Balkinization: Still More Tales from the "Unitary" Executive

Comments:

Well Marty,

Definitely interesting stuff and I'm looking forward to reading the book just as soon as Amazon delivers it.

But I can't help wondering...

If someone asserts that 1 + 1 = 3 in Afghanistan, 0 in Cuba, or 2 in the United States unless the President "determines" that the particular units in the calculation are satan-worshipping irrational numbers instead of integers, in which case the sum is infinity; AND we assume the individual making the assertion is doing so in good faith -- what does that leave?

Are they insane?

Incompetent?

Or are they committing deliberate fraud in the good faith belief that it's in the best interests of those they are defrauding?

What?

# posted by

Charles Gittings : 5:26 PM

I came away from my time in government thinking, as many people do, that there’s too much secrecy. Both too much secrecy inside the executive branch and between the executive branch and Congress. There’s obviously a trade-off and it’s hard to know when to draw the line. If issues and debates are too tightly drawn, and there’s too much secrecy, then two pathologies occur and we saw them occur in this administration. One is you don’t have the wide-range debate needed to help you avoid errors. Two is, it’s pretty well known that excessive secrecy leaves other people in the government to question what is going on when they get wind of it, and to leak it. And I don’t know what was the source or the causes of the devastating leaks of certain NSA programs. I don’t know who did it or why they did it, but the newspapers have suggested there are people disgruntled about the program.

In a rare instance, Goldsmith makes no sense.

The argument here is that, if you do not disclose a top secret program to a much broader group for debate making it much more likely to be leaked, some disgruntled traitor will leak it anyway.

This is the equivalent of arguing that we should have have disclosed the ENIGMA program and the Manhattan Project to a few dozen attorneys in Justice during WWII to have a policy debate to avoid leaks.

There were no leaks of those programs to the Axis because we would have tried and executed any leaker and no self respecting newspaper would have published a story about those programs.

I have a far better solution for Mr. Goldsmith.

Haul Risen and Lictblau in front of a criminal grand jury and ask them to identify their source.

If they refuse, hold them in jail for contempt and then start criminal prosecution against them and the NYT for disclosing state secrets for which they had no authority to possess.

Prior to Vietnam, this kind of near treason of disclosing intelligence gathering programs to the enemy was never tolerated. Time to get back to basics.

# posted by

Bart DePalma : 7:45 PM

-- If they refuse, hold them in jail for contempt and then start criminal prosecution against them and the NYT for disclosing state secrets for which they had no authority to possess. --
.
What's the hold up on prosecuting the NYT? The publication was done, there's no need for further investigation on that.
.
Punish the publishers vigorously (within the law, of course), and leakers will lose substantial destinations to leak to.

# posted by

cboldt : 8:32 PM

cboldt:

What's the hold up on prosecuting the NYT? The publication was done, there's no need for further investigation on that.

Good question. FDR would have prosecuted these SOBs in a NY minute. So much for the theory of Bush as fascist theory...

# posted by

Bart DePalma : 8:57 PM

While we are discussing the subject, the al Qaeda terrorists trained in Pakistan and who were arrested in Germany before they could bomb US facilities in that country were very likely discovered as a result of a TSP intercept:

The arrests were the culmination of an investigation that began a year ago, when U.S. officials alerted German authorities to e-mails intercepted from Pakistan.

# posted by

Bart DePalma : 9:21 PM

Folks: Once again, please try to keep the discussion on point, and do *not* indulge the temptation to respond when provocateurs try to change the subject. We've had some productive comments threads in the past few weeks -- let's keep it up.

Thanks

# posted by

Marty Lederman : 9:35 PM

Professor Lederman:

At the risk of having you shut down yet another comment section in the name of promoting an exchange of "productive comments," I am tired of your claims that my posts are not topical as an excuse not to engage or have anyone else engage my responses to your posts.

You were the one who quoted Mr. Goldsmith's proposition on how to avoid what he calls "the devastating leaks of certain NSA programs." You brought up the subject.

