This "document" has all the charm and logic of the Turner Diaries.

I think you should worry more about leakers within government than the publishers of newspapers.

And regardless of the activities of newspapers, it will be impossible to prevent leaked info out into the public sphere in the age of the internet.

Get real...you're crusade is pure foolishness and doomed to fail; it's political nature is clear. Pure modern-day Republicanism.

But go knock yourselves out with it, OK? Maybe it'll keep you off the streets and behind the keyboard for a while.

Next topic for serious consideration, related directly to the question of who should be held accountable for allowing terrorist acts to occur:

Should President Bush be held criminally negligent for ignoring intelligence, famously delivered to him in a PDB entitled "bin Laden Determined to Attack Within US", that could have helped prevent 9/11?

That would be an interesting precedent.

A different administration might make all businesses found to release carcinogens jointly liable for every american case of cancer. And every corporation found to have contributed to global warming could be held liable for hurricane damages. And so on.

News media that are confirmed to have contributed to support for the iraq war could be jointly liable for damages by american casualties and their survivors.

Then all we need is a way to enforce it selectively, and we're set.

This would be a very interesting precedent, but I don't think it would be in the best interest of the USA.

"Should President Bush be held criminally negligent for ignoring intelligence, famously delivered to him in a PDB entitled "bin Laden Determined to Attack Within US", that could have helped prevent 9/11?"

Only if Clinton should, who had literally 10 times longer to deal with OBL than Bush did. 8 months in office you tend to be worried about little things like picking a cabinet and proposing a budget. 8 years you might be expected to sneak some time in to think about who blew up the Cole and the embassys on your watch, right?

Trent:

Well, it's certainly a way to retaliate against free-riders; and it's a vast improvement on the alternatives. I notice that the kinderheim crowd has already showed up to pooh-pooh it, on the theory that society can be costlessly perfected, and that acts ought to be free of consequence, like bowel movements.

Walter:

I cannot believe you still think Bush lied. Please educate yourself. That a minority in government disagreed with some of the intelligence reports does not mean Bush lied.

If the publisher can be held strictly liable without proof that its actions in fact caused or contributed to the attack, then can the publisher seek relief by proving that a non-publisher was the true cause or a greater contributer to the attack? For example, the newspaper wants to prove that a specific airline was negligent in failing to screen passengers. Would this constitute an affirmative defense, or would a right of contribution exist? Fairness would seem to require it, but it would appear to create a significant demand for confidential government documents to prove or disprove all of the causes and contributing factors.

This is silly.

Focus on getting the leakers. They are the ones who had taken an oath to safegard that information which the newsvermin had not. Pass legislation that allows you to force the reporters to give up their sources when they publish classified information or go to jail for a time frame equivalent to what the source would have gotten.

Betraying your oath should not be without cost. If you think what information you are leaking is so important, you should be willing to risk the jail time. Or go to your Congressman.

What a terrible idea! You can't just grasp any stick to whack your enemy (and yes, I think the NYT is an enemy of our survival) without at least a brief thought of what it might do to the one wielding it. And there, the Lawyers Full Employment Act™ aspect alone ought to give you pause.

For my part, I'd rather take a treason approach to all this, despite the difficulties. And yes, I do think Mr. Keller and some of his associates (and the leakers, too, certainly) deserve a stint behind bars.

Mark Flacy has the right of it, but the bottom line is that the NYT and LAT arent going to hand over their sources without a stink, so you're going to see some reporters spending some time in prison ala Judith Miller. Now i grant you that the exposing of the woman who drove to Langely every day for work as a CIA agent was the biggest most dangerous security breach in United States history, but the precident stands and applies in this case as well. Put Keller and his lackeys on the stand and demand they expose the leaker(s) with the threat of jail time.

Now this may not be as emotionally satisfying as trying to pin a treason charge on them. But lets be realistic here, you arent going to get these guys for publishing secret information they havent been sworn to protect (which may very well be constitutionally protected anyway), much less treason. Its just not going to happen.

As emotionally satisfying as trying to punish these nitwits would be, the real goal is to stop this from happening again, not to give them a soapbox the entire MSM/left will rally to and create a circus out of. Worse, this would probably end up hurting national security even more as the lawyers go nuts and all sorts of things come to light.

The better way to do that is to make it not worth publishing this stuff unless it is such an important story it's worth jailtime to print. This bank story doesnt remotely rise to that level- let the writers ponder whether a few months in prison was worth it just to take a shot at Bush for something not even illegal. Plus you eventually may get to the leaker, which would make other leakers think twice.

PD Shaw,

That's what "joint and several liability" is for - it's a legal word of art. Each person or entity who publishes classified information that is not already in widespread public knowledge is liable for ALL the damage caused by terrorism for ten years after the publication. No one plaintff can recover more than his/her/its losses, but if everyone chooses to pile on the New York Times alone, it has to pay for it all alone.

As a practical matter, given the speed of news transmission due to the internet, only the first few publishers of any given item will be liable due to the "widespread public knowledge" limitation. For the recent tracking of terrorist financial transfer stories, only the New York Times and Los Angeles Times would be liable.

Well what do we have from the Nuke Iran crowd this morning? More of the same silliness.

Just curious though, would Bill Kristol also face civil liability?

I can hear it now. Sure he published top secret information, but it didn't really hurt the war on terror.

Joe's new theme song...

Look what they've done to my blog...

As a conservative, I'm skeptical of any solution that involves more laws rather than fewer.

I like the intent, but it would never be proposed, let alone be passed into law.

Though there is nothing holding back a civil suit against the Times (or others) if say a family member or victim was to bring a civil tort against them for damages as a result of a leak or publishing of information that resulted in damages.

For instance, lets say the treasonous scum at the NYTimes published a story about a witness in a witness protection program that included information about their location, and in turn that witness was killed. I believe the family members could hold the Times liable, if a reasonable person believed that but for the publication of that information, the witness would have avoided harm.

It would be an interesting case to say the least. And I'd have to hitup Lexis/Nexis or Thomas to see if there is relevant case history for such a civil case, but I don't have free access anymore.

1. Subpeona the reporters and demand they reveal their sources; jail them when they refuse, a la Judith Miller.

2. Prosecute the leakers to the fullest extent of the law.

This will have a chilling effect on what reporters choose to report on, if they know that by leaking the details of a classified program, there is a real and imminent threat of jail time in their immediate future.

Second, if any reporters do reveal their sources (not likely in my view, at least not in the short term), those who might be inclined to leak might be less inclined to do so if they think their anonymity will not be guaranteed, and they'll be held accountable for violating the trust placed in them.

Walter,

What should the president have done with that PDB? Perhaps tap the incoming overseas calls of suspected terrorists? Check who those terrorists called in response? See how money was being transferred to support there operations?

Oh wait...All those things are bad, aren't they?

So what should the president have done?

No amount of logic will break through the impenetrable ignorance of Walters Ridge. I think we all learned that yesterday.

A followup to Walter, with a little less snark...

There's clearly a tension between civil liberties and security. I won't fault anyone who looks at the tradeoffs and draws the line differently. I find great fault with people who refuse to accept that there's a tradeoff being made.

You can't (in good faith) simultaneously hold that the executive branch can't run intelligence operations in secret and expect preventive action against terrorist threats. Pick one, you can't have both.

Tom:

I understand "joint and several liability," what I might be having trouble understanding is causation. It sounds like causation is irrelevant because its too hard to prove. My question involves the situation in which the defendant can prove that something besides publication of classified information was the cause.

