Please go to this link (you may need to be registered in order to see the article). The second paragraph says it all:



1. Is this leaking excusable, at all?

2. Should the NYT be prosecuted for publishing this kind of classified information?

I once tried to figure out how many individuals is in a brigade. Couldn't find the info. Then I wondered about a platoon or company. Still no solid numbers. Somebody told me that this was done on purpose so the military can discuss troop levels in terms that only they understand.

So looks to me that the information given during a classified meeting has no real meaning at all. If information has no real meaning, is it even information? Nobody can use it for anything.

Meanwhile, the press is rampant with rumors of troop reductions during an election season. I wonder why this is?

1. First off, the title of this thread is off. The New York Times did not leak classified info on troops levels. It [published classified info on troop levels. There's a huge difference between those two verbs.

Read a little further in the article and you'll see this key phrase: General Casey's briefing has remained a closely held secret, and it was described by American officials who agreed to discuss the details only on condition of anonymity.

In other words, someone DELIBERATELY provided the Times with this information. It's highly dubious that this information was meant to remain "classified" in this political season. The next two paragraphs go on to describe "a senior White House official" providing further clarification. A "senior White House official" could be anyone from the press secretary, Chief of Staff, Secretary of State or Secretary of Defense or even higher up the food chain. A senior White House official leaking a story to the news media is not a big deal. Google the phrase and see how many hits you get.

2. Nope. Because this time they're doing it with the implicit consent and approval of The White House. There's nothing to prosecute.

Umm... let me help you, and a simple search actually provides this information. A Brigade can be as few as 3000 or as high as 5000 troops, depending on the function of the unit. Funny enough, the number they used in this article is 3500. This is also true when it comes to Platoons or Companies, but it's not that hard to find the respective information. I'm sure insurgent groups have a pretty good notion...

I believe that if the information is classified, there's a reason. If this had been Fox News or a Republican of any shade, there would be calls for a witch hunt.

However, as much as I deplore the NYT, this information doesn't necessarily tell a story that makes any significant difference in the operations of the insurgency. It's all hypothetical, and an awfully long time away. I don't suspect that insurgent groups have the foresight to plan 18 months in advance, nor has the military begun its withdrawl... so all is yet to be seen.

And to answer your partisan question... it could be construed in either direction. Really, any proponent for troop withdrawls could use this as a victory. Both sides of the aisle will undoubtedly carry this one into an election...

Sorry, that spin won't even make it a full 360 degrees. Information gets classified for a reason. And brigades have names. It's not like it would be that hard to find out which combat brigades are currently in Iraq.


Unless this official is senior enough to have the legal authority to declassify information, then there most certainly is something to prosecute. It doesn't matter if it was "meant" to remain classified. It's classified all the same.

1. Is this leaking excusable, at all?
No, it isn't. Blabbermouth takedowns...

2. Should the NYT be prosecuted for publishing this kind of classified information?
Yes. The knew it was classified. And the leaker(s) from the briefing should be court-martialed.

Regarding the size of different units, here's an example of why things can be so variable:

A modern US Army armor platoon consists of 4 M1 series tanks, each with a crew of 4 men. That's 16 men total. A Military Police platoon consists of 4 squads, each with 11 men, plus the platoon leader and platoon sergeant, for a total of 46 troops...

1. Is this leaking excusable, at all?

It's not clear to me from this story if the Pentagon signed off on it. Typically that happens. In that case, it would be. And it's not clear if it is actually leaking, as others have mentioned.

2. Should the NYT be prosecuted for publishing this kind of classified information?

I don't think so. I seriously doubt anything is here.

