I actually believe that many of their objectives are equivalent to a gutting of the constitution.

believe it or not, there is a symmetry here: your position seems as extreme to me as mine apparently seems to you. it is inconceivable to me that an informed, rational person can't see what these people are trying to do. nonetheless, based on your comments, I accept that you are sincere in your faith. what I ask in return is that you afford me (speaking now in behalf of "people like yourself" - I'm old enough not to give a damn what anybody other than intimates thinks about me personally) the same presumption. ie, argue the specific point adamantly (as you have vis-a-vis the NYT issue), but leave off the amateur analysis of group dynamics. it may apply in the population at large (equally in both camps, I might add), but it's irritatingly presumptious in a forum like this.

-charles
 

Greenwald sounds just as outlandish as the Coulters and Malkins he so derisively attacks.

You can evaluate them your own way, of course, but Greenwald is, IMO, one of the most careful and thoughtful bloggers on the net. The difference between him and Malkin is the difference between Nat Hentoff and Father Coughlin.

A leak by the government is for all purposes all public disclosure in different form.

I don't agree with this, your very first premise. A leak is VERY different. First, it creates a danger that the Administration will manipulate public opinion by selectively leaking some facts while withholding others under specious claims of "executive privilege" or "national security". We needn't go further than the Plame case for a good example.

Second, it allows the Administration to score propaganda points, bashing the press for the leaks even while the Administration is the source. Aside from whatever political advantage this may gain, it's irresponsible behavior because it encourages a climate in which the press becomes a whipping boy instead of a critical player in any democratic process.

Bush is authorized by law and by popular will through election to make such determinations. The press has no such authority.

Sure. But the very existence of presidential authority to act assumes a responsibility in its actions which has been sadly lacking in this Administration. Abuse of power is a serious risk when the Administration claims to control access to all review over its determinations. The press performs a critical democratic function when it exposes dubious practices.

Since when does the freedom of the press as in preventing the government from inhibiting a free, functioning press mean that the press can suffer no restriction?

No one here has made that argument. Prof. Balkin expressly said, "Make no mistake: there are plenty of things that the press should not report, even in a free society such as ours." I have no idea why you asked such a (presumably) rhetorical question.

No right is absolute.

I've always wondered if a Senator could shout "Fire!" on the floor of a crowded Senate. See Article I, Sec. 6. Just curious.

the freedom of the press was given to the people, not solely to institutions like the NY Times.

Perhaps, but reporters and editors of the NY Times are just as much a part of "the people" as you or I. Working for the Times surely doesn't restrict First Amendment rights which expressly incorporate "the press".

The arguments of Greenwald and other 1st Amendment absolutists

I don't believe Greenwald is an "absolutist" on the First Amendment, though I don't know exactly what you mean by that. In any case, it's a generality unless and until you connect it somehow to the specific instance under discussion.

I think Charles hit the FAE nail right on the head.
 

Charles,

Okay fair enough about my overgeneralizations.

Yes, we are on opposite poles here. I was wondering if you would indulge me.

My perspective is that despite any excesses the Bush administration is doing what it can to fight the war on terror. Bush may be overzealous in his grab for tools to use, but I believe he fundamentally wants to do the best job he can.

You stated that "I actually believe that many of their objectives are equivalent to a gutting of the constitution."

Do you think that is a result of overzealousness on their part? Or, something darker.

Just to throw this out there, before 9-11 Bush was basically a mediocre President wallowing around without direction. 9-11 seemed to have brought purpose and meaning to him and his presidency. I see him through that filter. A man given a new lease on life as it were. Hence, his eagerness to do all he can in pursuit of his calling.

But what do you think?
 

Mark,

I. "A leak..."
A. Could be I have lower standards for politicians, but I see a leak by the administration that doesn't harm national security but leaked for some political points as fundamentally different from a leak that destroys the efficacy of some program vital to national security. Maybe to you its a distinction without a difference, but it seems substantively different to me.

B. I'm glad you raised the issue in your second sub-point. You assume that the government itself has to be whipping boy of the press. The press is constantly printing leaked administration that embarresses the administration. So, the administration has to just sit by and not defend itself?

Of course the administration shouldnt leak information knowing it will destroy some anti-terror program like SWIFT. But, as far as I know, they haven't done that.