Here's my hypothetical. Let's say a newspaper publishes the classified airplane routes of CIA agents traveling to Romania. A year later, Indonesian pirates ram and explodes an oil tanker into an L.A. port, killing dozens and destroying numerous buildings. The subsequent investigation reveals a small cadre of al-Qaeda inspired hoodlums, an ambivalent Indonesian government, a bribed customs official, and a ship owner who failed to report the piracy to avoid a hike in insurance premiums. The newspaper gets sued. Ostensibly, we don't know what chain of events might connect the CIA activities in Romania to the events in Indonesia. But to what extent does the newspaper get to point the finger at someone else, either to eliminate its liability or reduce its share?

Is this a way to avoid going after the leakers? Are you avoiding that because of the leaker-in-chief/deserter-in-chief chimpanzee has put himself above all law, and his people beyond all law, so you've given up on going after them, and decided to go after the smaller fry, in order to get someone (kind of like prosecuting a couple enlisted flunkies for the torture scandals, because all the high-level guys who gave the orders are immune)?

I have to agree that the best thing to do in the short term is to agressively prosecute the leakers, and to do some serious arm-twisting to get reporters, editors, and publishers to give them up.

Let's face it; no law was violated in the SWIFT monitoring program (all the publications reporting on it concede the point) but the people leaking about the program definitely broke the law, and increased the risk that Americans will be attacked by terrorists. I haven't heard a single argument that justifies blowing the program that boils down to anything other than the guv'ment was doing it, therefore it was a bad thing to do. (This most definitely includes Keller's "public inteterest" defense of the publication decision.)

Shorter form for the tinfoil crowd: please explain exactly which civil liberty was being infringed by monitoring the SWIFT network, and I'll take your righteous outrage a bit more seriously.

Anyone who knows who the leakers are (and that goes all the way up to the publishers of the papers) who doesn't give up the names should go to jail. It was good enough for Judith Miller, I think it's good enough for Keller and/or Sulzberger too.

And I just love the talking point that the leakers must have been political appointees in the administration. Anyone who's been paying attention to the sieve that is our State Department knows most of the leaks are anti-Administration, and apparently come from carreerists who resent having to take orders from the political yahoos.

Gee, considering how counter-intuitive this meme is, and yet how prevalent, you might think someone was sending out super-secret marching orders for the Real Democrats to follow....

here's an idea, don't put the NYT out of business, let's put so much pressure of them that they change editors and their attitude toward this country. Nothing forces a group of elitist snobs to change their opinion like a lack of income.

Well, Mr Poling, it really isn't worth our while to locate which laws the SWIFT program violated (a bunch of foreign privacy laws looks like a good uneducated guess, though), when even if I supplied everything down to the page in the US Code, your ilk replies "The Constitution is not a suicide pact."

We must show the National Will to destroy our system of justice! Then Osama will see we mean business!

Maybe I'm missing it but how do you get around the probability that the NYT would claim, likely correctly, that it was exercising a First Amendment free speech right in publishing. I don't believe you can be held liable (civilly or criminally) for exercise of such a right.

PD Shaw,

Under joint and several liability, the NYT could not reduce its share even if Rupert Murdoch personally helped the terrorists. This is a common rule of tort liability.

We had a special law passed in California reducing the liability of public entities to their proportionate share of causation for dangerous conditions of public property. A problem had arisen when an uninsured or underinsured motorist had caused a traffic accident where poor visibility or road conditions (for which a public entity was responsible) also contributed to the accident. In those instances public entities which were, say 5% liable, had to pay almost all of million dollar plus judgments. A special rule was enacted for them that they were liable only for their proportionate share of causation.

Absent a special rule like that, it is normal for each and every defendant subjected to tort liability to be responsible for all of a judgment, subject to a limit that the injured plaintiff can't recover more than the total judgment.

By having the statute specifically state liability is joint and several, the NYT could not put on any defense related to causation, even for a random terrorist act like the Egyptian attacking the El Al ticket counter at the Los Angeles airport.

I'll explain the origin of the legal theory underlying my proposal in a future post. It originated, believe it or not, 20 years ago at a civil defense conference at the Alameda Army base in Oakland, California, had nothing at all to do with terrorism.

"I don't believe you can be held liable (civilly or criminally) for exercise of such a right."

You are almost certainly right (almost because the SCOTUS could plausibly uphold the espionage act if reporters were prosecuted under it, but its never been done before and even this court would likely balk at the 1st amendment implications- i also believe it requires intent to harm the nation). Treason is out as well as it requires intent.

I recommend dropping the blustering. The writers and editors will never be prosecuted for this- and ultimately that is a good thing. But that doesnt mean they shouldnt have to face consequences. Calling them before a grand jury and forcing them to choose between jail and revealing the leaker will provide excellent incentive for Media to excercize greater care with national security stories. Were this a real abuse of power expose, the public would rise up in outrage at an investigation against a whistle blowers identity. But no-one is going to be outraged about this paultry story aside from the moonbat left and the NYT itself. The more they argue the more middle America will turn on them in this case.

Gabriel, I think you are absolutely correct; my gut feeling is that the Times is absolutely covered by the First Amendment (or more correctly, would and should be found to be covered by the First Amendment) in publishing the SWIFT story. Civil damages ae a lot murkier, but even there as I understand it you have to show positive consequential harm (meaning the speech directly caused injury to the agrieved party) and I don't think Tom Holsinger's forumlation comes close to that standard.

On the other hand, Freedom of Speech doesn't mean freedom to shelter a felon, and each and every government employee who has signed an oath of secrecy and then leaked should do hard time. Period. I don't care which party is in power (AJL, consider medication) or how "secret" the secret is. And if the reporters won't give up the felons, then welcome to contempt of court, and welcome to three hots and a cot.

Andrew J., respect for the law is part of what being an American is all about too. "If it feels right, do it" isn't a phrase found in the Constitution.

Gabriel,
The First Amendment contains no immunity for the consequences of speech ( other than the NYT v. Sullivan rule raising the burden of proof in defamation and related cases ).

Thus we have both civil and criminal actions that can be based entirely on "speech". And recall that it is clear that the press has no "special" rights not possessed by all of us equally.

Mark and Mark:

I too believe that finding and prosecuting the leakers is the best course of action. Regretfully, the NYTimes and its reporters and editors are doing what they normally do. The old story of the Scorpion and the Frog comes to mind.

I don't think their ilk will ever truly understand why the public is outraged at their behavior, and this is mostly because they are an isolated elitist culture whose intellectual cocooning has built up a wall of ignorance. Think Pauline Kael.

I know that ongoing investigations must be taking place, and the best course of action I can foresee would be vigorous prosecution of leakers, and thus the subpoena of the reporters/editors information on sources, which in this case is perfectly justifiable, contrary to what the angry left thinks.

"Well, Mr Poling, it really isn't worth our while to locate which laws the SWIFT program violated (a bunch of foreign privacy laws looks like a good uneducated guess, though),...

Three points, then I'm dropping this quite amusing thread:

It ain't worth your while because it didn't violate any United States statute. I love it when transnat progs who scream for sources when it suits them get all disdainful of details when it doesn't. (If any laws had been violated, bet your bottom dollar the Times would have printed your laundry list for you.)

As to foreign laws, who the hell knows outside the State Department? (But again, all things considered, the leakers had access to that kind of info too, and it probably would have been included in the story, instead of just waved at with "raises troubling questions.")

Finally, part of the reason for covert ops like this is to cover our friends' asses too. We got access because allies allowed us to have access, but wanted us to be discrete about it. Well, guess what? All your rhetoric about "global co-operation" as opposed to "cowboy unilateralism" just got a bit harder, because some of our friends have just been pimped out by our secret-true-patriots in the cause of damaging the current Administration. Who give a crap about intellectual consistency when there's a fascist government to pull down?

This post explains the legal history of the strict liability theory used in my proposed statute.