I was just curious, so I searched Lexis Nexis for "according to a classified..." or "according to classified...":

• Lexis Nexis television news transcripts: 86 matches between 2006 and 1992.
• Lexis Nexis major papers general news: 312 matches between 2006 and 1977.
• Lexis Nexis world news North and South American sources: 172 matches between 2006 and 1979.
• Lexis Nexis news wires: 275 matches between 2006 and 1982

Just a few examples:

"...according to classified law enforcement documents obtained by Fox News, the bad guys had the cops' beepers, cell phones, even home phones under surveillance. Some who did get caught admitted to having hundreds of numbers and using them to avoid arrest." - Carl Cameron, Fox News, December 14, 2001

"Iran is training and equipping as many as 5,000 terrorists in secret camps disguised to look like small villages, according to classified United States intelligence documents." - The Guardian (London) August 3, 1996

"According to classified intelligence documents obtained by USA TODAY, there were plenty of warning signs that an attack was imminent. A Pentagon report, expected to be released by early September, also will point out security and intelligence failures." - USA Today, August 26, 1996

"The newspaper report said that according to a classified document, on Jan. 31 an Israeli tank opened fire with a .50-caliber machine gun on the road in front of an American patrol, forcing the patrol to turn around." - Associated Press, March 17, 1983

Nearly every channel, every anchor, and every paper, right, left and middle, that you can think of. But it is only the New York Times that we're after today, huh?

Maybe this proves that the press is completely out-of-control! I don't think so. But I do think that Michelle Malkin is. Please be sure and forward this to her. Perhaps it will clue her in a little bit to what real journalism is like.

None of the other examples you mentioned involved classified information regarding American troop deployments in an ongoing military conflict. Besides, pointing fingers at everyone else doesn't excuse wrongful behavior. The "everybody does it" dodge is so...Clintonian.

If you're going to assume something wrongful has taken place, I'll go ahead and assume that something hasn't. Did the Pentagon ok the piece? I'll bet that they did. But feel free to assume that the Pentagon didn't. Neither of us yet has evidence about a "leak," or not.

I'll bet my reputation that nothing wrongful happened here (if you'll bet yours). My 'everybody does it' catalog were my examples of (nearly) everybody doing nothing wrong. I mentioned all of that, mostly as evidence of your, .... er, ahem, .... Michelle's, double standard. I didn't mention it to prove that everybody "gets away with it." Indeed, nothing has been done wrong.

This is what papers do, they ok stories with names and institutions mentioned in an article to be printed. It may be true that the NYT has run stories against the White House (or whomever's) wishes recently, but not this story.

"Clintonian" ... nice.

They obviously didn't declassify it, because the piece clearly stated that the report was classified. It underscored that point by saying:


To avoid any risk of plagiarism, I'll just repeat what your bogeywoman had to say in response to that:

George W. Bush is upset with The New York Times, but about an entirely different incident—the story on tracking terrorist funding.



http://www.whitehouse.gov/news/releases/20...20060626-2.html

The Casey story, except for Michelle Malkin and her insanely gaudy collection of posters (see BD’s link) doesn’t seem to be getting much traction from the angle played in this thread.

On the other hand, the tracking of the funding story is getting much coverage from that angle.

I personally think reaction to both incidents is yet another attempt to intimidate the Fourth Estate.

Joe Scarborough, who hosts a conservative show called Scarborough Copuntry, took an instant poll on this matter. As I post this, 73% or respondants do not think the NYT should be prosecuted.

http://www.msnbc.msn.com/id/13563783/

1. Is this leaking excusable, at all?

The Times has done nothing wrong.

2. Should the NYT be prosecuted for publishing this kind of classified information?

Absolutely not. Especially not for a program the White House itself announced in 2001! And on their website! Don't believe me! Look here: http://www.whitehouse.gov/news/releases/20...20011107-4.html

Really? That's fascinating. Now back to the subject of the thread, and the question that everybody seems to be avoiding for some reason: Should a news outlet be prosecuted for publishing classified information about troop deployments in time of war? If not, why not?

