Put Novak in Jail - by Linda Hirschman, JD, PhD

I'm quoting this in full because it's a letter to Media Whores On-Line - I think the writer just wants to "get this out there", and Media Whores On-Line doesn't have permalinks.

If you do try to look this up on MWO, go to the website, then go to the bottom of the page, and keep clicking on 'Previous Issue' till you get back to Wednesday, 1 October 2003.

http://www.mediawhoresonline.com/

In a way, I understand Will Pitt's argument - posted elsewhere on General Discussion - that although Novak sucks, journalists shoudn't have to reveal their sources, so we shouldn't go after Novak.

However, there is something unusual here: The "source" in this case wasn't a whistleblower: The source was breaking the law by talking, so the act of talking and cold-calling was a crime in itself. Also, unlike real "whistleblower" cases, what was revealed was not some newsworthy law-breaking act - what was revealed was an innocent woman's CIA cover, and thereby national security was compromised.


Put Robert Novak in Jail
(and throw away the key)
by Linda Hirshman

Am I the only one who’s noticed that Robert Novak violated the Espionage Act? The federal law, punishable by up to ten years in jail, punishes outsiders who engage in "a pattern of activities" intended to reveal the identities of covert operatives (assuming such identities are not public information, which is virtually always the case). Certainly willingly participating in an overt “administration” campaign to out a U.S. Intelligence operative in order to punish her husband for telling the truth about the WMD fiasco would qualify as such activity.

The law also explicitly punishes insiders who leak classified information. Novak has been so closely tied to the Administration, defending it and participating in its campaign to use friendly journalists to punish its enemies, that he would also qualify as an “insider” whom the law explicitly forbids to publish than a journalist anyway. Consider that six other real journalists were offered the career making leak and turned it down. Only Novak, the opinion flak for the Republican party published it.

If John Ashcroft’s Justice Department were not entirely corrupt they’d call a grand jury and threaten Novak with prosecution under the Espionage act and then offer to cut him a deal if he names his sources. If he doesn’t tell, they can prosecute him and subpoena his notes as evidence against him. (If they had acted in a timely fashion he wouldn’t already have shredded them.

Or call a grand jury and subpoena him as a witness in the investigation of the leakers. All the talking heads (journalists all, I might add) have been hawking the line that investigations of leaks all fail, because the only person who knows who violated the nation’s security is the journalist and of course the journalist won’t tell. Balderdash!! There is no constitutional or statutory protection for journalists.

Contrary to self-serving journalist’s propaganda, the Supreme Court has repeatedly refused to interpret the First Amendment to protect journalists from the operation of otherwise constitutional law enforcement. (Branzburg v. Hayes, 1972) Although some states and lower federal courts have recognized some qualified privilege in some circumstances, it is extremely unlikely that a court would find a privilege in the grand jury where espionage is concerned. And the Ashcroft Justice Department is the gold medal winner of forum shopping for law n order judges who will bend to the prosecutor’s will where the law is unclear. Take Robert Novak to that Virginia place where John Walker Lindh went.

Witnesses who won’t testify go to jail for contempt. I suggest the cell that Father whatsisname, the pederast from Boston, occupied. Oh, and you may remember Whitewater. What Bob Novak did is no different from what Susan MacDougal did, except there’s a big difference between a little real estate hanky panky and naming the name of an undercover American spy, who’s trying to protect all of us from another September 11. Indeed, Novak is worse than Susan MacDougal for another reason. Susan wouldn’t tell on Bill Clinton for the very good reason that she says he didn’t do anything. Beyond cavil, the administration flunkies who tried to blackmail all potential Joe Wilsons into silence by threatening their own intelligence service did something. All Novak has to do is tell us who they are. Why is it so easy to contemplate a trailer trash like Susan MacDougal in leg irons but not the ever so establishment Novak, with his fancy wardrobe, his exaggerated vocabulary and universally condescending manner. The guy’s no different than the “interpreters” and “chaplains” they’re dragging off of planes from Guantanamo Bay. He sold the United States’s security from attack in exchange for the political interests of his masters in the Republican Party.