The American legal system has long had a problem with “diffuse” torts – ones in which the wrongful acts definitely contribute to the injuries of multiple victims overall but where the precise mechanism of causation for any given instance of injury cannot be definitely proven. The legal system requires plaintiffs to prove it more likely than not that a given wrongful act contributed to their injuries.

25-30 years ago there were quite a few lawsuits over radiological injuries caused by fallout from open-air nuclear weapons tests in Nevada which took place in 1950’s. This caused cancers, thyroid problems, etc., for many people in Nevada and Utah. John Wayne was arguably the most famous victim – many of his Westerns were filmed in a particular canyon in Nevada or Utah where a lot of the fallout was deposited. A alarmingly high proportion of other actors and film crew who worked in that canyon suffered cancers and other medical problems for which significant low levels of radiation exposure were known causative factors.

It was discovered through Freedom of Information lawsuits in the 1970’s that the federal government was aware in the 1950’s that fallout from its Nevada open air nuclear weapons tests would likely cause radiation-related injuries to civilians in Nevada and Utah. As in their own experts telling them that the tests would certainly kill and injure hundreds or thousands of Americans who were wholly unaware of the danger. And the federal government concealed this information at the time.

Many of the victims and their families sued the federal government for this in the 1970’s. They all lost because none could prove that a given test caused their particular injuries, though causation for the populations of the most afflicted areas was statistically obvious.

I was a civil defense volunteer in the 1980’s and attended civil defense conferences. At one of those conferences, at a military base in Alameda, California, one of the lecturers was a medical doctor with an advanced physics degree who had testified as an expert witness for the federal government in its successful defense of those lawsuits. This made him familiar with tort law on causation. He lectured my group – all but me were state and local government emergency service employees – on fallout injuries.

He did not at all expect to be braced by a litigator familiar with both the fallout lawsuits and radiological injuries. We had a fascinating discussion for about an hour following the conference on how the legal rules for tort causation could be changed to permit recovery for diffuse injuries.

We agreed that a variety of strict liability was the only way liability could be created, and that this could only be applied by proportionate liability based on a grouping of all potential victims and all possible causes of their injuries, i.e., the defendants would be only a little bit liable, per person, to a lot of people. Our discussion mostly involved lawsuits for environmental-related injuries - pollution and such. We also agreed there was no way in hell that such legal changes would ever happen.

I remembered that discussion in writing the article for this thread. It just is not possible to link any given terrorist act to the New York Times’ publication of classified information about surveillance of terrorist financial transactions and their electronic communications, but it is certain that such publication has materially impeded the surveillance and so will help foster future terrorist acts overall.

But strict liability would do it – bypass causation entirely and assume causation.

It could not happen to a more deserving organization.

Times delenda est.

Andrew J., respect for the law is part of what being an American is all about too.

This is indeed about respect for the law versus respect for George Bush, Fearless Leader, the Giant of the Pecos.

"Bruce Fein, a Republican legal activist, who voted for Bush in both Presidential elections, and who served as associate deputy attorney general in the Reagan Justice Department, said that Addington and other Presidential legal advisers had 'staked out powers that are a universe beyond any other Administration. This President has made claims that are really quite alarming. He's said that there are no restraints on his ability, as he sees it, to collect intelligence, to open mail, to commit torture, and to use electronic surveillance. If you used the President's reasoning, you could shut down Congress for leaking too much. His war powers allow him to declare anyone an illegal combatant. All the world's a battlefield -- according to this view, he could kill someone in Lafayette Park if he wants! It's got the sense of Louis XIV: 'I am the State.' "

Does Fien have a book coming out soon?

Why is it that those in opposition to Bush, etc. always trot out major league kooks to support their positions? Fien only becomes credible when hes supporting their "kos celeb", of course back during Iran/Contra he was a member of the evil empire, but now he's Kaptain Kredibility.

Maybe you can quote Ramsey Clarke next time, after all, he wasn't just a Deputy AG, he was the AG.

I remember how Tom was spitting bullets over this one as well.

But hey, does anyone really expect that a partisan hack would actually admit to being a partisan hack?

Gabriel,

The 1st Amendment says governments can't abridge free speech rights. It doesn't say that private individuals can't - that's why libel laws, trade secret laws, etc., aren't unconstitutional.

The 1st Amendment doesn't enter this picture at all.

Davebo,

Personal attacks establish that you have little of substance to contribute, and are convincing evidence that you know you've lost the argument.

We will be much safer when the New York Times ceases to exist. It has become an Al Qaeda counter-intelligence agency.

Times delenda est.

Gabriel,

"It seems as if The New York Times is revealing all our national security secrets. But relax -- they have their limits.

If The Times learned that U.S. troops were force-feeding Gitmo detainees with Coca-Cola, they wouldn't publish Coke's secret formula. They might get sued. If there's a CIA program that uses offensive cartoons of Muhammad to communicate with agents, they'll keep mum, lest they have to publish the images. But secret law-enforcement-type programs as classified as the access code to The Times' top-floor elevator? Fair game. You've got the right to know."

Personal attacks establish that you have little of substance to contribute, and are convincing evidence that you know you've lost the argument.

Personal attacks? So you did condemn the linked actions right?

Or is it just a tad inconvenient.

I posited that your outrage on this issue is based purely on partisanship. I then provided an example of a much much worse instance of persons leaking sensitive data and allowed you to share in my condemnation of it and possibly provide some insight to your thoughts on that case at the time.

Given that you refused to do either and instead lamented the horrible personal attack, I'd say the point I was getting at was substantiated by your silence.

I'm not happy with the Times publishing this story. I think it was a mistake on the part of the editors. But as such things go this story has drawn an inordinate amount of selective indignation and pointing that out seems more than relevant.

AJL, I hear you on the whole "maybe it sounds better in the original German" thing. Let's face it; the whole "Dubya Youth" movement is really giving me the willies. You can't catch a cab now in New York because of all those Cabbie Relocation Camps set up out in South Dakota. With Ward Churchill losing his job, how long before ones or twos of other plagiarizing, resume padding, anti-Bush academics get forced onto the lecture tour? It's like you can’t even send a funds transfer of a large sum of money to Nigerian government officials without The Man getting all interested. I mean, these are dark times, and I understand your concern over the loss of all the freedoms we used to love but can't quite describe now that they're gone.

Dark days indeed. Good thing the threat from non-state actors using unconventional methods and maybe WMDs to attack us on our soil is just a fantasy concocted by our unelected government to keep us from paying attention to the real threats.

(I know, I promised to stay away, but I always have such fun responding to those taking potshots at my character.)

I recommend dropping the blustering. The writers and editors will never be prosecuted for this- and ultimately that is a good thing. But that doesnt mean they shouldnt have to face consequences.

"The power to tax is the power to destroy." The purpose of Tom's proposed law is to destroy news organizations that publish classified information. Put a "tax" on such publication, they can be sued by anybody who can plausibly claim to have lost money due to terrorist action in the USA.

But why would a US government stop there? Why not let people sue any news organization that publishes something the government doesn't like? Why not open any organization they want to destroy to litigation by anybody who's suffered damage from, say, hurricanes?

Or how about this -- the government wants to destroy some organization so they declare that anybody whose taxes have gone up this year or any time in the future can sue them for the difference. That ought to be pretty popular.

When there's no need for causation, the skie's the limit. Destroy anybody you don't like

This legal dodge isn't the only possible approach. "The power to tax is the power to destroy." Why not just put a tax on publishing classified information. Say, a hundred million dollars per secret. Would it take more than an IRS ruling? Of course it might get fought out in the courts for a couple decades and maybe eventually overturned, but by that time there could be lots of other legal mechanisms in place.

