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Is The NYT Threatening ‘Graymail’ On Leaks?

From the New York Times:

For U.S. Inquiries on Leaks, a Difficult Road to Prosecution

By CHARLIE SAVAGE
June 9, 2012

WASHINGTON — Anger over leaks of government secrets and calls for prosecution have once again engulfed the nation’s capital. Under bipartisan pressure for a crackdown, Attorney General Eric H. Holder Jr. on Friday announced the appointment of two top prosecutors to lead investigations into recent disclosures.

Mr. Holder picked two attorneys general who will report directly to him, instead of to a judge as in the case of a special prosecutor. What could go wrong? How could anyone doubt Mr. Holder’s objectivity here?

By the way, one of the two attorneys, Ronald C. Machen, is an Obama appointee who has been a regular contributed to Obama’s campaigns.

But the prospects for those efforts are murky. Historically, the vast majority of leak-related investigations have turned up nothing conclusive, and several of the nine that have been prosecuted — six already under the Obama administration, and just three more under all previous presidents — collapsed

Many people are surprised to learn that there is no law against disclosing classified information, in and of itself

Remember how the New York Times kept mentioning this detail during the persecution of Scooter Libby? We don’t, either.

Instead, leak prosecutions rely on a 1917 espionage statute whose principal provision makes it a crime to disclose, to persons not authorized to receive it, national defense information with knowledge that its dissemination could harm the United States or help a foreign power.

Lest we forget, this was the law that the special prosecutor, Patrick Fitzgerald, said he was using to try to prosecute Karl Rove and Scooter Libby. (Even though he knew at the time that Plame’s ‘identity’ had been leaked by Richard Armitage.)

To win such a case at trial, prosecutors have to prove to a jury that the leaked information met that standard, including showing why its disclosure was harmful

Identifying a leaker is also rarely easy, since there are often dozens or hundreds of officials who had access to the information

Several of the recent disclosures, however, resulted from deeply reported projects. Such articles tend to have diffuse sourcing, making it hard to isolate who first disclosed the essence of what later becomes an article.

On those rare occasions when there is an identifiable leaker, the government must still decide whether prosecuting would mean divulging too many secrets to be worth it — starting, usually, with having to confirm in public that a particular leak was accurate. Defendants who choose to fight often rely on a so-called graymail defense. This involves making the disclosure of further classified information a centerpiece of their right to a fair trial by pushing for even more revelations, such as identifying other people at the agency who had access to the same knowledge

Is the New York Times threatening to ‘graymail’ the government?

Still, wide-ranging leak investigations can also have unintended consequences — as when Patrick J. Fitzgerald, the prosecutor investigating the disclosure during the Bush administration of the identity of a Central Intelligence Agency operative, Valerie Plame Wilson, ended up charging Vice President Dick Cheney’s top aide, I. Lewis Libby Jr., with lying to the F.B.I. under questioning.

This was not an unintended consequence. This was what Fitzgerald was hoping for.

In that investigation, Mr. Fitzgerald had been made a special counsel and delegated all the powers of the attorney general. Some Republicans, accusing the Obama administration of leaking information to make President Obama look tough, have called for special counsels to lead the new investigations, too

That could make a difference if the investigators want to subpoena reporters or their records, because Mr. Holder himself would have to sign off on such a request. Mr. Fitzgerald, by contrast, was able to subpoena a New York Times reporter, Judith Miller, on his own. (She ended up spending 85 days in jail after initially refusing to testify.)

In other words, The Times is telling the White House they had better not let a special prosecutor be appointed.

This article was posted by Steve on Monday, June 11th, 2012. Comments are currently closed.

3 Responses to “Is The NYT Threatening ‘Graymail’ On Leaks?”

  1. Chinnubie says:

    What I find interesting are the people that keep saying it didn’t come from the White House. They really do think we are a bunch of moronic bumps-on-a-log, don’t they? Even democrats know where & why this stuff came out. Imagine a Republican Administration doing the same thing, impeachment would be the only thing the press would be able to say.

  2. Rusty Shackleford says:

    In so many ways, I’m glad I grew up when I did. The books I read, the TV shows I watched and the movies where right and wrong were not some pliable piece of clay.

    Moral relativism, AKA “wishy-washiness” has been the bane of this nation in exponential fashion over the past 100 years. Post WW II it picked up steam and went into full speed ahead in the 60’s and 70’s.

    Now we see the cumulative result of it. But I’m not sure what to be angry at; The fact that they really don’t think they did anything wrong or the fact that they are going to investigate themselves with the obvious result, “no wrongdoing was found”.

    This is the result of what happens in a society where the word “discipline” has been confused to mean “cruelty”.

  3. GetBackJack says:

    I’ve waited for this day a long time, to witness when all the thieves, liars, cheats and scoundrels begin to turn on one another and eat each other alive.

    It was inevitable.


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