I responded directly to the Goldsmith proposal and offered an alternative response.

cboldt had the temerity to agree with my position about bringing those who leak to the enemy to justice and gets a scolding about "responding to provocateurs."

Please stop the charade of arguing that I and others are not being topical. My responses to your posts usually directly quote from your post or other content to which your post quotes or links. I am far more polite in my presentation than most of those who you consider to be "productive." Consequently, let's cut to the chase.

If your policy for allowing comments is to limit them to those ideas of which you approve, just admit it.

If your policy is to promote a content based shunning, just admit it.

If you disagree with my position, what would be interesting is to have you explain either why Goldsmith is incorrect that the TSP leaks (which you are on record supporting) were "devastating" to our national security or why the perpetrators of "devastating" leaks should not be prosecuted to the fullest extent of the law as I suggested. However, that would not be "productive," would it?

I do not expect that basic courtesy of a response. Indeed, I expect yet another group censorship by shutting down this comment section again.

# posted by

Bart DePalma : 10:38 PM

As an avid reader of Balkinization I have the impression that BartdePalma's aim is to shut down the comments section on any subject he cannot dominate and control.

Why not just ignore him? When I see his posts, knowing the convoluted and lengthy comment to follow, I hop, skip and jump to the next one.

# posted by

electra : 3:38 AM

Thanks for voicing it, electra. I do the same thing. It's too bad our friends can't take a lesson from Jack Goldsmith. I've been working on the issue of customary international law for years now and, whereas I disagree with Goldsmith's interpretation, I always find his arguments sober, responsible and worthy of being taken seriously.
Here, too, Goldsmith raises substantive, serious questions about the rule of law about which reasonable people can disagree. Ultimately, it comes down to an assessment of reasoning and experience. Ad hominem arguments have no place here. There are a lot of relevant issues here that require a lot of thinking: for example, as Goldsmith points out, it is one thing for FDR to exercise sweeping powers where Congress has not spoken or there is no governing treaty. It's something else entirely to do the same thing where there is governing law. And about these things, there was no consensus among the Founders, the Federalists or the Anti-federalists, as far as that goes. WE need to be hashing this out - by what constitutional theory may the President disobey the law? The examples usually touted out for this - for example, Lincoln's suspension of habeas corpus or FDR's actions with respect Quirin - seem quite unsatisfactory to me. On on hand, the narratives undermine the argument - Lincoln sought Congressional approval later, the suspects in Quirin did have a modicum of due process, etc. Does the argument really come down to: if we like the result, then it's OK for the President to disobey the law? Is the argument really that the only check on Presidential power is the vote every four years? It seems to me the Founders had a far more subtle system of checks and balances than that - for example, granting Congress (or the Senate) powers that were clearly only "executive" in 18th century legal theory. Well, enough, I'd really love to participate in reasoned discussion of this here.

# posted by

aristotelian : 5:49 AM

-- cboldt had the temerity to agree with my position about bringing those who leak to the enemy to justice --

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I wasn't agreeing with your position, I was asking why at least the NYT punishment part hasn't been put into action, seeing as how (you think) the prerequisites for a criminal publication violation are in place. Your answer wasn't responsive to the question.

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I think your proposed solution is flawed, because I don't think the publication creates a criminal violation. But if publication did create a colorable violation, and the administration was in fact confident and aggressive, it would press the charge. It didn't press the charge -- therefore it either isn't confident, or it isn't aggressive.
.

The cat is out of the bag, i.e., this isn't like the Chicago Tribune case where publication of enemy ship movements indicated that we'd cracked their code, hence a desire to tamp the story down. The issue here isn't cracking some code, it's the extent of use of known surveillance tools. The downside risk of pressing the charge is political. It would be viewed as an attack on the free press and 1st amendment. Pressing the charge would not result in disclosing some secret capability -- it would only reinforce the secret use of a known capability.

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Further, I find your example, making specific technical programs (ENIGMA and Manhattan) into the equivalent of a policy of secretly snooping inapt. FDR at least had his mail censorship program operate in the open.

