1. Maryland Conservatarian - November 29, 2006 at 5:52 pm

   OK I’m keeping all that in mind. Why?? The NSA program went through Congress again and I think it’s illegal for government officials to leak information – even if it is to that progressive mouthpiece, the NY Times.

   All these various “keep in minds” don’t feed the bulldog – if you’ve got a specific accusation of illegal behaviour akin to Iran Contra by the current administration – make it. otherwise what’s the connection? or is this just another opportunity to safely bash the president?

   besides I think the Press also skipped over the anniversary of Travelgate – but you don’t see us whining about it.

2. Heidi Kitrosser - November 29, 2006 at 6:13 pm

   “The NSA program went through Congress

   again”

   MC: The fact that Congress now knows about the program’s existence is a far cry from it’s going through the Article 1, Section 7 process of passing legislation. (It began to go through this process pre-election but obviously no legislation has yet passed). It’s also a far cry from their holding probing congressional hearings. I’ve previously blogged on the topic of probing congressional hearings — both in the current NSA hearings and in the 1970s hearings that led to FISA — in a couple of earlier posts from this month. Suffice it to say, though, that the Constitution’s framers were careful to specify a very elaborate process for legislative passage — they did not leave it at saying: “the executive branch’s activities should ‘go through Congress.’”

   “I think it’s illegal for government officials to leak information – even if it is to that progressive mouthpiece, the NY Times.”

   First, it’s entirely debatable whether statutory law makes classification leaks automatically illegal. Unlike Britain, we don’t have an Official Secrets Act that clearly has that effect. We do have a vaguely worded Espionage Act (from 1917, amended in 1950) that arguably has that effect, but it’s not 100% clear that it does.

   Second, even if there is such statutory authorization, that begs the question as to whether such punishment is constitutional. Think about it: Under standard 1st Am. law you can’t be prosecuted for causing danger through political speech unless you intend to cause, and are likely to cause, imminent dangerous illegal activity. Should the wielding of a classified stamp by one of the several million public and private actors with classification authority automatically negate such protection?

   I would think that such massive government power over information flow would alarm any self-described “conservatarian.”

   As I said in my post, I intend to blog about the classification point in more detail later. For now, I thought that a reference would suffice for folks to understand my implicit argument — that it’s problematic in a system grounded in the notion of self-government to criminalize political information sharing so long as said information is one of millions of documents deemed “classified” each year through an insular and almost entirely unchecked process.

   “All these various “keep in minds” don’t feed the bulldog – if you’ve got a

   specific accusation of illegal behaviour akin to Iran Contra by the current

   administration – make it. otherwise what’s the connection? or is this just

   another opportunity to safely bash the president?”

   If you’re curious, see this link and/or the Minn. L.Review article cited therein and/or a debate I had with Profs. Carpenter & Volokh about NSA that was posted on the Volokh conspiracy back in July. As with the classification point above, I thought that a quick reference would implicitly incorporate my previous arguments along with the countless arguments on this point made by many others in many venues for over the previous year.

   http://www.concurringopinions.com/archives/2006/11/so_thats_why_se.html

3. Heidi Kitrosser - November 29, 2006 at 6:17 pm

   p.s.:

   I meant to refer to my debate on NSA with Profs. Carpenter and _Paulsen,_ not Profs. Carpenter & Volokh.

4. Heidi Kitrosser - November 29, 2006 at 6:20 pm

   Oh, and one last thing — my reference to “safely bashing the President” was meant to be a self-effacing joke. If you’d like to know the details of my arguments about separation of powers please see the sources that I cite above and/or publications that you can find listed on my school website.

5. Concerned Citizen - November 29, 2006 at 6:36 pm

   MC: This is not a partisan issue, and comparing Travelgate to massive illegal activity that affects the freedoms of all Americans is just a tad ridiculous.

   I am, perhaps surprisingly, still a registered Republican, but I don’t think it makes sense to support policies and bureaucracies that give us secret laws, flagrant abuse of power, and steady erosion of essential liberties (particularly given the fact that these efforts do little to actually increase our security).

   “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.” – William Pitt, House of Commons, 18 Nov 1783.

   P.S. I must have missed when “progressive” became a dirty word.

6. Maryland Conservatarian - November 30, 2006 at 3:13 pm

   thanks for the detailed response; Two points:

   1) People working for the government assume certain obligatins – one of which s/b respecting classification of info. Even if the classification is over-hyped, that doesn’t enable some disgruntled partisan within to give it the Times. The alternative is that everyone becomes their own judge of what should or should not be classified. Jonathan Pollard, the Walkers, Robert Hanssen – would you be more merciful toward them had they given the info instead to the NY Times. To me, the NY Times enjoys no more rights to obtain info than you and I do and if it’s wrong to give it to us then it is wrong to give it to them.

   2) I’m of the mind that the NSA program is an appropriate use of the President’s constitutional authorities without running afoul of other rights and authorities. Obviously most of you disagree but that hardly brings it to the level of ignoring the law by this President. I’m of the mind that the national defense is one of the few core skills required & authorized of our federal government. NSA monitoring of phone calls (and not even taping the calls) just doesn’t get a rise out of me like the data collecting by our government of most of my significant financial transactions (W-2, 1099s, etc.) Further I don’t appreciate having my political contributions reported for all the world to see. And I don’t like every 10 years to have to report to the Feds my particulars – such as race and national origin. Of all the information gathering our government does, at least I know the NSA program was not designed as some cynical tool used to buy votes, support more taxes or pander to one or more aggrieved groups.

   “I would think that such massive government power over information flow would alarm any self-described “conservatarian.”

   you’re right – I don’t like massive government power over most information flows…or most other things – but given the choice between the military or the NY Times -I’m going to trust the wisdom, ethics and on-the-scene knowledge of those involved in our national defense to make the appropriate decisions.

   as to CC – the Travelgate line was meant to come across as tongue-in-cheek…as to the word “progressive” – I apologize if you call yourself a progressive and the association with the NY Times offended you.

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