Its particulary important with a press IMO (which I'm sure you will disgree with) that thrives on lambasting Bush at any given opportunity. I mean the Plame affair is emblematic. The press went on and on about that trivial affair - trying to peg Bush or Rove to the wall. The moral is the press thinks its okay for them to leak and even damage national security. But if the administration leaks anything at all, they must be tarred and feathered.

II. "Bush is .."
I think we talked right past each other. Of course, the press serves a vital role. However, the press should not be revealing secret programs that are effective, legal, and constitutional, especially when the revelation destroys the efficacy of the program. I have doubts about the revelation of the NSA program, but I can at least see the legitimate argument in that case for the leak. None exists in the SWIFT case, Greenwald notwithstanding.

III. "Since when..."
Sorry, that was an indirect reference to Greenwald. If I read him correctly, he was claiming the freedom of the press was "absolute."

IV. "The freedom of the press."
Sorry once again, I should have explained that better. If my father who designs the guidance and control systems for the airforce air to air missiles and air to ground weaponry (JDAMS) were to divulge the information to someone, he could go to jail for a very long time, as he should. However, if the Times reported about it, they think they have (or should have) an absolute privilege from prosecution or to reveal their sources.

I do agree that the press should in general be protected. But that protection ends (or should end) when instead of exposing illegal/unconstitutional actions by the government, they disclose the classified details of a program that was neither illegal nor unconstitutional.

We can get into this more, especially this last part if you wish, but I at least thought I would try to clarify my arguments.
 

Its particulary important with a press IMO (which I'm sure you will disgree with) that thrives on lambasting Bush at any given opportunity.

I started in the middle because I strongly disagree, as you anticipated. While "the press" is hardly monolithic in its behavior, it has in general behaved like the Administration's lapdog. Just a few examples: It failed to challenge the Administration's numerous falsehoods offered to justify the war in Iraq; the NY Times sat on the NSA story for a year at the behest of the Administration despite the fact that felonies were being committed daily; and the press repeatedly treated the Abramoff corruption scandal as though it affected Democrats and Republicans equally, when it manifestly did not.

Clearly, we start from very different perceptions.

I see a leak by the administration that doesn't harm national security but leaked for some political points as fundamentally different from a leak that destroys the efficacy of some program vital to national security.

Let's compare apples to apples here. I'm not aware that the press has disclosed any secrets which "destroy the efficacy of some program vital to national security". The SWIFT program was known well before the NY Times article. Nothing in the article tips off terrorists to anything they didn't already know. IMO, the press has been very cautious for fear of disclosing information which really should be kept secret.

Has the Administration behaved with similiar circumspection? Not if we believe MSNBC. According to it, "INTELLIGENCE SOURCES SAY VALERIE WILSON WAS PART OF AN OPERATION THREE YEARS AGO TRACKING THE PROLIFERATION OF NUCLEAR WEAPONS MATERIAL INTO IRAN. AND THE SOURCES ALLEGE THAT WHEN MRS. WILSON'S COVER WAS BLOWN, THE ADMINISTRATION'S ABILITY TO TRACK IRAN'S NUCLEAR AMBITIONS WAS DAMAGED AS WELL." http://www.rawstory.com/news/2006/MSNBC_confirms_Raw_Story_report_Outed_0501.html

Given the importance of the non-proliferation issue, outing a CIA agent who is working on it appears to be pretty much exactly what you have suggested should not be done, namely damage a national security program. Doing so for political gain is pretty far down my list of acceptable conduct.

I also think you underestimate the risk that classified data will be manipulated for political purposes. If the war in Iraq didn't emphasize the dangers of that, I don't know what could. In fact, though, our history is replete with such examples, Vietnam being only the most famous.

You assume that the government itself has to be whipping boy of the press. The press is constantly printing leaked administration that embarresses the administration. So, the administration has to just sit by and not defend itself?

As I indicated above, I don't agree that "the press" has constantly embarrassed the Administration. To the contrary, I think the press has very substantially failed in its job of exposing the Administration's flaws (I'm being polite).

But our disagreement goes deeper than that: IMO, it is precisely the job of the press to challenge the Administration. The Executive Branch is the most dangerous branch of government. The press is a vital check on abuse of power; it's an essential part of the democratic process because it enables the citizens to monitor the conduct of those who wield such dangerous power.

The Executive is hardly defenseless in this contest. It controls an enormous amount of influence, information, and patronage. I have no concern at all that the press will weaken it. The entire history of our country demonstrates the contrary -- the power of the Executive today is far greater than it was in 1790 and it's not diminishing.