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Maybe, someday, it WILL be a criminal violation to disclose government policy as it pertains to programmatic invasion of privacy. Maybe it SHOULD be a violation. I personally think it shouldn't, but then I'm one of those pests who values individual autonomy, privacy, and power as being a root of strong societies.

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I think Mr. Goldsmith is correct in his assessments regarding the long-term effect of a branch of government going solo, in secrecy, on policy matters. It's a formula guaranteed to produce mistrust.

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I took Professor Lederman's reminder as aimed at your "Bush as a fascist theory" bait. That is the change in subject -- whereas discussions pertaining to the TSP and its fallout are more or less on the point.

# posted by

cboldt : 6:46 AM

okay, I'm confused when Goldsmith says below that he hadn't determined illegal the particular techniques used in torturing the detainees at Abu Ghriad. One photograph did it for me :

When you decided that you had to do this, what was your thought process for going to see the attorney general?
I had determined that the analysis was flawed. But I hadn’t determined the underlying techniques were illegal. After Abu Ghraib, there was enormous pressure for me to stand by the decisions … and I couldn’t do so. I had already made up my mind many months earlier and I wasn’t about to change it. But I struggled for several days with what the consequences might be of withdrawing the opinion, because I wasn’t in the position to make an independent ruling on the other techniques. I certainly didn’t think they were unlawful, but I couldn’t get an opinion that they were lawful either. So I struggled to repudiate the flawed opinion while not causing massive disruption and fright throughout the counterterrorism world related to interrogation. And I ultimately decided that I had to withdraw those and under suspicions, stand by it, because it was so thoroughly flawed.

# posted by

redwood : 10:42 AM

What is confusing you, redwood?

When Goldsmith was confronted with the prior OLC opinions that effectively said, "For reasons A, B, and C, it is permissible to engage in interrogation tactics X, Y, and Z" he reached the conclusion fairly quickly that A, B, and C did not constitute sound legal reasoning. By the time the Abu Ghraib scandal broke, however, he hadn't yet reached the conclusion that there weren't other sound legal reasons -- call them D, E, and F -- that would support the same conclusion that X, Y, and Z were permissible. Because of the demands of the moment after the Abu Ghraib story broke, he withdrew the prior OLC opinions in their entirety, even though he hadn't yet conclusively determined whether X, Y, and Z were legal or illegal, only that A, B, and C were not sufficient grounds to make X, Y, and Z legal.

# posted by

Unknown : 12:24 PM

I think Mr. Goldsmith is correct in his assessments regarding the long-term effect of a branch of government going solo, in secrecy, on policy matters. It's a formula guaranteed to produce mistrust.

I agree that Goldsmith is correct in his observations on excessive secrecy not only between branches of government, but also within the Executive. However, there is a larger problem that he is missing.

Excessive secrecy can lead to leaks when someone is trusted with what appears to be a particularly ugly piece of the puzzle, but they are kept from seeing the other pieces that make sense of the first. That would seem to be a fairly infrequent problem. A bigger problem is that secrecy and distrust corrode reciprocal trust -- if you won't trust me with your secrets, then I'm less likely to trust that your questionable actions are legitimate. The biggest problem, and one that Goldsmith does not address in what I have seen of his statements thus far, has nothing to do with secrecy.

That problem is the failure to grapple with the conflicting opinions of those you have already entrusted to know your secrets. When the majority of your trusted advisers are telling you one thing, but you choose to follow the advice of a decided minority, and especially if you do so while leaving the majority little knowing or satisfied with your reasoning, then it wouldn't surprise me if one or more of the majority began to consider whether the leaking of questionable decisions were justified.

# posted by

Unknown : 12:53 PM

aren't we're talking about the S & M activities England et al were photographed doing, Mark?

And I don't read Goldsmith saying that he "...had not yet conclusively determined..."

I read him saying he didn't go there (i.e. to the question of whether it is lawful to waterboard, and otherwise sadistically torture one's prisoners) because he wanted to give the agents on the ground time to adjust to his own unprecedented action.

he gave them time to wise-up by not following through with the question.

