I Agree
Appoint a special prosecutor immediately. Make the reporters reveal sources or throw them in jail until they decide to cooperate. Patterico has a really thorough and very balanced view of whether the reporters and editors themselves can be prosecuted. It's worth the read if you'd like a legal view of the situation.
As to the separate question of whether these folks can and/or should be criminally prosecuted, I haven’t made up my mind. I lean toward the conclusion that prosecutions are possible and wise. But it’s not as obvious as you might think. In the context of the current situation, the answer may seem obvious. But it is easy to imagine other situations where it is not.
Let’s hypothesize that, in the future, President Hillary Clinton suspends an important operation against a terrorist organization because of concerns that the operation relies too heavily on racial profiling. A concerned career Justice Department official writes a memo to President Clinton disputing the allegations of racial profiling, and warning of dire consequences if the program is suspended. The memo is classified. Later, a terrorist cell that could have been stopped by the program sets off a dirty bomb in downtown Chicago. Thousands are killed. And someone leaks the classified memo to the New York Times, which publishes it.
Should the reporter be prosecuted? I think it’s obvious he should not be.
Patterico makes a good point and a good distinction. This program was not classified because it was embarrassing. The NYT and LAT both confirmed that the case for keeping the program silent was quite strong. They both admit that major, major bad people were captured because of this program. But they went ahead and published.
And I suspect that they reason they did was not because the program was embarrassing to the administration, but because the papers hoped that they could damage the administration. Regardless of what damage it does to the US in the future. Regardless of how many people die as a direct result of the paper's actions.
Now, here's a question. Could a private US citizen bring a legal action against the two papers for the disclosures? Could the RICO statute be used? Just wondering.
Blogosphere, Media | Gaius Friday, 23 June , 2006
By Shawn, Friday, 23 June , 2006 @ 8:08 pm
Gaius: “Now, here’s a question. Could a private US citizen bring a legal action against the two papers for the disclosures? Could the RICO statute be used? Just wondering.”
Excellent wondering. Anyone can file a lawsuit at any time (and it happens daily), but you ponder a great question.
By Gaius, Friday, 23 June , 2006 @ 8:13 pm
Could be an interseting exercise. A lot of flimsier lawsuits are filed every day. I have no idea if it could be done or if a citizen would have standing to sue.
By Aitch748, Friday, 23 June , 2006 @ 8:42 pm
Well, SOMETHING needs to be done. The New York Times seems to be violating the law more and more flagrantly. Somebody else online had a theory that the Times was doing it deliberately to pick a legal fight with the federal government. If that’s what the Times is doing, then you have to know they’ll be escalating, and eventually they might try pulling a REALLY big stunt, like publishing troop movements, or instructions on how to make chemical weapons, or the itinerary of Air Force One — or maybe just the names, addresses, and photos of every “humint” asset we have in the Middle East. That way, when the feds finally come and arrest people at the Times, the leftists can scream “censorship” and “fascism” and — oh wait, they do that already.
By Gaius, Friday, 23 June , 2006 @ 8:47 pm
They do that while screaming for their enemies to be silenced for “hate speech”.
Odd, isn’t it?
By crosspatch, Saturday, 24 June , 2006 @ 2:44 am
I believe a class action suit is possible. Here is the approach I might take if I were talking to a lawyer:
The NYT article did not disclose any wrongdoing by the government. They did not alledge that any individual was engaged in any wrongdoing. They did not alledge any breech of the public trust through any abuse or misuse of any information obtained by the program.
Employees of the NYT that were in a position to approve or disapprove publication of the information were asked by representatives of the US Government not to publish the information because it would damage efforts to identify terrorists or activity in support of terrorism. Additional individuals who had served on the 9/11 commission apparently asked that the information not be published and vouched for the integrity of the program.
The government has stated that the program has resulted in the identification of and subsequent arrest of individuals involved in terrorist acts or the support of terrorist acts.
It is reasonable to believe that terrorist acts are unpredictable as to timing, location, nature, and scale.
Therefore, it is reasonable to conclude that through the exposure of this program, the ability to identify and arrest terrorists or supporters of terrorism or disrupt future terrorist acts has been damaged. As a result, the exposure of this program has placed me, my family, and my community at greater risk of harm from a terrorist attack than it otherwise would be by effectivly eliminating one of the defenses our country has emplaced to protect us from such acts. In their desire to expose this program in order to cause a public spectacle and further enrich their business through the sale of newspapers and display of advertizing both printed and electronic, for no apparent benefit of the American public, they have placed the American public at greater risk of injury or death.