If my father who designs the guidance and control systems for the airforce air to air missiles and air to ground weaponry (JDAMS) were to divulge the information to someone, he could go to jail for a very long time, as he should. However, if the Times reported about it, they think they have (or should have) an absolute privilege from prosecution or to reveal their sources.

I seriously doubt the Times believes it could print the details of such technology with impunity. In any case, there is no federal shield law, so I'm very sure they don't believe they could shield sources who disclosed such information. If they had any doubts on this score, a quick phone call to Judith Miller would settle them.
 

jacob -

I consider being "zealous" (in its extreme meaning) itself to be "something darker". an individual or group with a "calling" is the last thing I want to see in a position of political leadership.

if you want to know why, a good start would be to get paul berman's book "Terror and Liberalism" and read at least the description of the totalitarian "ur-myth" on p. 49ff. if you make the obvious (to me) substitutions, you may see disturbing consistencies between that ur-myth and administration (in which I include current congressional R leadership) policies. not being a conspiracy nut, I'm not suggesting that either the administration or the R party is intentionally aiming at a totalitarian state, but that doesn't mean we couldn't find ourselves edging that way nonetheless.
 

Maybe it's for sake of argument, but on the immediate issue "In the abstract, at least, the Administration has a point" is ill advised.

Glenn Greenwald provides the details, but suffice to say in this particular instance, the "disgust" voiced from Bush down is hot air. The NYT "made public" general details of things already reported elsewhere, in particular, in a UN report.

The story deals with important matters that even members of the administration felt possibly crossed the line. They informed the public of the balancing that takes place in a 'war on terror,' including providing points in the administration's favor. It is exactly the sort of thing a free press is there for.

The Pentagon Papers is a useful comparison. The newspapers there were accused (though even the gov't advocate in from the SC later admitted it really had no case) of being a threat to the public safety.

Not true. John Prados spelled this out in detail in his book, but it also is notable the papers themselves purposely chose not to include certain senstive docs.

The NYT also seems to have shown restraint ... even here, after the NSA delay allowed the gov't to play them as patsies even in the midst of a presidental election (the year delay perhaps harkened back to before 11/04).

btw, yes, the 1A refers to the people as well as the "press," but then and now, "the press" as an institution has an additional role. Comparably, the two major political parties technically are just "associations" that can include a group of friends talking about some political issue.

The Democrats and Republicans, however, are treated a tad bit differently in practice.
 

Also, it is telling how the "NYT" in particular is targeted, including in remarks by Tony Snow. The other papers "followed" their lead so clearly the NYT really deserves most of the blame.

Not the LAT or Wall St. Journal, who are just weenies following in the big bad paper's tracks. This too underlines the selective hypocrisy involved here.

Again, whatever "point" that might be there can't be taken seriously if so expressed. If the Bush Administration wants to be taken seriously, act seriously. Until then ...
 

Okay, I see I need to make my argument about how the efficacy of the SWIFT program was damaged by the leaking.

1. Knowledge of the SWIFT program, let alone details of its means and methods were NOT common knowledge (or likely known by many if not any people) before the Times Report.
Here's Why.
A. Did you know about SWIFT? Did I? No (okay, that's the easy step).
B. Let's assume high powered financial types knew about SWIFT. Knowledge of the existence of SWIFT is far different from knowing that the government used SWIFT to conduct terrorist financial tracking.
C. Even if a few people knew SWIFT was used, that knowledge is also categorically different from knowing the specific means and methods revealed in the Times and the fact that it is (was) a primary if not the primary program used to track terrorist financing.
D. Even if some terrorists knew about SWIFT, al-Qaeda is not a centralized organization. It is made up of many disparate groups - many of which are not financial experts (although some undoubtedly are). As such, isn't it reasonably to think that even if a few were aware, many, if not most were not? Even if there was some knowledge about it was out there, it is VERY unlikely many if not most of the terrorists knew about it until the NY Times splashed knowledge about the program (along with details that were inarguably not commonly known) all over its front page.
F. Most Important: The very successes of the program strongly show (as mentioned in the Times article and elsewhere) that obviously not enough terrorists knew about the program or knew enough details to escape the snare. This last point is the most damning I think. You can try to argue against it, but it is the most plausible reading of the facts as we know them.


I can go on, but I think the above casts much doubt over the contention Greenwald puts forward among others.