And I'm also not buying his fear of the law garbage. It's not the rule of law they respected and feared. It was the prospect of having their careers destroyed.

# posted by

redwood : 1:21 PM

Actually, Goldsmith has clearly said and written that by the time the Abu Ghraib story broke he had not yet concluded that D, E, and F did or did not exist, and thus whether X, Y, and Z were or were not permissible. What is even more distressing than the fact that the head of OLC would leave such questions of torture up in the air for months without legal foundation (at least in his own judgment, if not yet officially), is Goldsmith's excuse for doing so. He says, while declining to go into specifics, that there were simply questionable legal activities by the Bush administration more demanding of his time than the interrogation techniques sanctioned by the prior OLC memos!

# posted by

Unknown : 1:34 PM

FDR would have prosecuted these SOBs in a NY minute.

Really? Just like he had the Chicago Tribune prosecuted for leaking the Rainbow 5 plan?

# posted by

Anderson : 5:06 PM

Anderson:

No other paper followed the Chicago Trib's leak and the Government made a conscious decision not to draw enemy attention to this story.

If the military found the leaker, I assure you he would have been courts martialed in a NY minute.

# posted by

Bart DePalma : 8:34 PM

-- If the military found the leaker, I assure you he would have been courts martialed in a NY minute. --

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Not without approval from above. If the stakes were high as to disclosing the code was cracked, the executive would have [properly] found other remedies for the "code-broken!" leaker.

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But the WWII examples are a counterpoint and contrast to resisting disclosure of the state-secret programmatic surveillance of Americans, for the purpose of obtaining or dispelling suspicion.

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On that matter, Goldsmith argues that obtaining explicit Court and/or Congressional agreement (or adjustment) would have been of substantial value to the institutions of the constitution and the executive. Maybe he's wrong. Time will tell. I think it's obvious that he's right, but I can't prove it.

# posted by

cboldt : 9:03 PM

The argument here is that, if you do not disclose a top secret program to a much broader group for debate making it much more likely to be leaked, some disgruntled traitor will leak it anyway.

No, Bart. Leaking a secret program is not levying war on the United States and is not adhering to its enemies. Thus, it is not treason. Stop misusing that poisonous term.

# posted by

Dilan : 10:25 PM

No, cboldt, discussions pertaining to the right-wing views on TSP and its fallout are also deleted on Balkinization.

# posted by

Charles : 1:06 AM

Leaking a secret program is not levying war on the United States and is not adhering to its enemies. Thus, it is not treason.

P.S. to Dilan -- too bad you weren't Robert Hanssen's counsel . . . No, Bart.

# posted by

Charles : 1:11 AM

P.S. to Dilan -- too bad you weren't Robert Hanssen's counsel.

I am not saying leaking a classified program can't be wrong (it can be, although there's strong arguments that the leakers here did the right thing) and I am certainly not saying it isn't illegal (it is and can and has resulted in stripping of security clearances and criminal prosecutions).

But it is not treason, because it isn't (itself) levying war against the United States and it isn't adhering to the United States' enemies. Bart accuses people whom he doesn't agree with of being traitors for a very particular purpose, and he should stop.

# posted by

Dilan : 1:28 AM

Any ideas on why Patrick Philbin has been thus far silent? Where is he now? Anyone know if he has or will testify before SJC?

# posted by

drational : 7:03 AM

Philbin is a partner at Kirkland & Ellis, Washington, DC. See:

http://www.kirkland.com/sitecontent.cfm?contentID=220&itemID=8720

# posted by

Charles Gittings : 9:33 AM

One problem is that no one in the Administration has a clue how the game is played.

When the NYT story on the NSA broke, the correct response was official silence, coupled with an unofficial "oh please, you're going to believe what you read in the Times?"

Had they done so, administration supporters -- I do not name names -- would be denying the program's existence today.

# posted by

Anderson : 11:10 AM

dilan:

The term I used was "near treason."

