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Thanks for the list. Not implying anything is cut and dry. Pointing out that in nearly a century, 8 of 11 cases are sourced in this decade. That's the kind of t

Thanks for the list. Not implying anything is cut and dry. Pointing out that in nearly a century, 8 of 11 cases are sourced in this decade. That's the kind of thing that gets historians and political/critical theorists paying attention.

tptacek 13y ago
Something unusual is happening during the Obama administration vis a vis leaking. But we don't know what it is. Four broad, obvious possibilities: (1) More people are taking greater liberties with government secrets in 2013 than they did in, say, 2004. (2) The government is creating more "secrets", justifiably or not, and thus putting more people into contact with secrecy and creating a greater risk. (3) The Obama administration is working more diligently to monitor the handling of secret information, so that leaks that wouldn't even have been detected in 2004 now are. (4) The Obama administration has a more punitive attitude towards leakers, so that leaks that would have resulted in a slap on the wrist in 2004 now produce criminal prosecution. All four can be true. Also, I think it's important to bear in mind that our sympathies with specific cases (best example: Bradley Manning) aren't dispositive. It is simultaneously possible for someone to have done something for the greater good --- and even for that thing to have achieved the greater good --- and still have that act merit criminal prosecution. This gets to the issue of "rule of law, not of men", and requires you to consider that your definition of "the greater good" can differ sharply with definitions of other people; consider, for instance, my zealously pro-life Catholic aunts, or the militia movement. Relatedly: it's important to understand that supporting a prosecution doesn't demand support for conviction; it can simply mean that one believes something more formal and "accountable" than the discretion of officials combined with public sentiment should govern the acceptability of a breach of trust with the USG. Looking at the list of cases I presented: * Three of the cases (Liebowitz, Sterling, Kim) don't involve terrorist threats on the US, but rather foreign policy and counterproliferation. Leaks of actual active foreign intelligence might demand a stricter review standard. * Two of the cases (Snowden and Manning) were so monumentally huge that there may have been no possible outcome other than a court case of some sort. That leaves Drake and Kiriakou. I read the FAS archive of filings on Kiriakou and came away thinking that, regardless of my extremely negative feelings about CIA-run interrogations in the Middle East, his prosecution wasn't egregious: https://news.ycombinator.com/item?id=5796162 https://news.ycombinator.com/item?id=5796162 Drake, I don't know. My personal guess as to ranked order of the 4 factors above: (3), (1), (4), (2).
- bobwaycott 13y ago
  Excellent points, thanks. I hold fidelity to the rule of law of paramount importance. Of equal importance, however, is the principles behind preserving a democratic republic that realizes the greatest possible equality, justice, and freedom for a maximum plurality of citizens. I judge laws and their executions by the latter standard, and I interrogate achieving the latter standard by upholding the former. They should operate in the public sphere in much the same way as we've established branches of government to serve as checks and balances against each other. As a defender of civil disobedience as a means to preserve principles while maintaining fidelity to law, I definitely hold that, while one may legitimately be justified as a civil disobedience if one meets the criteria, this does not absolve one of the status of lawbreaker and merit a need for legal review and/or criminal prosecution of one's disobedient acts. So, I think we agree on that point--including that supporting fidelity to law vis à vis prosecution does not equal supporting conviction and imprisonment. I also find it is not inconceivable that one could oppose prosecution in certain cases where the principles are of such grave concern or endangered in such a fashion that prosecution, and especially conviction, can further erode protection of the principles that ought to be preserved and protected by a just society. Also, if one sees a juridical trend in which the courts' decisions appear to be failing their purpose in the contracted balance of powers, I think we hit a point where, from a critical theoretic point of view, we've got serious trouble. If an executive is trampling the Constitution (or viewed to be doing so by a significant portion of the population), and the legislature is not reigning abuse of power in via specific legislation, and the courts are either passing on or showing deference to the executive (for debatable reasons), where else do the citizens turn in their desire to maintain fidelity to law and protect established principles? (By the way, I'm not trying to suggest some water-the-tree-of-liberty-with-the-blood-of-tyrants nonsense. History is replete with great examples of tyrants, and none of them have been sourced in the American presidency yet.) The Espionage Act itself, and its amendments, have been the subject of historical, legal, and philosophical criticism. Using it with such frequency to pursue leakers is an interesting historical turn that is, to my knowledge, quite unique to this administration. But I admit that despite my undergrad- & grad-level courses in 20th-century American history, my awareness is likely colored at this point by the frequency with which the Espionage Act is being applied and discussed in such a concentrated period of time. I'd be quite interested in seeing more information specifically on factor 1, but from a broader frame of reference that encompasses liberties taken with government secrets since WWI and the Espionage Act's enactment. If we had enough information on factor 2, that would also be enlightening. Factors 3 and 4 appear to be somewhat discoverable, if enough information was available for interrogation. One could determine the viability of factor 3, while factor 4 is the only one that starts to wander into somewhat speculative territory (at least until we're far enough beyond the Obama administration that we can interrogate primary sources to determine its explanatory power). You're right that all four factors (and perhaps more) can be true. Anyway, thanks for the thoughts. I'm going to try digging up more info on these cases.