Pentagon Papers:
Worthless analogy because the PP dealt primarily with historical documents that did not impact national security in any meaningful way. Yes, the Nixon administration argued it would damage national security, but their argument was a crock. The PP dealt almost entirely with historical documents, it did not reveal programs or the details of programs that were of at that time current importance.

Even more important if you read the case, most of the justices seem to stress the fact that the administration couldn't show any affect on national security. The justices seemed to go out of their way to stress that despite this, the Times was still on the hook for criminal prosecution relating to the leaks if the government chose to pursue those charges, which thankfully the government did not.

I btw think the PP is a great example of "good leaking" and responsible reporting.
 

Joe,

Your allegation of hypocrisy doesn't wash and here's why.

A. The Times was the frontrunner on the story.
B. The LA Times published when it did only after they found out the NYT was publishing for sure.
C. The WSJ interviewed non-anonymous sources. This is the difference that means everything. The WSJ's sources talked openly because the "cat had already been let out of the bag."
D. If the LAT or WSJ were the entity and not the NYT but every other fact stayed the same, you would have seen the exact same outcry. Except, I posit the WSJ never would have done such a story - not sure about the LAT.

Thanks for bringing that point up though, cuz its thrown around often, but it has no validity.
 

ctw,

Don't hate me if I say I really don't feel like taking the time to buy or check out the book. Hmm, I take that back, I will have to spend a few hours in Midway airport tomorrow - I'll see if I can find it in a store there. Always been interested in it.


Still, let me put out a few thoughts. (since, I haven't read that passage, I may not be speaking on point, but I think what I say next may have some relevance.)

As to the ur-myth, from what I understand of it, I can see little hints of what Berman talks about - but I don't see any direct comparisons to our current situation. I could be looking at it the wrong way though. Plus, I haven't read the book, so...

On a tangential point, elsewhere on this blog, I've explained that this aggrandizement of power in the executive is part of a historical ebb and flow process. In times of war or peril, the executive grabs power. When the situation passes, power ebbs. Of course, that doesn't completely disprove your point, but I think historical perspective makes it look less ominous.
 

Mark,

1. Yah, we will have to strongly disagree. Each example you cite I find either unpersuasive or indicate of the exact opposite. (but, of course I do! heh)
I can explain if you want, but I don't think it will get us anywhere.

2. Okay, I can't load up that story you linked to. I consider myself fairly read on the Plame affair, but I could have missed it. As well, if the story was credible, it undoubtedly would have been splashed all over the papers, per the press's year long obsession with the story.

As well, the justification for the mention of her name make sense to me. Joe Wilson went straight to the pages of the NYT calling Bush a liar. Well, as we know now, the liar was Wilson.
A. Despite his numerous denials that his wife had anything to do with him getting that job, his wife did recommend him, there was even a memo written by her to a higherup pushing her husband.
B. Wilson claimed that Bush based his knowledge of forged documents that it turns out the CIA didn't have for months after Bush made stated those 16 words.
C. The Butler report by the UK and the report issued by the Senate Intelligence Committee both explained that Bush's statement was accurate. There was evidence, the forged documents aside, that Saddam was trying to get yellow cake uranium from Niger.
D. Finally the Senate report explained that the CIA actually considered the report Wilson gave to them as moderately supporting other evidence that Saddam was seeking yellow cake.
F. So, Rove, et al. mentioned her name so reporters could see that Wilson was full of it. He lied about almost everything he could lie about. The administration was getting unfairly hammered by the press, so they mentiond her to prove to the press that he was a liar.
G. As the article I cited before mentions, even her former boss said she wasn't "undercover" at all around that time , and years before in 1997 when she actually was, it was the lightest cover.
F. Now, if somehow revealing did harm national security, then yes the administration should be condemned, but I don't see any persuasive or arguable evidence that it did. But there are very compelling reasons for mentioning her name to expose her lying husband and the press that breathlessly reported everything he spit out.
 

jacob -

being a bit of a determinist, I don't "hate" anyone - I believe you can't keep yourself from being wrong. (:>)

you definitely won't find berman's book in an airport, so here's the quicky annotated version of the ur-myth:

there is a righteous people (US public) who once lived in a righteous society (pre-new deal or '60s); are beset by enemies from within (gays, atheists, elitists, etc - in short, "liberals") who live in dens of iniquity (E and W coast - more accurately, cities, especially LA) and by enemies from without (terrorists, immigrants, the French); these enemies must be eliminated so that a new regime of righteousness (a one-party theocracy) can be installed. since this new regime is needed to save the country, no actions taken in furtherance of that objective are off limits. the result will be a utopian paradise (unfettered capitalism with all its inevitable bounty for the righteous). oh, and of course there will be a semi-divine leader who is/was a strong, courageous, wise horseman (some combination of RR and GWB - or maybe to be consistent, a trinity that includes J scalia - altho I doubt he fancies himself to be a cowboy, as I haven't seen him on the horse trails in our small community).

