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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsJames Risen and the matter of Wen Ho Lee
James Risen is back in the news, again insisting that, as a matter of privilege, he will not testify in court in a leak case involving national security issues
I say again because Risen has taken this stance before, in a matter that ultimately did not reflect well on many involved: the story of Wen Ho Lee
For the benefit of anyone who might somnambulated through the late 1990s, let us briefly recap the details
In March 1999, the NYT published a story by Jeff Gerth and Risen revealing that Wen Ho Lee, a nuclear scientist at Los Alamos, had been suspected of passing nuclear secrets to the Chinese towards the end of the Reagan era
The predictable political frenzy erupted, with accusations that the Clinton administration was soft on spies, with the result, in December, Wen Ho Lee was charged about five dozen counts of violating national security laws and spent the larger part of a year in custody. During this time, various exciting accusations were made
But by August 2000, the case had almost completely crumbled, and the defendant was offered a deal, in which he would plead guilty to one felony count of mishandling nuclear secrets, be sentenced to 278 days, but given credit for his 278 days in pretrial detention
The judge's long remarks on accepting the bargain were interesting. He began:
And he concluded:
Lee waived any right to appeal, in accepting this bargain, but subsequently sued on the government on the grounds that whoever leaked the unproved allegations, about his role as a spy in 1988, had violated his privacy rights. Risen was provided with a subpoena to testify in that case, in order to shed light who had improperly leaked the old allegations about Wen Ho Lee to the press. Risen did not wish to testify, and repeatedly challenged the subpoena. The subpoena was repeatedly upheld on appeal, though in the end the government settled, paying $895K to Lee. And oddly, five media outlets, including Risen's NYT -- none of them defendants in the suit -- kicked in another $700K to sweeten the settlement so the case would go away
It seems, of course, highly unusual for a judge to apologize to a defendant who has just pleaded guilty to felony mishandling of nuclear secrets; and it seems even more unusual for five large media corporations, not named as defendants in a civil suit, to throw $700K into the settlement pot to encourage the plaintiff to plead guilty and drop the suit
So something was going on here
The natural guess is that Risen and other reporters had involved themselves in some highly irresponsible reporting of old unprovable allegations against Wen Ho Lee, destroying his reputation and career, and unleashing some unconscionable witch-hunt against him, with the result that the US Attorney, after long investigation, finally found a technical violation of nuclear lab rules that he could use as a lever to encourage Wen Ho Lee to plead guilty, allowing everyone to save face, and the media corporations, being neck-deep in the cluster-fuck, themselves thought it best to encourage the plea-bargain further
The courts seem to me to have ruled properly here against Risen's attempt to evade testifying on grounds on reporter's privilege; and in this case he would have been properly jailed for contempt, had no plea bargain resulted and had he then been called to the stand
http://www.salon.com/2000/09/21/nyt_6/
http://web.mit.edu/jmorzins/www/lee_parker_opinion.html
http://www.washingtonpost.com/wp-dyn/content/article/2006/06/02/AR2006060201060.html
sabrina 1
(62,325 posts)important stories and the only one who was going to use sources who needed protection, you might have a point.
This isn't about Risen, it's about the chilling effect of the government having the right to force journalists to reveal their sources.
We saw that happen in the UK under Blair and the tragic results of that horrific case. Just one example.
If you are justifying the government having this power over journalists and their sources, what you are doing is supporting ending all whistle blowing, all exposure of corruption, forever. In fact, we are nearly there already in this country regarding freedom of the press.
Risen should go to jail rather than give up his source. THAT will bring more attention to our rapidly diminishing freedom of the press.
JDPriestly
(57,936 posts)Sometimes the rule of law can seem terribly unfair and wrong. But the First Amendment right to a free press is not something that the government gives to the press or to us. It is an innate right in a free society.
We pay a price for freedom, and sometimes that price is allowing a guilty party to go unpunished.
Leme
(1,092 posts)and that means both prosecution, and defense( the individual) cannot get information in front of the court that might exonerate him.
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Refusing a subpoena by a reporter can cut both the defense and prosecution.
msanthrope
(37,549 posts)Heck....I've used it.
Leme
(1,092 posts)that witnesses cannot be used if what they reveal would be classified?
msanthrope
(37,549 posts)can and are used.
Leme
(1,092 posts)A man pleaded guilty and could not bring up various things... but I was not aware of what the case entailed so I only skimmed thread or post.
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Perhaps someone else will relate what I am referring to. Maybe I am not stating well that occurrence.
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: )
msanthrope
(37,549 posts)Leme
(1,092 posts)The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information which might endanger national security.[1][2][3][4][5][6] United States v. Reynolds,[7] which involved military secrets, was the first case that saw formal recognition of the privilege.
Following a claim of "state secrets privilege", the court rarely conducts an in camera examination of the evidence to evaluate whether there is sufficient cause to support the use of this doctrine. This results in court rulings in which even the judge has not verified the veracity of the assertion.[1] The privileged material is completely removed from the litigation, and the court must determine how the unavailability of the privileged information affects the case.[3][5]
msanthrope
(37,549 posts)Leme
(1,092 posts)and it probably no longer matters. train of thought on this is long gone, sorry
JDPriestly
(57,936 posts)So, under our Constitution a law that abridges that is lessens the freedom of the press to obtain information is a violation of the First Amendment if you read the plain language of the Constitution.
In addition to the abridgement of the freedom of the press to obtain information, the issuance of a subpoena to a reporter to name a source is an abridgement of the reporter's freedom to report or print or announce the news because it is an attempt to punish the reporter for refusing to remain silent about news the reporter is aware of.
It's really tough, but the national security agencies' secrecy policies are violating the Constitution when someone cannot have a fair trial due to the failure on the part of the government to produce in response to a subpoena information or the attempts by the government to intimidate the press by subpoenaing reporters' sources.