I would agree with the first statement here, but the question as to whether this still constitutes an issue remains. As you state, NT, NYT published classified info. Regardless of how that came into their possession, there is no doubt they knew it was classified. At some point, then, they are complicitous in this. The only argument against this would be that it's ok to widely distribute classified information that you manage to get your hands on. I find that a tough argument to support. Consider the argument that there is no doubt that if this information were deliberately given to UBL, it would be a crime. Why then would it not be an issue when it is even more widely distributed?



I would also agree with this. So, my quandry then is that while I disagree with the printing of classified documents in principle, I think the intent was indeed that this information became published. The who? and why? of the matter would be worthy of investigating. I suspect the 'liberal media' may have fallen into a trap here...releasing info the administration wanted to get out, while simultaneously doing so in a manner that lets the administration criticize them for doing so. Note that it is now difficult for this same media to even discuss the Valerie Plame incident, for how could a paper that knowingly published classified information criticize someone for, well, releasing classified information? Personally, I see Rove's handwriting all over this, and the media has fallen into the trap. Further, consider that this will therefore probably make the press a little more reluctant to publish such info in the future, making it a little easier for the administration to keep things under wraps in the future.



Again, I'm torn on this. I don't thing publication of classified information is a 'good thing', but I agree with most of your arguments above. This was meant to be released. Further, I don't think this is even harmful to the US effort--but I'm not sure our media should be in the position of determining which classified information its ok to release to the public, and which isn't. Isn't that supposed to be the job of those who classify the information in the first place? I highly doubt it is a good defense at one's court martial to argue that you didn't think that particular piece of classified information really deserved to be classified--it is either classified, or it is not. Providing a gray area completely undermines the whole concept of having classified information to begin with. Personally, I don't think any attempt at prosecution will even be made...the desired ends have already been achieved.

Washington D.C. leaks like a sieve and there's only two kinds of leaks. The leaks that are authorized and the leaks that are not.

I think you're right Hobbes that the Times may have fallen into a honey trap. The Number One issue dragging down Bush and the GOP in the upcoming elections is Iraq. By releasing this "classified" information to the newspaper, it allows the Administration to undercut the central campaign issue for the Democrats and gives the Bushies the ability to slap around the media which bolsters their standing with their base. It's a win-win and the fingerprints of Karl "T.B." Rove are probably all over it.

Oh sure, national security may be slightly compromised, but it's a political year and one thing the White House and the Republican majority can do that the Democrats can't is to set the agenda. They can act while the Dems have to react.

Sorry Blackstone, but I think you're trying to kill the messenger and not the guys who gave them the message.

I am all for a newspaper not being allowed to publish classified material especially concern troop movements and manning levels.

That being said, this not classified material. The military routinely publishes deployment orders for more than a year in advance. The number of brigade in Iraq is going to fall, because the current unit's deployments are ending and there are not as many brigades being sent to replace them. The draw down started nearly 6 months ago.

I knew that the rest of 101st was going to be withdrawn 2 months early for several weeks now. The unit is being rotated by to Campbell because their CG is leaving the division and does not want to have a change of command while half the division is Stateside and half is in Iraq. So to claim that this information is classified is a bit disingenuous.

1. Is this leaking excusable, at all?

There is a long history of leaks in Washington. Leaks by Congressmen, leaks by White House Staffers, leaks by CIA agents, leaks by just about anyone imaginable.

Some leaks are harmless. Some are official channels for distributing information to the press. Some seriously harm our national security.

In this particular case, this is a pretty harmless leak. Although it does deal with troop levels, it doesn't do so on an operational scale. It isn't about deployments or battle plans. It is about troop numbers in the most general sense and it is a hot topic. When will we draw down?

That said, there are damaging leaks that involve methodologies for catching terrorists. The recent leak about international banking monitoring is such a leak.

2. Should the NYT be prosecuted for publishing this kind of classified information?

For Casey's report on troop levels? I don't think so. For revealing highly classified methodologies used to catch terrorists? The AG should think about it.

Leaks and the Law



There is clearly a basis for prosecuting here.