The government could tax any other speech they don't like also. Sure, we have constitutional free speech, but it gets regulated. Broadcast media went a very long time paying fines for any use of certain words. We can have free speech and also heavy fines for criticising the government in broadcast or print or blog, and the government decides whether to fine you after the fact, unless you submit your material to them and get prior approval. That doestn't violate free speech any more than the censored words.

There are lots of ways to clamp down on dissent and argue that the Constitution isn't being violated. Chances are we'll see a wide variety of them used. We can't afford to have citizens acting against the national interest while we're at war, so it's important to stop them when they do something the government decides is against the national interest. That particularly includes finding out about anything the government doesn't want them to know. If you spread any information the government doesn't want you to spread, the government will figure you're acting against the nation since if they thought the nation would be better off knowing it, they'd have spread it themselves.

You know whats funny, is that civil actions agianst a paper like the Times would probably be the only impetus for them to finally call for tort reform.

"This is indeed about respect for the law versus respect for George Bush, Fearless Leader, the Giant of the Pecos. "

Come on Andrew, all this breathless, hyperbolic drama on the imperial presidency is bunk by any historical standard. Simple question for you, is Bush worse than Woodrow Wilson was?

Sedition Act
"The Sedition Act forbade Americans to use "disloyal, profane, scurrilous, or abusive language" about the United States government, flag, or armed forces during war. The act also allowed the Postmaster General to deny mail delivery to dissenters of government policy during wartime"

Espionage Act
"The Espionage Act of 1917 was a United States federal law passed shortly after entering World War I, on June 15, 1917, which made it a crime for a person to convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies. It was punishable by a $USD 10,000 fine and 20 years in prison."

Both these acts held up in court, Eugene Debs was sentenced to 10 years and disenfranchised for life for making an anti-war speech. If the year was 1917, Keller would be in prison right now. I don't think that is right, but lets have a little perspective here. The government listening in on Al Qaeda phone calls and tossing their overseas bank records doesnt touch the things that have gone on in wartime in the past (and oh, usually by Democratic presidents).

Gabriel, once again you are correct. :)

Gabriel - consider this as a "wedge issue" which splits the trial lawyers from the rest of the Democratic party.

I am surprised, though, that no one has noticed that those who leak classified information without authorization (i.e., the guys with the security clearances who violate their oaths of secrecy) will have civil liability for the rest of their lives in the event of another 9/11. Judgments against them won't be dischargeable in bankruptcy. It won't matter if they are not criminallly prosecuted - any American, business or public entity injured by foreign terrorism will be able to sue them in federal court for damages.

Many here advocate going after only the leakers. My proposal would nail them big-time, and make it easy to do so. So why not take that and run with it? It would be easy to limit the statute to persons who have signed secrecy agreements.

That's the point of having this discussion. While I feel that any who publish classified information should be liable, I suspect there is a unanimous opinion that at least the leakers should be subject to civil liability as I propose.

Is there anyone here who feels that those persons who have signed secrecy agreements, and leak classified information without authorization, should be subject to civil liability as this article proposes?

oog - preview is my friend.

Is there anyone here who feels that those persons who have signed secrecy agreements, and leak classified information without authorization, should NOT be subject to civil liability as this article proposes?

"Is there anyone here who feels that those persons who have signed secrecy agreements, and leak classified information without authorization, should NOT be subject to civil liability as this article proposes?..."

(sounds of crickets chirping)

This "document" has all the charm and logic of the Turner Diaries.

I see Walter has read the Turner Diaries. Not surprising; you can get a copy of it at any good-sized anti-war rally these days, right alongside The International Jew.

I'm with Gabriel - I can't believe that Democrats are suggesting limits to civil suits. Did the tort lawyers all die last night?

#39 Mark, well done, jolly well done.

Actually, Tom, I think the whole civil liability angle is a bad approach.

1. As much as it makes my brain hurt thinking about it, I actually agree with J Thomas that this creates a stick that is way too easy to abuse. Sure, it starts out narrowly defined, but pretty soon you've legislation that allows children of dead fatties to sue Macdonalds.

2. Do we really need a huge new trough for ambulance chasers?

3. Even within the bounds you've set, it provides even more incentive to Administrations and Congresses to get fuzzy about what is or isn't a war. I don't have a doubt that we were at War with Saddam's Iraq; I would have liked to see the formal mechanism specified in the Constitution used to declare it so, and not the weasley "declaration lite" that has been in vogue the last 60 years.

4. What the leakers did is already a felony. My guess is that 10 or 20 high-profile cases going to Levenworth would be enough to turn the flood into a trickle.

5. By their positions, the leakers have access to sensitive and/or damaging information. Keeping leakers from doing even more damage from the witness stand is probably a huge reason leakers currently don't get prosecuted. What would be a hard job in criminal court would be much harder in a civil court. It's easy to imagine a case where a bogus plaintiff brought charges against specific leakers with the intention of putting even more sensitive information on the public record.

6. Finally, I think the Times (and most of the elitist MSM) will eventually change, or eventually die, all by itself. The institutions will either figure out why its audience and influence is waning, or it won't.

For those still grounded in reality, and not lost in the fantasy land of Republican partisanship, consider the following:

Bush administration has revealed - on their own - much more about transaction targeting

The only thing that is new is - guess what? - that the NYT AND WSJ (funny how that gets forgotten) are revealing that there is NO OVERSIGHT.

That the programs take place in a vacuum.

There is a REASON why the Bush administration isn't and WILL NOT engage the court in this process. Because then this exposes the lack of accountability, which the Bush administration tries so hard to maintain. Secrecy, for ME, but not for THEE, is the motto of this administration.

So - one relevant question is - what details of the Times article gives terrorists information they didn't have before? What's the DAMAGE? Because if I recall, there were a SLEW of stories after 9/11, detailing the operation tracking of electronic transactions that were beginning.

The other question is - do you guys REALLY want the government to dictate what the press can and can't write about? Do any of you have any idea where that leads?

do you guys REALLY want the government to dictate what the press can and can't write about?

Are you bringing up that goddamn Valerie Plame business again?

"...The other question is - do you guys REALLY want the government to dictate what the press can and can't write about? Do any of you have any idea where that leads?..."

Can you understand that most of the commenters here understand you? Nobody wants a police state, and I can't think of anybody here who would put up with it.

At the other extreeme, however -- does classified mean anything? If not, how do you expect the country to operate?

Obviously, there must be some middle ground.

Freedom of speech is based on a great societal good for openess and public discourse. On very rare occasions, immediate disclosure and discourse do not serve the greater good. I disagree with Mark (#49). It seems to me that some publications of secret materials can cause societal damage. That damage should be assessed and penalties levied in an appropriate fashion.

Please keep in mind that it's not just the NYT, guys. What we're asking is if somebody came to you as a blogger with secret information that could lead to loss of life. Should I be able to publish willy-nilly? Or should I at least have to start thinking about possible civil reprucussions?

Didn't Clinton VETO the law that would have made it a crime to leak in violation of Non-disclosure agreements? I somehow remember something to that effect.

I wish the administration would make a more public airing of their investigations into this affair, and the leaks in general. I bet one of the reasons Goss got the boot was he dragged his feet. Lets hope Hayden doesn't and puts an end to the star chamber working within CIA.

As for Condi and State, I haven’t heard much about her putting the foot down on the Clinton holdovers. I have several contacts at State, but they are mostly in the field and far away from the daily scoop.

FBI seems silent as well. Yeah I know "we don't comment on ongoing investigations" but still, you leave yourself open to criticism by appearing as if you're doing nothing.

Gonzales should have a press conference to highlight exactly what course of action is being taken to prosecute leakers. Otherwise, the appearance of "doing nothing" will stick and the Press can and will shape the story to their advantage.