tptacek 13y ago

Something unusual is happening during the Obama administration vis a vis leaking. But we don't know what it is. Four broad, obvious possibilities: (1) More people are taking greater liberties with government secrets in 2013 than they did in, say, 2004. (2) The government is creating more "secrets", justifiably or not, and thus putting more people into contact with secrecy and creating a greater risk. (3) The Obama administration is working more diligently to monitor the handling of secret information, so that leaks that wouldn't even have been detected in 2004 now are. (4) The Obama administration has a more punitive attitude towards leakers, so that leaks that would have resulted in a slap on the wrist in 2004 now produce criminal prosecution. All four can be true. Also, I think it's important to bear in mind that our sympathies with specific cases (best example: Bradley Manning) aren't dispositive. It is simultaneously possible for someone to have done something for the greater good --- and even for that thing to have achieved the greater good --- and still have that act merit criminal prosecution. This gets to the issue of "rule of law, not of men", and requires you to consider that your definition of "the greater good" can differ sharply with definitions of other people; consider, for instance, my zealously pro-life Catholic aunts, or the militia movement. Relatedly: it's important to understand that supporting a prosecution doesn't demand support for conviction; it can simply mean that one believes something more formal and "accountable" than the discretion of officials combined with public sentiment should govern the acceptability of a breach of trust with the USG. Looking at the list of cases I presented: * Three of the cases (Liebowitz, Sterling, Kim) don't involve terrorist threats on the US, but rather foreign policy and counterproliferation. Leaks of actual active foreign intelligence might demand a stricter review standard. * Two of the cases (Snowden and Manning) were so monumentally huge that there may have been no possible outcome other than a court case of some sort. That leaves Drake and Kiriakou. I read the FAS archive of filings on Kiriakou and came away thinking that, regardless of my extremely negative feelings about CIA-run interrogations in the Middle East, his prosecution wasn't egregious: https://news.ycombinator.com/item?id=5796162 https://news.ycombinator.com/item?id=5796162 Drake, I don't know. My personal guess as to ranked order of the 4 factors above: (3), (1), (4), (2).

bobwaycott 13y ago
Excellent points, thanks. I hold fidelity to the rule of law of paramount importance. Of equal importance, however, is the principles behind preserving a democratic republic that realizes the greatest possible equality, justice, and freedom for a maximum plurality of citizens. I judge laws and their executions by the latter standard, and I interrogate achieving the latter standard by upholding the former. They should operate in the public sphere in much the same way as we've established branches of government to serve as checks and balances against each other. As a defender of civil disobedience as a means to preserve principles while maintaining fidelity to law, I definitely hold that, while one may legitimately be justified as a civil disobedience if one meets the criteria, this does not absolve one of the status of lawbreaker and merit a need for legal review and/or criminal prosecution of one's disobedient acts. So, I think we agree on that point--including that supporting fidelity to law vis à vis prosecution does not equal supporting conviction and imprisonment. I also find it is not inconceivable that one could oppose prosecution in certain cases where the principles are of such grave concern or endangered in such a fashion that prosecution, and especially conviction, can further erode protection of the principles that ought to be preserved and protected by a just society. Also, if one sees a juridical trend in which the courts' decisions appear to be failing their purpose in the contracted balance of powers, I think we hit a point where, from a critical theoretic point of view, we've got serious trouble. If an executive is trampling the Constitution (or viewed to be doing so by a significant portion of the population), and the legislature is not reigning abuse of power in via specific legislation, and the courts are either passing on or showing deference to the executive (for debatable reasons), where else do the citizens turn in their desire to maintain fidelity to law and protect established principles? (By the way, I'm not trying to suggest some water-the-tree-of-liberty-with-the-blood-of-tyrants nonsense. History is replete with great examples of tyrants, and none of them have been sourced in the American presidency yet.) The Espionage Act itself, and its amendments, have been the subject of historical, legal, and philosophical criticism. Using it with such frequency to pursue leakers is an interesting historical turn that is, to my knowledge, quite unique to this administration. But I admit that despite my undergrad- & grad-level courses in 20th-century American history, my awareness is likely colored at this point by the frequency with which the Espionage Act is being applied and discussed in such a concentrated period of time. I'd be quite interested in seeing more information specifically on factor 1, but from a broader frame of reference that encompasses liberties taken with government secrets since WWI and the Espionage Act's enactment. If we had enough information on factor 2, that would also be enlightening. Factors 3 and 4 appear to be somewhat discoverable, if enough information was available for interrogation. One could determine the viability of factor 3, while factor 4 is the only one that starts to wander into somewhat speculative territory (at least until we're far enough beyond the Obama administration that we can interrogate primary sources to determine its explanatory power). You're right that all four factors (and perhaps more) can be true. Anyway, thanks for the thoughts. I'm going to try digging up more info on these cases.