The reason deliberately revealing a classified program to the enemy is near and not full treason is that, while they did indeed provide aid and comfort to the enemy, there is no evidence that the NYT and the leaker intended to do so. Rather, the evidence indicates that the NYT and their leaker were acting out of partisan political motives with a depraved indifference to the aid and comfort such publication provided the enemy. Depraved indifference is not sufficient for a treason conviction, thus the term "near treason."

You are correct that treason is a poisonous term. It is a poisonous term for a poisonous act.

# posted by

Bart DePalma : 12:38 PM

The latest Slate excerpt on Goldsmith makes a strong case for Gonzales lying to Congress.

"It seemed rich beyond my comprehension for a Gonzales-led Department of Justice to be pursuing me for possibly illegal actions in connection with the Terrorist Surveillance Program, I told the two wide-eyed FBI agents in Harvard Square."

Perhaps part of Gonzales resignation timing to preempt Goldsmiths SJC testimony that would have added weight to the perjury charges facing Gonzales?

# posted by

drational : 1:00 PM

The reason deliberately revealing a classified program to the enemy is near and not full treason is that, while they did indeed provide aid and comfort to the enemy

Bart, your supposed aherence to text has let you down. "Giving aid and comfort" to the enemy isn't the definition of treason. Only two things are treason:

1. Levying war on the United States; or

2. ADHERING to the United States' enemies, giving them aid and comfort.

In other words, simply giving "aid and comfort" is NOT treason, and conservatives have for at least 50 years taken this language out of context. Only ADHERING to the United States enemies-- i.e., JOINING THE ENEMY'S SIDE IN A WAR-- is treasonous. Thus, John Walker Lindh is almost certainly a traitor, because he joined the side of the Taliban in a war against the US.

That phrase "aid and comfort", if taken out of context, can make many acts of expression and political opposition and even journalism sound treasonous, but it isn't treason to do something that in some way assists an enemy. It's only joining up with the enemy that is treasonous.

You should learn this before you throw around the term.

# posted by

Dilan : 3:14 PM

Dilan:

There are three elements to the crime of treason:

1. Breach of allegiance -- The person must owe an allegiance to the United States. They must be citizens, naturalized aliens (permanent immigrants), or "nationals" (Samoa, Hawaii, Puerto Rico) and not aliens, on temporary visas, or foreign nationals who may reside in the U.S. (see this lecture on Immigration Law for more categories). The test is whether or not a person owes an allegiance to the U.S. government for any protection they may receive, not whether they are a citizen or resident.

2. Overt act of betrayal -- The person must commit some overt act, which is generally defined as any "material" aid or comfort to the enemy. Simply thinking disloyal thoughts is not treason. Words sometimes qualify; just as "fighting" words are not protected by the 1st Amendment, so are "treasonous" words punishable under Article 3, Section 3 and most state constitutions.

3. Intent to betray -- This is a specific mens rea element which requires that the government show the person engaged in the equivalent of purposely knowing. It's not exactly expressed this way, but Article 4, Section 2 of the Constitution prohibits conviction for treason unless the government can call at least two (2) witnesses who can testify as to intent or the offender confesses in open court.

Giving aid and comfort to the enemy is a violation of the second element and providing disclosing top secret programs directed at the enemy is most certainly aid and comfort.

The difficulty in proving treason is the third element, which requires two witnesses who can testify that the defendant purposefully intended to give aid and comfort to the enemy. I agree with you that the probable intent of the NYT and its leaker was to score cheap partisan points while exhibiting a depraved indifference to the fact that their publication of the means and methods of the TSP gave aid and comfort to the enemy. While the "devastating" results are the same, depraved indifference is just short of purposeful intent.

Thus, my use of the term "near treason."

# posted by

Bart DePalma : 5:07 PM

Bart:

The material you cite is not in any cases-- it appears to be a lecture from a law professor. (I might add that the issue of whether "treasonous words" are outside First Amendment protection is VERY much contested among scholars and has NEVER been decided by the Supreme Court. It certainly isn't the type of thing that one can casually claim the way your author did.)