fanciful? 20 years ago I would have said "no, insane". but can you honestly say that little or none of the above describes "our current situation"? even the most extreme component - militant and eliminationist rhetoric - has entered the vocabulary.

you focus on the executive "power grab" as an end in itself. to me, it's just part of an overall pattern that is consistent in broad outline with the ur-myth. note that I didn't say plan; to repeat, this is not a conspiracy theory. I don't think most of the relevant political actors are "evil", and some may even worry about some of the extremism. but to the extent that they encourage it or don't at least distance themselves from it, they will be responsible for any bad consequences - as will anyone who behaves similarly.

- charles
 

I lost a whole post here; this is a second try. Trust me, the first was eloquent and irrefutable.

Let's assume high powered financial types knew about SWIFT. Knowledge of the existence of SWIFT is far different from knowing that the government used SWIFT to conduct terrorist financial tracking.

I disagree with this most fundamental point. IMO, if information is legally known or knowable by anybody without a security clearance, then the press is free to report it. (I also think the press is sometimes free to report some information which has been classified, but that's a more complicated issue.)

Suppose a reporter observes an obvious gap in airport security. The paper prints it. That's a good thing, it's what the press is there to do. It calls our attention to a problem that needs fixing.

In this case, the NYT called our attention to another manifestation of a very troubling characteristic of the Bush Administration: its relentless intrusion on the privacy rights of Americans without any oversight by other branches of government. That's very relevant information for voters to have.

If the paper had revealed information that was truly secret, that would be a different issue. It didn't. Others in addition to Greenwald have pointed this out: http://www.tpmcafe.com/blog/coffeehouse/2006/jun/26/is_president_bush_swift

Since I've disagreed with your most fundamental premise, I don't think I need to address the remainder.

Yes, the Nixon administration argued it would damage national security, but their argument was a crock.

We know this now, but we didn't know it when the Nixon Administration was seeking to block publication of the Papers on national security grounds and denouncing the traitorous behavior of the press for daring to print them. Those of us who lived through this experience, and many similar ones, are understandably skeptical of the reaction of the Bush Administration. If you want more basis for that cynicism, read this:
http://www.tpmcafe.com/blog/coffeehouse/2006/jun/27/bush_confused_about_leaks

I can't load up that story you linked to. I consider myself fairly read on the Plame affair

I screwed up the URL. Here it is again: http://www.rawstory.com/news/2006/MSNBC_confirms_Raw_Story_report_Outed_0501.html

The details of the Plame case have been rehashed over and over. I don't think this is the place. Suffice it to say that I don't agree with any of your statements or conclusions.

I should have made one additonal point yesterday, though. Leaks by the government are not harmless disclosures. They undermine the classification system because no one can ever be sure whether a leak is "authorized", and therefore ok to publish, or "unauthorized" and therefore subject to criminal penalties if published. The Administration wants to have it both ways of course, defending Scooter Libby when that's convenient, calling for the imprisonment of reporters when that suits its political purposes. That's not just unethical behavior, it undermines our security and our system of government far more than the NYT ever has.
 

Naturally I found this after my previous post. The Boston Globe today reinforces the fact that the information published by the NYT was NOT secret: http://www.boston.com/news/nation/washington/articles/2006/06/28/terrorist_funds_tracking_no_secret_some_say/?page=1

Ask yourself this: in all the hysteria over the publication, what fact is it which (a) was not previously known before, and (b) would help a terrorist avoid surveillance? If the Administration can't point to such a fact -- and it can't -- then its behavior is despicable.
 

Ask yourself this: in all the hysteria over the publication, where is the outrage that should be directed toward the person who leaked the classified information to the Times?
 

Mark,

Okay, I read the Boston Globe story.

I'll let former co-chair of the 9-11 Commission Thomas Kean speak for me as to his understanding of the program from his stint on the 9-11 Commission.