Mark P.,

Your Nos. 4 and 5 are contradictory. One of the problems deterring criminal prosection of leakers is that they can defend the charges with a threat of disclosure of more secrets through misuse of the criminal discovery process.

I propose private enforcement - let the victims of terrorism sue the leakers. Strict liability takes proximate cause of the picture such that no defense based on other secret information is possible. Liability is created by (a) the wrongful disclosure (leak) of classified information, (b) the leak being certified as material and unauthorized by the President, and © damage to the plaintiffs caused by an act of war or foreign terrorism.

The only secret information which might possibly be involved in defense of the action would be the identities of the defendants' superiors with power to authorized the disclosure of classified information, which is easy for a court to order kept confidential, and whether the act of injury was an act of war or foreign terrorism. As a practical matter the federal government will certify the acts as being those of foreign terrorists - it took the feds about 18 months to say that the nutball Egyptian's attack on the El Al ticket counter at LAX was a terrorist act, but they got around to it eventually.

Mostly I'm aiming at deterring future unauthorized publication of classified information. Knowing that they can be nailed for everything they have, with no defense being possible, will "wonderfully concentrate" the minds of potential leakers. And it will deter news organizations too.

But I still feel we'll all be safer when the New York Times is dead.

Times delenda est.

and HR, you love to throw around "reality" yet you refuse to face the reality of our current situation. your rigid line of thinking and this faux non-partisan angle you keep pushing reeks of well, hypocrisy.

I for one am not privy to the details of the program, but those people who are, seem to think that damage has been done, and they are not all partisan bush loving hacks. the bigger issue, and the one that gets most of us so pissed, is that people that most definitely do not have all the facts, are in turn deciding on their own that the release of this information will cause no damage.

So I'll be curious to know after the investigation is done, exactly how much damage has been done, because based on the statements of those who oversee the program damage has been done. To what extent we don't yet know, and we may never know fully, but what we do know is that no one put the NYTimes in charge of our National Security, and the arrogance they have shown during this entire affair dwarfs anything that Team Lefty can accuse the Bush administration of.

"The other question is - do you guys REALLY want the government to dictate what the press can and can't write about? Do any of you have any idea where that leads?"

Where did it lead us in 1918 when the Sedition Act was passed? Or the Alien and Sedition acts of 1798? The Office of Censorship in 1941 was just an executive order! What about that? These things were orders of magnitude more extreme than anything Bush has ever dreamed of, yet I dont recall the Great Purge of 1921 when the people had to rise up and take down Emperor Woodrow I. Was that necessary in whatever dimension you are currently occupying hypocracy?

Gabriel Chapman,

I think you have misunderstood me.

"yet you refuse to face the reality of our current situation. your rigid line of thinking and this faux non-partisan angle you keep pushing reeks of well, hypocrisy."

How? I pointed out that the Bush administration has been rather free in detailing the transaction following programs, and then asked - and I really AM ASKING: What's the damage? Operationally? What was "revealed" that wasn't revealed previously? By either the administration while showing that it is doing its best to go after terrorists THROUGH their transactions, or through other sources?

So again - it is a QUESTION.

And from the content in the NY Times article, and the content that has been revealed years before - it doesn't look as if there is a THERE there. Again, the only thing that seems to be "revealed" is that there is no oversight.

DM #52,

I have no problem with this comment. I would agree.

What's missing is the recognition that the current "controversy" for the most part is for POLITICAL gain, and doesn't look substantive.

However, I haven't looked deeply at this yet, as I was one of those who thought that the ties between - for example - the Saudis and terrorists SHOULD be looked at, and there wasn't enough of this going on since Bush and co. were buddy-buddies with the Saudi regime.

The problem is accountability. To this administration, everything is political, nothing is free from politics. Not war, not subverting the constitution, nothing.

And this is another example of using a process - not only to find terrorists, which we ALL agree with - but possibly also as a political cudgel.

And the tracking of transactions should NOT in ANY WAY ever be a political tool in the hands of Karl Rove.

And without safeguards or accountability around that process of transaction tracking, I would not be surprised if every Visa purchase by a House or Senate democrat isn't fed off to Rove's gunslinger, to then show up as fodder a month or two before election.

Keven Drum has a post on what happens when of laws are unilaterally created in secret, without proper discussion with the interested parties (ref: Henry Farrel):

It seems very unlikely indeed to me that SWIFT’s cooperation with US authorities was legal under European law. The organization could find itself in a lot of hot water.

So the price that is paid for unilateral action is perhaps damaging some necessary mechanism tracking operations.

#56 Mark B.

Non-sequitur much?

HR (#58) -- I think that it's a given that whatever the circumstance, we're talking about exactly the situation where one side is going to claim exactly what you're claiming. If the roles were reversed, the other side would be yelling similar slogans.

The question is: does the executive believe that such disclosure can kill americans? After all, I believe the purpose of the executive is to make decisions that can only be made by one person -- to me that means wider latitude when fighting a war.

Of course, if the war is a joke, well I guess go fish. By not having a good definition of the word "war" and not having a declaration of war from congress, politicians on all sides of the aisle have left us dumb schmuck citizens unable to really discuss what the heck is going on here.

Thanks guys.

HR, not buying for one second your assertation that there "was no oversight" -- please document your talking points (especially those in all-caps) if you want to make a better impression on a skeptical audience.

Of course, that might not be such a great gameplan considering the article you did link to:

But if the Times’ revelation about a program to monitor international exchanges is so damaging, why has the administration been chattering about efforts to monitor domestic transactions for nearly five years?

Now, I'll admit that terrorists should have been assuming that U.S. Domestic financial transactions were being monitored; after all, the War on Drugs (which, for the record, I think has been much more corrosive to civil liberties than anything Bush by himself has done) already had given the government pretty much open access to financial transaction histories in this country.

What's clear from the Times article is this program was focused pretty much exclusively on transactions outside the United States. That, as they say, is a horse of a different hue.

So, lets say you're the U.S. government, and you have identified a Morroccan financier whom you suspect of laundering money for Sudanese jihadis, moving most of the transactions through Slovakian and Ukranian banks. Where exactly do you apply for court orders to start monitoring this gentleman's activities?

When you start thinking about these variables, the value of access to all that raw data becomes pretty obvious. And that access has just gone poof.

As I pointed out earlier, people friendly to us in the hunt for terrorists have been burned much more badly than us; we've lost a valuable tool, but they've lost reputation and trust. SWIFT in particular may be severely damaged, and SWIFT itself has been instrumental in revolutionizing the efficiency of international banking. I'm not a stockholder or anything, but the business I'm in relies pretty heavily on the SWIFT network; as a matter of fact, I'm scheduled to be at Sibos (the tradeshow for those who work with the SWIFT co-operative in various capacities) and I'm sure the sparks will be flying and SWIFT officials will be dancing as fast as they can.

The practical effect here is that the entire infrastructure for International Banking has just been whacked hard with a hammer; exactly what will happen as a result ranges from almost nothing to the collapse of one or more emerging economies. I really don't have a clue; analysing that kind of thing isn't remotely my line of business, but I do wonder if Bill Keller or his counterparts at the LAT or even WSJ ran any hypotheticals past their International Business editors.

So, we weigh the loss of a huge set of data about international transactions, damage to the reputations of allies, potentially catastropic damage to the trust relationships that make International Banking work, against the public's right to know that the US government has been peeking over the shoulders of almost exclusively foreign money movers. Yeah, I feel better now.

Those who support the NYTimes still have not understood the simple concept which is, this program was continuing to work and was providing valid intel. This is even explained in the original NYTimes article.

So lets drop the "everybody knew about it and it wasn't really all that secret" canard already.

Shhh... Don't mention the WSJ, ok!

"#56 Mark B.

Non-sequitur much?"