There are only a handful of Supreme Court cases on treason, and they deal for the most part with the issue of scienter.

But I am not dealing with scienter. I am deaing with this language, "giving them aid and comfort", that you rely on and which is in the Constitution. The problem is, "giving our enemies aid and comfort"-- EVEN INTENTIONALLY-- is not treason. Only ADHERING to our enemies, giving them aid and comfort, is treason.

This is straight textualism. You are bamboozling here-- I want you to look at the TEXT of the Constitution and tell me how you read the portion about ADHERING to our enemies out of the definition.

# posted by

Dilan : 5:16 PM

Dilan:

How is intentionally providing aid and comfort to the enemy any different that adhering to the enemy? These are both the same mens rea requirement. Adhering to the enemy means intentionally providing aid and comfort to the enemy.

I think you are confusing adhering to the enemy with joining the ranks of the enemy like Lindh. While joining the ranks of the enemy certainly qualifies as adhering to the enemy, it is not the only treasonous adherence. Benedict Arnold committed treason by obtaining command of West Point as an American officer with the intent on surrendering it to the British. Arnold had not joined the ranks of the British when he committed treason. Rather, his treason was intentionally providing aid and comfort to the enemy by offering the British West Point.

# posted by

Bart DePalma : 5:58 PM

Bart:

I agree that adhering to the enemy doesn't necessarily REQUIRE joining its ranks. For instance, if an American decided to form a Fifth Column that allied itself with Al Qaeda in the United States, that would constitute adhering to our enemies, giving them aid and comfort.

But what you are missing is that this DOES NOT MEAN that the word "adhering" has no meaning, or means the same thing as giving "aid and comfort". Plenty of actions may assist the enemy WITHOUT adhering to it. And my problem with conservatives throwing around treason talk is that they seem to ALWAYS delete the "adhering" language, as if the entire definition of treason is giving the enemy aid and comfort, or as you would have it, deliberately giving the enemy aid and comfort.

In fact, the text is very clear. You have to show adherence to the enemy, not simply assistance to the enemy. And by ignoring the language about adherence, a lot of things that AREN'T treason start to sound like it.

# posted by

Dilan : 7:12 PM

Wait a minute! Now you are conceding that "the test is very clear"?! I thought you were just dismissing the material Bart cited because it "is not in any cases -- it appears to be a lecture from a law professor" (on a law professor blog BTW)?!

# posted by

Charles : 7:19 PM

Charles:

Are you imitating Emily Latella? I said the TEXT is clear, not the TEST.

And the text is clear. It says ADHERING to the nation's enemies, giving them aid and comfort. Right wingers like Bart who throw the word "treason" around omit the part about adhering-- and we now find out he claims that the word adhering is meaningless, that any aid or comfort IS adherence. That violates the longstanding canon that every term in a statute or constitutional provision must have meaning.

As I said, I think this is deliberate. If you are the type of person who LIKES calling your political opponents traitors, you'd PREFER a standard that just says if you give aid and comfort, you are a traitor, because you can stretch the concept of "aid and comfort" to lots of different situations.

But the problem is that isn't what the constitution says. And ADHERENCE to the enemy is much harder to stretch to apply to reporters who disclose secrets or war protestors who make ill-advised visits to enemy territory. So Bart and other conservatives simply ignore the word "adhering" and read it out of the Constitution so they can continue to accuse people they don't like of being traitors.

# posted by

Dilan : 11:02 PM

Dilan,

I don't understand your point here. Bart clearly said that it wasn't treason, but only "near treason," because they weren't adhering to the enemy. You keep replying by saying "But they didn't adhere to the enemy, so it isn't treason."

# posted by

David Nieporent : 4:35 AM

Is "near treason" a legal term?

# posted by

nicepooperzine : 10:20 AM

"Is 'near treason' a legal term?"

As with any crime, all elements of the crime (and I'm not sure I agree with "Bart"'s summation [or 'interpretation'] of the "elements" of treason here) must be met for there to be a crime.