As the article I linked shows, the history of leaks in the US has had some terrible effects. From not cracking the Japanese code before Pearl Harbor (after we had previously broken it and that fact was leaked) to not being able to fully investigate "Curveball" because the German intelligence feared our sieve-esque ability to keep secrets, our culture of leaks has harmed the United States.

Sometimes leaks are simply a eye-winking part of politics. Sometimes they seriously harm national security. In the latter case, which seems to be happening more and more frequently, it is time to say enough is enough.

Two problems with this theory. One, the administration gets no political advantage from this information getting out, especially given the fact that Bush immediately downplayed it right after it was published. How many people would change their vote from Democrat to Republican on the basis of this? I don't see it happening.

And Two, as another poster pointed out already, the administration has not criticized the Times for this story. Played it down, yes, but not really scolded them for it.



If you're referring to the people who leaked (thanks for the correction on the term) the info to the Times, I agree that they're also culpable. I didn't think there was any controversy over that point. The more pressing question is whether the newspaper that also publishes it is also culpable. I believe the law says they are. If that's the case, why should they get a free pass?



It was the newspaper itself making this "claim". Are you saying the Times was lying when it said it was classified material? Why would they falsely incriminate themselves like that?

So you're going by what the NYT defines as the size of a brigade, which the generals might have confirmed. Let's assume they did.

The entire lineup of troops in Iraq is stated at 128,000. If all are split into brigades of the 3,500 man size, that leaves 32.3 brigades altogether. Taking out 5 is a 15.5% reduction, 6 is an 18.6% reduction. That pretty much jives with all the other news reports about proposed troop reductions during the election season.

Meanwhile, how much you wanna bet that none of the numbers are true?

Anyway, upon rereading the article, the meeting itself was classified and secret. What was discussed there was not. It would have been a crime to write the article before the meeting happened, which of course was impossible due to the subject of the article.

Actually, it would have been a miracle of clairvoyance.

1. Is this leaking excusable, at all?

I don't think so - especially if it was done for political reasons, as seems apparent in this case. Whoever leaked this info to the press should be prosecuted.

2. Should the NYT be prosecuted for publishing this kind of classified information?

It was always my understanding that Title 18, Section 798 of the US Code referred to the original person doing the leaking - whether they communicated the info, transmitted it, or published it. If it refers to anyone who publishes classified information once it has been leaked, then (unless this meeting has since been declassified), any paper, magazine, news program, or blog that quotes the leaked information would also be guilty of violating the law and be similarly subject to prosecution. Indeed, unless this information has been declassified, Blackstone himself would be guilty of a crime for publishing that information here - and should be subject to a $10,000 fine and/or ten years in prison. He could, of course, argue that "the New York Times did it first", but that strikes me as being a bit... Clintonian.

There is an advantage. Republicans have been interchanging withdrawing from Iraq and redeploying to the area with “cut and run” defeatism. It is not necessary for Democrats to convince Republicans they should vote Democratic. Republicans just need a reason to stay home. The out of control spending and the public perception of erratic progress in Iraq offer two good reasons to do just that. If you can’t put a lid on spending you can alleviate uncertainty about Iraq by scaling back redeployments to the area, but you can’t credit the Democrats with a good idea. Ergo you talk out both sides of your mouth (this doesn’t change the fact that Democrats still capitulate to terrorism) and land on your feet by downplaying the story (things are going better than anyone expected).

Is this leaking excusable, at all?
According to current White House occupants that would depend on the source and whether the substance of the story is really confidential. This thread reminds me of the wonderful civics lesson in the Libby thread. Cheney didn’t tell the public he had the authority to declassify information classified by other government agencies via executive order until after Libby was formally charged. Is he the senior White House official the Times quotes or is it another Cheney aide? Without formal congressional oversight engaging the bureaucratic machinery bearing down with standardizing procedures to minimize the chances of politics playing a role in decisions like declassifying information, we may not find out for years.