HR- try to follow me here. I'll go slow.

You asked:"do you guys REALLY want the government to dictate what the press can and can't write about? Do any of you have any idea where that leads?"

I responded with instances where the American government quite literally told the press what the can and cannot write- and the historical outcome was not the Orwellian world you are suggesting.

So you see, what response was not a non-sequitar. It was, in fact, a direct response to your challenge. You, on the other hand, have introduced this into the exchange. Thank you for demonstrating you have no intention of engaging in any kind of meaningful or constructive dialog.

From a Blogger-who-shall-remain-nameless, more clarity:
---
Q: "If it was all public knowledge, what did the Times article add? What was the journalistic value of the Times piece if it added nothing? Why, for example, was it on Page 1?"

A: The article had 2 purposes:

(1) It disclosed that the Bush administration obtains these records by administrative subpoena and therefore with no Congressional or judicial oversight [informing a couple of Democrats is not providing oversight]; and

(2) It highlighted for its readers the fact that the Bush administration implemented this program in the aftermath of September 11 and then never bothered to have Congress provide any legislative authority or mandate any oversight framework for the intelligence-gathering program.

As was true with the December 16 NSA story, what the Times disclosed was the lack of oversight and safeguards in our intelligence-gathering operations - thereby prompting important public debate on those matters -- but not any non-public operations details that could help The Terrorists evade detection."

"What the Times revealed is the lack of oversight and checks on these intelligence-gathering activities, not the existence of the activities themselves, which were already well known."
---
End quote.

informing a couple of Democrats is not providing oversight

The point of fact is that the Administration had to subpoena the records, going through the Judicial branch, and thus, accessing one in a series of "checks and balances". Just because the entirety of Congress didn't get daily briefings on the day to day operations of the program doesn't mean that there was no oversight. In fact, any member of hte intelligence committee could have pushed for legislation to perform a host of functions, yet they didn't even though they were in full knowledge of the program.

The 9/11 Commission knew about the program, and could have briefed Congress in their report about any issues that might arise from the program, but to this date, we know of no such warnings. Just the opposite, they proposed programs like this to help counter possible terrorist activity.

Heck even the NYTimes op-ed board in 2001 proposed this exact type of monitoring program.

Lastly, the NYTimes is not the arbiter of what is deemed classified and what is not. They have absolutely ZERO oversight or accountability.

So why don't you take your talking points and go spout off to the echo chamber at Kos or DU.

"The point of fact is that the Administration had to subpoena the records, going through the Judicial branch, and thus, accessing one in a series of "checks and balances"

Please point me to this fact, GC.

"Lastly, the NYTimes is not the arbiter of what is deemed classified and what is not. They have absolutely ZERO oversight or accountability."

Pronounced with all the gravitas and authority of a true Bushista who insists on reserving all such rights only for those who are Trusted supporters of the Hegemon.

But of course all citizens in an open Democratic society, even journalists, are free to question the authority and actions of their leaders. That is what you are really arguing against here, so let's at least be honest.

Bush is in office precisely because they have not done this vigorously enough in the past 6 years, failing especially during his 2 lie-filled campaigns.

National Security my ass. Political security is more like it.

"So why don't you take your talking points and go spout off to the echo chamber at Kos or DU."

Because I prefer to interrupt the echo here in the cult-of-Bush circle jerk. Why don't you go over there and try out some of your fawning hero worhip, see how far that gets you?

The practical effect here is that the entire infrastructure for International Banking has just been whacked hard with a hammer; exactly what will happen as a result ranges from almost nothing to the collapse of one or more emerging economies.

And this was a shoe waiting to drop from the beginning.

Once we started doing it in secret, it was pretty much inevitable that at some point it would get revealed, probably by european news media that we couldn't discipline.

All the results that you point out would happen, pretty much inevitably, at some random time not of our choosing -- unless we chose to leak it on our schedule. (That's something else we lost that you didn't mention. Given the tremendous damage available to the people who chose to cooperate with us, we could blackmail them into anything else we wanted by threatening to reveal what they've already done for us.)

So, was it really worth doing it this way? If we had gotten european governments to agree to a sharing agreement, they require their banks to cooperate with them and they pass on any information we ask them for and anything they think we should see, that kind of thing, we could have kept it up indefinitely without the big scandal when the secret comes out. Wouldn't that have been a lot better?

The issue here isn't the terrorists. It's the scandal. It's scandalous for european banks to cooperate with us. And we didn't have to do it in a way that would be scandalous.

#68

Your lack of knowledge regarding this story makes me question your analysis. You seem to be unable or unwilling to learn the facts. Why don't you bother to do a little research and then make some "informed comment"

And FYI: as is typical of the looney left, opposing viewpoints are banned outright at DU and you won't see any pro-Bush postings at Kos, not that my position on this is pro-Bush.

For my colleagues who have been skeptical of the U.S. Government’s efforts in terrorist financing, this program, the cooperation with other financial providers, such as First Data Corporation and Western Union, contributed significantly to the A- grade given the Government for Terrorist Financing by the 9/11 Commission. Many of the successes achieved in terrorist financing have not reached the public domain. The anonymity afforded, up until this point, has provided the interagency community the opportunity to continue to exploit terrorists through their financial vulnerabilities.

As more information becomes known and as subject matter experts and the media assess the program, they should not lose sight of the fact that the program was strictly monitored and audited. The field of information actually reviewed was quite minimal in comparison to the universe of SWIFT records that exist. SWIFT records were provided to the Treasury Department in accordance with Office of Foreign Assets Control (OFAC) subpoenas. This initiative was operated in accordance to the law. Before rushing to judgment, critics should appreciate the level of scrutiny and accountability that was put in place to ensure SWIFT information was used solely for terrorist investigative purposes. In addition, assertions that the information reviewed did not lead to positive results would be wrong.

As this situation unfolds, the question should again be posed as to why the media felt compelled to publish a story that undermines National Security by exposing a viable investigative technique to terrorists. A productive and important investigative mechanism has been disrupted and greatly diminished. Once again, why is the media more seemingly concerned about the need to inform the American public about terrorist intelligence operations that involve public records than they are about the adverse impact the report has on National Security?

Mr Chapman, please re-read "administrative subpoena" with special attention to the word in bold face. You see, the Administration does not have to go to court first to obtain these subpoenae. (Details here.) What's more, since the subpoena can mandate secrecy and since standing to sue is vested only in the recipient of the subpoena (the clearinghouse) and not in the third party adversely affected (the population of the world whose banking records are now to be pawed over by the Bush Administration), there is absolutely no reason to believe that the judicial branch has entered into the process at any time. Do you have any evidence to proffer that it has, or did you just set the keyboard to robodefense mode?

American law provided a way for the Administration to get judicial approval for wiretapping, and Bush/Cheney emphatically refused to do so. Judicial oversight is 9/10 thinking. The Omnipotent Unitary Executive is 9/12 thinking. When I show you Republicans who have fallen away from the Administration in recoil over its adamant refusal to believe in the American system of government as it was understood pre-9/11, your sage comment is that they are doing it for book sales.

One of the reasons I like to mention the seemingly irrelevant gun control issue is that if the Bush Administration hit the majority-commenters of this blog on the one issue that matters to them—if, for example, the Hillary Administration claimed a unilateral and unreviewable right to take any man's guns and permanently prohibit him from every having any more, you would be organizing terrorist resistance. To the Administration's claim that they have an unreviewable right to detain any American citizen indefinitely (and that was the government's argument in Padilla), you shrug and look for precedents somewhere in the Civil War.

All the results that you point out would happen, pretty much inevitably, at some random time not of our choosing -- unless we chose to leak it on our schedule....

The issue here isn't the terrorists. It's the scandal. It's scandalous for european banks to cooperate with us. And we didn't have to do it in a way that would be scandalous.