Firing a gun (if proved) may well satisfy an essential element in a prosecution for murder, but that hardly makes the NRA nun-guts "near murderers".

Cheers,

# posted by

Arne Langsetmo : 1:31 PM

justwatching666:

arne's gratuitous swipe at the NRA is not an accurate analogy to the actions of the NYT and its leaker.

To restate, the NYT committed all the elements of treason except for the mens rea element. They exhibited depraved indifference to the aid and comfort they provided the enemy rather than the required purposeful intent.

This is analgous to a person who shoots into a crowd with depraved indifference and kills a member of the crowd. Under such a circumstance, that person would not be guilty of premeditated murder, even though the person is just as dead, because he did not purposefully intend to kill the member of the crowd.

Thankfully, our killer could still be convicted of second degree murder and brought to justice for the harm he has committed. Unfortunately, there is no lesser offense to treason with an lesser mens rea element as there is with homicide so the NYT cannot be brought to justice in this way for the harm which they have committed.

# posted by

Bart DePalma : 2:01 PM

"Bart" DePalma says:

To restate, the NYT committed all the elements of treason except for the mens rea element....

According to judge and jury "Bart" DePalma. Even granting "Bart" such status, my comment stands.

... They exhibited depraved indifference to the aid and comfort they provided the enemy rather than the required purposeful intent.

Where "Bart" digs up this "depraved indifference" standard is anyone's guess; I suspect he made it up himself. But seeing as he's already admitted that nor all elements of the crime were present (even with himself sitting in judgement before trial), we've left the realm of law, and "Bart"'s just talking about his own d*nm opinyuns and evanescent thought processes (or what passes for such). IOW, nothing more to discuss.

The good "Bart" soldiers on:

This is analgous to a person who shoots into a crowd with depraved indifference and kills a member of the crowd.

Ummm, and in many if not most states (albeit excepting New York, for one), this is a different crime (such as "voluntary manslaughter"), assuming that the person was truly indifferent, and not intending to kill). Even in New York, it is a different crime from second degree murder, but nonetheless a distinctly defined crime and not just some "almost murder" consolation prize for the prosecutors. "Bart" has yet to specify which other crime he's talking about here. If there is none, then there's no crime despite "Bart"'s disapprobation of the New York Times et al.

Cheers,

# posted by

Arne Langsetmo : 2:46 PM

Actually, I would state that Arne and Bart have the parallel wrong.

Firing a gun is not a crime, especially if one is practicing at a range, hunting, if it is considered reasonable force in self-defense or when properly used by law enforcement.

But, as Arne points out, Bart creates laws and crimes out of whole cloth in order to make his point. There is no basis to the claim that the NYT published its stories because of "depraved indifference"; instead, it could be more equitably argued that the stories were news, because the administrations actions were not supported by any actual legal precedent, and contravened laws that the administration had previously said were sufficient for the job. Stating that it is depraved indifference to decide that such mendacity and lawbreaking are newsworthy is laughable at the least, especially since the NYT decided to hold the story until after the 2004 election, which was politically beneficial for the administration. That depraved indifference to the need of the populace to know the character and actions of its Executive branch is far more serious than the later disclosure.

Also more serious is the depraved indifference of legal minds who crafted legal support the administration policies on legal grounds when apparantly every fresh, outside review has caused those underpinnings to be replaced as faulty. How valid is the legal defense of the administration's actions when the arguably partisan supporters of end goal of those policies keep saying that they found the theories used to buttress the claims to be "problematic", to the point where a significant portion of DOJ leadership was willing to resign. From what I understand of the revolving door of DC employment, that is tantamount to saying that the stench from the legal theory is bad enough to force people to leave the DC life entirely, which is about as serious as it gets in there.

# posted by

Fraud Guy : 3:05 PM

arne:

You often find the term depraved indifference in common law and statutes describing second degree murder. This term is usually placed within the knowledge category of the four modern mens rea categories.

The term depraved indifference relays what the NYT more accurately than the neutral term knowingly.