"Kean said that when he was briefed by the Treasury Department on the program, "I was told very few people knew about this facility," which provides transaction processing services for over 7,000 financial organizations located in 194 countries worldwide.

"I was told that very few financial houses in this country knew about it; it was not well known even by people in banking," Kean said. "The terrorists didn't know the financial transactions went through this one group. Treasury told me, this was a method of financial tracking that people didn't understand, that nobody knew this was how things were done. Top-notch people in the US didn't even know."

"The second thing is that it took a long time to get this program set up. SWIFT is not US-controlled; we had to persuade them to cooperate, convince them that this was so important to the war on terrorism. It was a great coup when all these other countries agreed to go along."

So for even those terrorists who might know of SWIFT, "the idea of the U.S. and CIA having a tap into it is something people would find impossible to believe."

http://blogs.abcnews.com/politicalpunch/

Further, I should stress that the "proof is in the pudding." The program was working. How obvious does it have to be that plenty of terrorists were NOT aware because they were being captured by the information gleaned from it.
 

Mark,

And your first point is just wrong on its face. If the information contained in the article was public knowledge, how come the NYT had to use all anonymous sources?
 

ctw,

Having grown up in a very strongly conversative/evangelical family (the type you tell your children stories about to scare them, ;) I can calm your fears. Many of even the most hardcore evangelicals do see "evil" elements in society, but notion has always existed. Just look through American history. Its rampant with it. However, they don't have any of the

But I think its easy to oversell the point.

For one, I guarantee you none of them consider this executive power grab to either A. be a part of their plan or B. to even be relevant.

I posit there is another "myth" that is even more relevant - the End Times. If anything, conservative Christians (CC) are very worried about the coming of the Anti-Christ. All of the modern advances in technology that allow greater control over people just enhances their fears. The ability of the President to lock up people on his one word without court oversight scares them to death. To them, its exactly what the anti-Christ will do (who by the way is supposed to be a very charismatic leader, etc. all the traits you posit in support of your ur-myth).

Well, to many CC the threat from terror outweights the End Times concerns, but I guarantee you that the second the threat is over, they will be demanding the goverment relinquish its hold.

I think you have no reason to fear, because many of the facts you use to support the Ur-Myth even more directly support the End Times idea (which freaks out Christians).

But, I'm tired, I hope this post makes sense. But I'll prolly just confuse you, because when I get tired, my reasoning just completely breaks down.
 

And your first point is just wrong on its face. If the information contained in the article was public knowledge, how come the NYT had to use all anonymous sources?

I used the term "public" to mean "legally known or knowable by people without security clearances". SWIFT indisputably falls into this category. As I said above, I have no problem if the press reports such facts. That's its job.

I am far more concerned about the bullying tactics adopted by the Administration and its supporters to silence the press. That undercuts core values of our democratic system and harms us far more than the terrorists could.

Your quotes from Kean are interesting, but inconsistent with the public facts mentioned in the Globe article and elsewhere. Since Kean only knows what he was told, it's hardly surprising that he knew less about it than others.

Frankly, I'm no longer prepared to accept at face value Administration claims that terrorists "don't know their finances can be tracked". Or that their calls might be monitored. If they were that thick, even the Bush Administration might have caught them by now.
 

jacob -

one final note: my ur-myth concern isn't CCs per se, it's any leader manipulating the sheep whoever they are. currently, it's the R party leader ship manipulating the extreme right, which of course includes some CCs but not all.

jimmy carter - IMO a real Christian - worried me not in the least (well, not for religious reasons), since I trusted him. by contrast, I find it hard to square the behavior of most of the self-proclaimed "faithful" in the current R leadership with what I consider to be meaningful Christianity, ie, trying to emulate Jesus. I place no value whatsoever on saying one's a Christian and then acting otherwise.

BTW, my go-to source for Plame perspective is bob somerby at dailyhowler.com, who is decidedly on the left. he is in total accord with your assessment of joe wilson. this is an example of why I bristle when anyone infers opinions from labels. granted, many (most?) do have knee-jerk positions consistent with their label, but I don't think that should be an a priori assumption.

- charles
 

on the actual topic of the original post, ed brayton at science blogs has a post that confirms my sense that there are no heroes in this matter. he basically cries "a pox on all their houses", altho in spicier language (atypical, but occasionally the posturing on all sides does drive one to profanity, better judgment notwithstanding.)

http://scienceblogs.com/dispatches/2006/06/the_times_treason_and_politica.php
 

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