I'm not buying this either. (Contentless filler deleted for general bandwidth principals).

First, ULTRA (the program that cracked the Nazi's ENIGMA) was secret until 1974. Second, VENONA (the program that read the Soviet's laundry lists, and had the Rosenbergs dead to rights, literally) remained secret until 1984.

Secrets can be kept by serious people, but hey, I guess these aren't serious times.

And why, pray tell, would it be scandalous for European banks (SWIFT, btw, is very much a global entity, but let's go with your characterization) to cooperate with "us"? (Bear in mind that "us" can be a pretty ambiguous entity when one is dealing with classified programs.)

I await your exposition.

Follow-up for J: In what way could we have gotten the same data that would not have alerted any Al-Quaeda-like entities that we were mining data on a global scale? Please be specific.

I'd bet that the government could already come after them for damages reflecting the cost of developing the monitoring program...no new statutes required The principle would seem similar to the knowing publication of trade secrets.

Greenwald is relying on false and limited choices - the SWIFT program could be highly effective at limiting the effectiveness of terror groups even if terrorists were perfectly well aware of it and had fully adapted, and even if as a result of those adaptations it never led directly to an arrest.

Here's the scenario: Our jihadist finacier knows SWIFT is blown. So instead of using a one-time pad to tell his cutout in Bratislava to make a certain wire transfer to an an account in Kiev, he has to instruct the cutout to procure a courier to do the same work. The courier is now busted at the Ukranian border. The Ukranians use techniques wholy in line with the Geneva Convention to get back to the cutout, who sells off the one-time pad to the Slovakian Secret Police, and suddenly our Jihadi finacier is dealing with a friendly (to us) sock puppet.

But he isn't really anymore. Because the SWIFT network is now safe for Jihadi business.

But damn, my never-infringed-upon civil liberties really feel warm-and-tingly right now.

Okay, now I'm upset. NYT/WSJ/LAT just released our enemies from relying on 1970's tactics and brought them right back into the 21st century.

Oh, mother of mercy.

I would suggest everyone watch the number one video on Google videos top 100 list called Loose Change Second Edition and tell me if the Wall Street Journal headline even compares. I am so glad they broke the story and let the American people that yet another right in a long line of civil rights abuses, has been violated again by the administration.Watching the video you start to learn quickly that alot fo things are not as they seem.

Given the politicized and screwed up nature of our classification system there is no way I would support such a bill. And no, this is not an attack on the Bush administration per se; the government has been doing CYA via classification since at least WWII.

Andrew;

Thanks for slicing and dicing GC in #72.

I'll never cease being amazed at the semantic games Republicans play in order to obfuscate the issue and argue their shaky and unsubstantiated positions.

In the case of GC, I think he's just trying hard to be a good soldier for the Great Leader...I guess he should be commended for that, although it would be more comforting to me if he realized that he's been commissioned to fight other Americans in a Political Jihad and is helping to bring about an end to the free and Democratic society that allowed the rise of his movement to begin with.

To the Administration's claim that they have an unreviewable right to detain any American citizen indefinitely (and that was the government's argument in Padilla), you shrug and look for precedents somewhere in the Civil War.

Andrew, you might not have noticed, but the government won that argument in Padilla and its still good precedent. Here is the holding:

The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war; who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets.

We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed.

Jose Padila v. C.T. Hanft

Yes, the government cashed-in and refused to risk reversal by the Supreme Court. But that's the law until someone can get a case to the SCOTUS and convince them otherwise.

Hmmmm . . .

The Supreme Court ruled on Thursday that President Bush did not have authority to set up the war crimes tribunals at Guantanamo Bay, Cuba, and found the "military commissions" illegal under both military justice law and the Geneva convention.

SCOTUS Blog

"You see, the Administration does not have to go to court first to obtain these subpoenae. (Details here.)"

Andrew, the link you provide is for a proposed expansion of administrative subpoena power. It was never enacted and was deadended in a subcommitee . Even were it enacted, there is judicial recource, the text included this clause:

"At any time before the return date specified in the summons, the person or entity summoned may, in the United States district court for the district in which that person or entity does business or resides, petition for an order modifying or setting aside the summons."

Here is the current law. Rule 41(b)(3) was added by the Patriot Act, and which the bill you site was meant to ammend.

"3) a magistrate judge in an investigation of domestic terrorism or international terrorism (as defined in 18 U.S.C. § 2331)Þhaving authority in any district in which activities related to the terrorism may have occurred, may issue a warrant for a person or property within or outside that district."

And here is the administrations current FISA limitations:

"FISA Orders. In international terrorism cases, the FBI has sweeping authority to obtain business records and any other tangible things under the Foreign Intelligence Surveillance Act. Although the FBI must go to a judge to obtain an order under this provision, the application only needs to specify that the records concerned are sought for an authorized investigation. (The DOJ has recently said it has never used this authority.)"

If you are going to prove the administration has unchecked administrative subpeona powers, perhaps you should provide a source that is current as opposed to proposed law.

AJL:

The program is legal. It does not violate the Constitution. Administrative Subpoenas and National Security Letters have been dealt with in the courts and are nothing new. Most Administrations have used them.

US v Miller:
Customers have "no legitimate 'expectation of privacy' in their [records]," because all such financial information is "voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business." In short, "[t]he depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.".

See v. City of Seattle:

that administrative subpoenas for the production of records or documents satisfy the Fourth Amendment so long as they are "sufficiently limited in scope, relevant in purpose, and specific in directive."

The International Emergency Economic Powers Act of 1977 (IEEPA) expressly affords the president power to investigate international financial transactions, including those of non-foreign persons, pursuant to a declared state of emergency. Section 1702(a)(2) empowers the president to compel production of such financial transactions, via administrative subpoenas. On September 23, 2001, the President Bush notified Congress and the general public that he would utilize the powers authorized under IEEPA in combating terrorism.

You could also actually learn something about Administrative Subpoena if you took the time, but you seem apt to just continue to regurgitate alarmist talking points filled with hyperbolic catchphrases right out of the ACLU playbook.

Gee, Gabriel, bad timing on the SCOTUS stuff. Sorry. (Not.)

Yeah, the Government (disgracefully) won Padilla at the appellate level with its scary rhetoric and it was sure to lose at SCOTUS. That's why they pulled the case of the monster terrorist Padilla and changed it to an ordinary civilian court. You have to remember, we're talking about an issue where Scalia and Stevens think alike. As I said on this blog many times before, the issue in Padilla is a simple one: does the President have the authority to issue lettres de cachet, and the answer has been 'No' in our tradition since, say what, 1688? 1215? 1 B.C.?

An administrative subpoena is an order from a government official to a third party, instructing the recipient to produce certain information. Because the subpoena is issued directly by an agency official, it can be issued as quickly as the development of an investigation requires. [emphasis added]

You guys with BDS (Bush Devotion Syndrome) will write anything in his defense, with the keyboard completely uncoupled from the brain.

PD Shaw,

"Those whom the gods would destroy, they first make mad."

This is the end of judicial independence. Lifetime appointments just died.

The point of fact is that the Administration had to subpoena the records, going through the Judicial branch, and thus, accessing one in a series of "checks and balances". [my emphasis]

You got caught with your pants down.

And it was a pleasure on my part, too.

#86 Tom Holsinger

I'm perusing late, and can't make out what you mean by "This is the end of judicial independence. Lifetime appointments just died."

Ref to the
SCOTUS Hamden decision?

"Mark B.: An administrative subpoena is not pre-approved by a court, neither in terrorism cases, nor child support cases, nor drug cases. That's the very meaning of the word administrative. "

My link is lifted from your link. Moreover you havent addressed why you linked to a proposal that was never enacted as a source.