Maybe Robert Novak would like to take his three piece suit and sit in a federal prison with an incarcerated loony until the grand jury term runs out. Hey, there’s a John Peter Zenger in every generation. I doubt it. But a real democracy would test it out.

Linda Hirshman, JD, PhD
Retired Allen-Berenson Professor of Philosophy
Brandeis University

Linda:

I've often thought how the Starr chamber found it so convenient during the Clinton impeachment investigation/witch hunt to interrogate via grand jury -- all cross-examination, and no lawyers, and then they leaked the hot testimony.

While I can't go along with your characterization that "in a real democracy someone would check," I can wonder openly at why the press is making nothing of Ashcroft's failure to appoint a special prosecutor to investigation Novak-gate.

And yet it continues. Do you think it's because so few lawyers become journalists?

Robin Enos
Of the California Bar

furthermore Novak has shown no remorse for his actions in
tv appearances but instead has tried the line, well she
wasnt really covert, she may have just been an analyst" which
isn't flying.

I'd like to see the bastard off the tv shows and in a jail cell.
He knew better than to publish that name.

Cut to the chase, invoke the Patriot Act, arrest NoFacts, send him to Gitmo and interrogate him night and day without sleep or food until he confesses. No lawyers, no bail, no hearings, no charges. He's a fucking enemy combatant.

What's good for Abdul is good for Robert.

The Patriot Act is Unconstitutional on more than a few levels. Always has been, always will be. So now we're calling for the EXPANSION of it?

I'm sickened by what we've done to "Abdul". That doesn't mean it's right to do it to "Robert". We should be FIGHTING the Patriot Act, NOT TRYING TO EXPAND IT.

The letter refers to the Espionage Act, which is entirely different.

Hypothetical: An anonymous source reveals to a journalist the date and location of the Normandy invasion. If that journalist publishes that beforehand, is he or she simply relating information and therefore free from criminal liability?

That's the Will Pitt argument, in another form (he is, of course, free to dispute this contention). There is no slippery slope here. Oh, if we lock up the guy that revealed the D-Day thing, rather than simply the source, that would lead to the end of journalism. Bullshit, and bad reading of the extant law, and damn bad even from a common sense perspective.

"In my view it is unfortunate that some of my Bretheren are apparently willing to hold that the publication of news may sometimes be enjoined." --Justice Black

It's also unfortunate in my view that some at DU would espouse imprisoning reporters for accurately reporting facts, regardless of their reasons for doing so.

"Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints." --Justice Black

Censorship, injunctions, or prior restraints...WHATEVER THE SOURCE.

"These disclosures may have a serious impact. But that is no basis for sanctioning a previous restraint on the press." --Justice Douglas

That didn't keep the CIA from asking that the information not be reported...I wonder why they didn't seek an injunction? Could it be that they knew they'd LOSE?

"The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental supression of embarrasing information." -- Justice Douglas

Well, this is certainly embarrasing information that the wife of a diplomat is CIA, isn't it? Parts of the government (and CIA is part of the Executive Branch) obviously didn't want that information out there...

"Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the First Amendment 's ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such cases may arise only when the nation "is at war," {Schenk}. --Justice Brennan

This was written during Viet Nam. Yet they STILL held that the papers could be published. Tell us, is the "war" we're in now more dangerous than the war in Viet Nam was?

the post I replied to.

we don't need no steenking First Amendment?

Free press...."fundamental to a structured order of liberty"...all that jazz...

What Civil Liberty will we be screaming to trash next because it gives us something to use against Bush?

I think I'm going to be sick now....

killed and their families because Novak decided to be a
tool and not a journalist. If six others decided to hold
to journalistic ethics, then it points out that not only
is Novak not a journalist but that he is a flack for the
hack in the white house.