The press is virtually a fourth part of our government. The press must be independent and free if our system is to work. And in this day of the internet and easy access to paper and the means to do what used to be called setting type, the constitutional protection for the press reaches pretty far.
Government secrecy and a free society do not mix. It's probably one or the other. I choose a free society.
But there are lots of risks in a free society. If people don't want a free society, they should move to a more secure place on earth.
The point in the Bill of Rights was that the Founding Fathers believed that an overbearing, too powerful, too secretive government was more dangerous than insecurity with regard to outside or internal enemies. A government-muted or silenced press was more threatening to our country in the eyes of the Founding Fathers than was a press that was disloyal or caused insecurity to our country.
Leme
(1,092 posts)I have reservations when a reporter claims the privilege/right in non-governmental matters, not up to stating specifics right now. sorry
JDPriestly
(57,936 posts)absolute.
That is because no person is qualified to judge whether the press has the right to publish something or not.
If lies are published, the person about whom the lies are published can sue in a civil court for damages. See my post #22.
The intent of the Founding Fathers was to give the press absolute freedom. It's tough. I know. It can seem very unjust, but anything less, and the government will suppress information, sell us lies. (As our government is doing by using the states secret laws.)
Leme
(1,092 posts)Last edited Sat Jun 7, 2014, 07:53 PM - Edit history (1)
I might go with no protection.
edit: such as bombings, anthrax release
struggle4progress
(118,274 posts)go back over 150 years. Current estimates indicate there may be about 7000 subpoenas issued in state and federal courts each year. Everyone will agree in the importance of a free press, and courts typically recognize potential issues associated with such subpoenas, but I doubt if you point to a jurisdiction in the country that recognizes any absolute "reporter's privilege"
The current DOJ policy for obtaining information from news media can be read here: Federal Register 79#39 (Thur 27 Feb 14) 10989-10994
JDPriestly
(57,936 posts)I know what is done, but what is done is not always what the Constitution requires.
Fortinbras Armstrong
(4,473 posts)Then the reporter should be obliged to disclose his sources.
msanthrope
(37,549 posts)Fox News after is no surprise.
That he is a current 'hero' at DU among some is no surprise, either.
Leme
(1,092 posts)confidentiality is important.
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Just like Snowden/NSA... crook or hero... not important.
edit: but sometimes confidentiality could just be used as an excuse when doing "false' reporting
randome
(34,845 posts)Or confidentiality depending on the circumstances? Just because someone is a journalist should not give him or her a 'Get out of jail free' card.
Otherwise, assholes like James O'Keefe would never be in trouble.
[hr][font color="blue"][center]"The whole world is a circus if you know how to look at it."
Tony Randall, 7 Faces of Dr. Lao (1964)[/center][/font][hr]
Leme
(1,092 posts)edit: but sometimes confidentiality could just be used as an excuse when doing "false' reporting
Leme
(1,092 posts)randome
(34,845 posts)[hr][font color="blue"][center]Aspire to inspire.[/center][/font][hr]
Leme
(1,092 posts)things go to print real fast.
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and sometimes opinions seem to come across as facts.. and vice versa. And few of us, if any, are professional wordsmiths.
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and this internet chat/ discussion is rather new in many ways
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an oops here is common, that's why I tell people to stay away/ be leery about medical advice in chat or discussions because an oops: " I forgot to tell you", could be dangerous.
and no assured way to correct that oops
JDPriestly
(57,936 posts)complained about the lies that were printed in the press, but absolutely defended the freedom of the press. He stated over and over that the laws protecting us from slander and libel are all we need. Beyond that the court, (the magistrate) should leave the press alone.
There is a long computer page of quotes from Jefferson explaining that without absolute freedom of the press, we have no freedom for individuals.
"Considering [the] great importance to the public liberty [of the freedom of the press], and the difficulty of submitting it to very precise rules, the laws have thought it less mischievous to give greater scope to its freedom than to the restraint of it." --Thomas Jefferson to the Spanish Commissioners, 1793. ME 9:165
"It is so difficult to draw a clear line of separation between the abuse and the wholesome use of the press, that as yet we have found it better to trust the public judgment, rather than the magistrate, with the discrimination between truth and falsehood. And hitherto the public judgment has performed that office with wonderful correctness." --Thomas Jefferson to M. Pictet, 1803. ME 10:356
"Printing presses shall be free except as to false facts published maliciously either to injure the reputation of another (whether followed by pecuniary damages or not) or to expose him to the punishment of the law." --Thomas Jefferson: Notes for a Constitution, 1794.
"Printing presses shall be subject to no other restraint than liableness to legal prosecution for false facts printed and published." --Thomas Jefferson: Draft of Virginia Constitution, 1783. ME 2:298, Papers 6:304
http://famguardian.org/Subjects/Politics/thomasjefferson/jeff1600.htm
Our government is not supposed to keep so many secrets from us. The Founding Fathers (maybe with the exception of Adams) would be turning over in their graves today if they knew how our government keeps secrets from the American people.
Let the people know the facts, and the country will be safe.
Abraham Lincoln
The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.
Patrick Henry
http://www.georgeafb.info/quotes-on-government-secrecy/
JDPriestly
(57,936 posts)sacrosanct. Who is qualified to decide what the press should or should not publish?
And requiring a reporter to disclose the name of a whistleblower or government informant is the equivalent of prohibiting the reporter from printing the information provided by the whistleblower or informant. It is a round-about means of controlling what is and is not printed.
Government secrecy laws are also a way to muzzle the press, to prevent information from being disseminated. That is understandable in some situations. The press should not print the plans of the police to carry out a drug bust just a day or so before the bust. But in particular when it comes to past events, the government should have almost no secrets from the people.