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Monday, June 02, 2014

Drum Kinsley Greenwald Holder and The Espionage Act

Boy did I ever let this comment run away with me. Kevin Drum asked what the hell Michael Kinsley was thinking when he wrote the following


b>that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald.
I was unusually prolix in a comment.

I believe the bolded passage is an example of a fallacy which is more common than any other fallacy or any valid method of reasoning -- the false dichotomy. Kinsley asks if elected officials should have authority to keep things secret backed by the threat of prison. The alternatives he offers are prosecute Greenwald for espionage or eliminate all restrictions on revealing government secrets.

Thus Kinsley tries to sneak in the assumption that there is no middle way -- that it is, for example, impossible to threaten to prosecute people with security clearance for revealing secrets learned using that clearance without also threatening to prosecute journalists who report those secrets. I have just described the Obama administration's current policy (although the espionage act is so vague that the non prosecution of Greenwald and well most Washington reporters is an act of prosecutorial discretion - Obama administration policy which the next administration is free to change).

So our Democratically elected officials decide to keep secrets with a system of classification and security clearances. Currently Snowden would be prosecuted if in the USA while prosecution of Greenwald is not even under consideration (unless Eric Holder lied).

Kinsley could go further. The Guardian online has a wide circulation, but the Snowden effect is vastly amplified by all the other journals (including say mother jones at this blog) which repeated Greenwald's assertions. If Greenwald is guilty for reporting facts which were already out of the control of the US government, why so are you. Kinsley's logic is that there is no difference between Snowden, Greenwald, Drum, or, I'm sure, Kinsley.

Or heads up. I'm pretty sure that Greenwald, Drum,Kinsley and a good half of the US public could be prosecuted under the Espionage Act. It might be time to amend it a bit no ?

I think this is a fair excerpt with elisions

"whoever, for the purpose of obtaining information respecting the national defence with intent or reason to believe that the information to be obtained is to be used ... to the advantage of any foreign nation ... obtains, ... any sdocument, writing or note of anything connected with the national defence


"(d) whoever, lawfully or unlawfully having possession of ...any document ...relating to the national defence, wilfully communicates or transmits or attempts to communicate or transmit the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it;


shall be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or both."

The elided text consists of clauses or phrases separated from the quoted text by conjunctions such as "or". If you obtain any document respecting the national defence with an aim to help humanity (including foreigners) you are criminally liable.

Note there is no requirement that the documents related to the national defence be classified. If, say, you tell foreign policy makers the US military budget as published in the Federal Register for the sole purpose of helping them forecast US aggregate demand and optimizing their macroeconomic policy, then "shall be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or both."

I'm not a lawyer. I note that the text is perfectly clear. I trust that it has been interpreted to be the law Congress should have written. I think this is done through the absolutely essential judicial principle of lying about plain English if reading what was clearly written has bad enough consequences. But I have no doubt that, under current US law, you, Kinsley and I are felons.

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