Regardless, you still havent shown that anything the adminstration is doing is illegal. The courts have held adminstrative subpeonas legal:

"In United States v. Powell, the Supreme Court held that an administrative subpoena will be enforced where (1) the investigation is ``conducted pursuant to a legitimate purpose,'' (2) the subpoenaed information ``may be relevant to that purpose,'' (3) the information sought is not already in the government's possession, and (4) the requesting agency's internal procedures have been followed."

"it is true, is it not, that the subpoena can be accompanied by a secrecy order that actually prohibits the clearinghouse from letting the target know of the subpoena's existence."

"But, as the Supreme Court has held, there is no constitutional requirement that the subject of an investigation receive notice that the ministrative subpoena has been served on a third party. Justice Thurgood Marshall wrote for a unanimous Court that a blanket rule requiring notification to all individuals would set an unwise standard." link

Note these are far from new decisions made by Bush courts. This is a practice that has been around for a long time, all Bush is doing is allowing terrorism investigators to use the same power the Post Master General uses to investigate mail fraud for goodness sake. Do we need to go back and investigate how Clintons administration used administrative subpeonas?

AJL:

Do you just insist on being ignorant or is it a character trait?

You continue to misrepresent nearly everything associated with the Administrative Subpoena.

Read the PDF in my post above or should I just assume you have a reading comprehension disability and/or are willfully ignorant.

I was wrong on my initial analysis. I can't go re-edit the post.

I can admit an error. Can you?

I have come to the conclusion that rule of law is a fraud, designed by the powerful to fool the weak into believing that the weak and the strong play by the same rules. They don't. There is no "equality under the law" anywhere. Those with power do as they please, provided they can control or bribe the correct people, usually state functionaries.

Good =/ Legal.
Bad =/ Illegal.

Perhaps AJL would do well to read the summary of administrative subpoenas which is referred to in his own article:

Agencies are limited in their exercise of administrative subpoena authority by: (1) judicial review of subpoena orders prior to potential judicial enforcement; (2) notice or nondisclosure requirements imposed in an agency’s organic statutes; (3) privacy-protective constraints or notice requirements internal to the statute authorizing the subpoena power; (4) generally applicable privacy-protective statutes, prohibiting certain disclosures and requiring notice under certain circumstances; and (5) agency promulgated guidelines limiting or directing subpoena issuance...

The Supreme Court has construed administrative subpoena authorities broadly and has consistently allowed expansion of the scope of administrative investigative authorities, including subpoena authorities, in recognition of the principle that overbearing limitation of these authorities
would leave administrative entities unable to execute their respective statutory responsibilities. While an agency’s exercise of administrative subpoena authority is not subject to prior judicial approval, a subpoena issuance is subject to judicial review upon a recipient’s motion to modify or quash the subpoena or upon an agency’s initiation of a judicial enforcement action.

Federal courts subject the exercise of administrative subpoena authority to a reasonableness analysis, not the more stringent Fourth Amendment 'probable cause' analysis applied in situations involving search and seizure and issuance of a warrant...

While the privacy interests of an individual or entity are protected by maintaining administrative subpoena enforcement authority in the federal courts, the courts have consistently held that the issuance of an administrative subpoena without a showing of probable cause does
not violate the Fourth Amendment.

You have a valid point that administrative subpoenas are not pre-approved by the court system. But arguing that they are not subject to checks by the Court are unfounded. Your sole remaining objection seems to be that the end target doesn't know the clearinghouse complied with the subpoena, and can't challenge it. However, given that these subpoenas are not meant to be subject to 4th Amendment restrictions, there isn't a question of violation of civil rights so long as the government meets the "reasonableness" test mentioned above. Given that these subpoenas are established procedure already, your objection doesn't hold water.

Funny, the WSJ doesn't come under any criticism for also playing this story. Just the NYTimes. I guess it's because the editorial board of the WSG is such a Republican lapdogs that they get a pass...

Damn! Just when I thought the conservative ol' NYTimes was becoming irrelevant, they go and do something as bold as this. I guess I'm going to have to start subscribing again to show my support.

MB #65,

Don't have time for this today - but basically, the contention is this - the differences between the times, policy, enemies, social environments, and goals of WWI&WW2, versus the "war on terror" of modern times, that any comparison between the two is so immediately suspect as to make the comparison worthless.

So, yeah - you can make the comparison that all three are "fruits", but you are still comparing apples and oranges.

I'd give more time to this, but I don't have it right now.

HR, thats a qualitative judgement however you intend to frame it, which makes whatever definitive statements you have and intend to make about our grave danger at the moment debateable at best, and suspect considering the certainty with which you make your accusations.

Im sure the question of whether 3000 Americans murdered in downtown Manhattan is incomparable and petty compared to sneaking into the end of WWI to perform the Coup de Gras on a Germany that posed no realistic threat to the American homeland would be a fascinating debate, but to summarily declare them apples and oranges leads me to believe it wont be particularly well sourced and logical, much less enjoyable.

Apparently your rationale is that 'times were different', and now today (for reasons that are unclear to me) actions by a government that dont come near in severity are something we should be in a panic over. Sure. Why dont you cut to the chase and just say what is really on your mind: Wilson was a Democrat that could be trusted with limitless power, but Bush is the antichrist and allowing him to so much as write parking tickets is an invitation to Armageddon. Because its pretty obvious that that is what is at the bottom of your rationalizations.

jdwill,

Yes. I was referring to PD Shaw's No. 82 where he specifically referred to the Hamdan ruling.

Gee, Gabriel, bad timing on the SCOTUS stuff. Sorry. (Not.)

As I read it, the Gitmo crew can be detained indefinitely; its only if the government wants to put any of them on trial that there is a problem. Then the courts will make sure that the detainees obtain those "guarantees which are recognized as indispensable by civilized peoples" -- whatever the Hell that means. This thing can be litigated for decades. Good result for the detainees or their lawyers?

Yeah, the Government (disgracefully) won Padilla at the appellate level with its scary rhetoric and it was sure to lose at SCOTUS.

The scary rhetoric being ex parte Quinlan, a case that I'm now tired of linking since you apparantly refuse to read it. One B.C. my eye.

And why, pray tell, would it be scandalous for European banks (SWIFT, btw, is very much a global entity, but let's go with your characterization) to cooperate with "us"?

As I pointed out earlier, people friendly to us in the hunt for terrorists have been burned much more badly than us; we've lost a valuable tool, but they've lost reputation and trust. SWIFT in particular may be severely damaged, and SWIFT itself has been instrumental in revolutionizing the efficiency of international banking. I'm not a stockholder or anything, but the business I'm in relies pretty heavily on the SWIFT network; as a matter of fact, I'm scheduled to be at Sibos (the tradeshow for those who work with the SWIFT co-operative in various capacities) and I'm sure the sparks will be flying and SWIFT officials will be dancing as fast as they can.

Tell you what, let's ask that question to the guy who wrote #62.

This entire thread is high-larious.

I have to ask Mr. Holsinger: Why are you settling for just prosecuting the NYT? Surely you could push criminal charges in this matter against the DNC itself, since clearly the entire party has been encouraging and abetting these sorts of anti-war activities.

Or, alternatively, this site could be used to discuss slightly more constructive issues than how to destroy your political enemies.

I've been reading this site off and on for a number of years now. This article is one of the low points.

[aside to Joe: comment submission seems to be objecting to g-m-a-i-l.com (minus dashes) in the address field? is that intentional?]

the issue in Padilla is a simple one: does the President have the authority to issue lettres de cachet, and the answer has been 'No' in our tradition since, say what, 1688? 1215? 1 B.C.?

Since Jefferson was president. Washington did issue some.