# posted by

Bart DePalma : 3:39 PM

We're off the point here. The reason what the NY Times did is not "near treason" is because ADHERENCE to the enemy is a central element of the crime. The NY Times and its reporters never adhered to Al Qaeda or any other enemy of the US.

Bart is distracting us by getting into a debate as to whether they intended to aid and comfort the enemy. But that's not the relevant question because "aid and comfort" alone is not the constitutional definition of treason-- adherence is an essential element and is what separates the types of things conservatives talk about as "treasonous" or "near-treasonous" from actual treason.

# posted by

Dilan : 3:50 PM

Fraud Guy:

Actually, I would state that Arne and Bart have the parallel wrong.

Firing a gun is not a crime, especially if one is practicing at a range, hunting, if it is considered reasonable force in self-defense or when properly used by law enforcement.

Clarification: I think I indicated that firing a gun is not a crime. In fact, that was a substantial part of my larger point. Sorry if that wasn't clear.

Cheers,

# posted by

Arne Langsetmo : 4:07 PM

Dilan,

You're right; since what the NYT did is not illegal, or unconstitutional. You could argue that since the 1st amendment was approved after the treason definition, that it supercedes or modifies the definition with its wording.

Congress shall make no law ... abridging the freedom ... of the press

vs.

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

What the NYT did is arguably reporting news of interest to citizens, who may have been illegally or unconstitutionally surveilled by the administration (not that they will generally be able to find out and/or attempt to stop such, thanks to overexpansive claims of state secret privilege). If adhering to citizens is adhering to the enemies of the US, then someone is proposing a completely different country and set of rules than the one I was raised to believe in.

# posted by

Fraud Guy : 4:12 PM

The reason what the NY Times did is not "near treason" is because ADHERENCE to the enemy is a central element of the crime. The NY Times and its reporters never adhered to Al Qaeda or any other enemy of the US.

Correct. The Supreme Court made this very distinction in Haupt v. US, 330 US 631, 635 (1947):

"We have held that the minimum function of the overt act in a treason prosecution is that it show action by the accused which really was aid and comfort to the enemy. Cramer v. United States, 325 U.S. 1, 34, 65 S.Ct. 918, 934. This is a separate inquiry from that as to whether the acts were done because of adherence to the enemy, for acts helpful to the enemy may nevertheless be innocent of treasonable character." Emphasis added.

# posted by

Mark Field : 4:14 PM

Arne,

Sorry, misread you a bit, there. I was thinking that firing a gun may be a part of proving the crime, but even if firing a gun is proven, does that mean that the suspect fired the gun that fired the bullet that caused the injury or death. It could still be considered circumstantial evidence if argued by a competent attorney.

# posted by

Fraud Guy : 4:17 PM

"Bart" DePalma:

You often find the term depraved indifference in common law and statutes describing second degree murder. This term is usually placed within the knowledge category of the four modern mens rea categories.

As I stated, murder rules vary considerably from state to state. As I indicated, it is up to each legislature to define the crimes, and perfectly acceptable for each to define it with whatever mens rea they choose with respect to any element of any particular crime. You have yet to show any law, case, or opinion that states that treason has a "depraved indifference" mens rea element (and in fact you seem to concede the point with your talk of the non-existent crime of "near treason"). Absent that element, there is no crime (even if someone were to choose you as judge and jury).

The term depraved indifference relays what the NYT more accurately than the neutral term knowingly.

That personal opinion along with $3.00 and change will buy you a latte.

I don't think anything more need be said. There is no argument. You may have the "last word" on this side discussion.

Cheers,

# posted by

Arne Langsetmo : 4:45 PM

"Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

Standard rules of interpretation would make the "giving them aid and comfort" a subsidiary condition of "adhering to their enemies". If the intent was to make any of three separate acts criminal, the construction would presumably have been thus:

"Treason against the United States, shall consist only in levying war against them, [] in adhering to their enemies, or in giving the [enemies] aid and comfort."

Cheers,

# posted by

Arne Langsetmo : 4:50 PM