The Times has no reason to care. Perhaps knowing there isn't anything they can do to shake off their reputation for aiding and abetting the enemy they have chosen to flaunt it. The Times doesn't care because the public doesn't care about stopping illegal wiretaps and checking federal and local governments from bypassing federal and local magistrates to gain private information about citizens. Why should the public put its collective foot down on this or the overseas banking leak? Those who will hiss at the Times are those who already have a deep distrust of the publication, and they alone can’t raise public awareness.

For that matter I ask, what war? Except for those with family deployed in Iraq and Afghanistan we share no personal stake in the outcome. This is especially true for the rich.

It refers to anyone who makes the classified information known "in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States". Since the information was published by the New York Times and plastered all over the news, the terrorists knew about it well before any random blogger or forum participant called attention to it. Therefore additional repetition would not have much of a chance of being prejudicial or detrimental to anything. Except the NYT's reputation.



Ah, I see. So if a U.S. citizen were to get a hold of military strategic plans for troop movements and transmit them to al-Qaeda, that wouldn't be treasonous because, "What war?" The things you learn on this board...

Nah, you don't see. Treason wasn’t what I had in mind when I asked, "What war?" Though I've no doubt that's what you had in mind when you responded.

It’s more like suspicion of circumstantial innocence of treason when it relates to the White House. Somebody should point out that no shared sense of risk during war and executive disregard for the separation of powers are good conditions for an echo chamber to take effect with the public. What better somebody than I?

And I still contend that it refers to the original person responsible for leaking the information, not to those who subsequently disseminate it. If, indeed, this information was "prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States" (and it appears, by all accounts, that it was not), then it is still the person who leaked that information who is the lawbreaker. The Code says nothing about those who further disseminate the leaked info. The guilty party is the leaker. Period.

This has always been the case. It's why the New York Times and Washington Post won the Pentagon Papers case. Interestingly, the Bush White House response to the publication of such materials is strikingly similar to that of Richard Nixon.

Even though it explicitly contains the word "publishes"?


They won that case because the court determined that the information contained was not prejudicial to national security. It said that at most, it was merely embarassing to the government. You'll note that although the leaker, Ellsberg, was put on trial for espionage and theft, he was not charged with releasing classified info.


He sought a court injunction to prevent further publication? He engaged in illegal activities to get at the leakers?

1. Is this leaking excusable, at all?

Yes, it is more than "excusable" as during the same time that the president heard of this draw down plan, the democrats were catching some fierce flak for their very similar plan which occured during the same time.

When the president and legislative branch republican try to use arguments about reductions as a political football against democrats, it's only right to report that he's considering doing the same thing. They got caught doing this, and now the NYT is catching some serious criticism. When you can't admit that you were hypocritically nailing the democrats on their plan, when you considered similar plans, well, then I guess you try to kill the messenger of bad news in order to stop being on the defensive and to deflect any criticism of the apparent contradition-a key tactic and habit of this administartion time and time again.


2. Should the NYT be prosecuted for publishing this kind of classified information?

How did this concretely hurt our effort? How did this in any way give the exact locations of our soldiers or hand over private documents to the enemy?

Absolutely. Should someone who is privy to classified information decide to publish that information (rather than communicating it to someone else), do you believe they should be exempt from prosecution? Obviously not. That's why the word "publishes" is included.


The actual per curiam decision reads as follows:
While some of the justices mentioned national security in their concurrences, it was not the basis of the decision.

Justice Stewart's opinion is interesting:
He could more accurately be describing the Bush administration than the Nixon administration.

Daniel Ellsberg was charged under the Espionage Act of 1917, which is very similar in wording to Title 18, Section 798 of the US Code and does, indeed, refer to the release of classified information ("any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, or information, relating to the national defence"), supplanting a 1911 act "to prevent the disclosure of national defence secrets".

You'll also note, by the way, that all charges against Ellsberg were eventually dropped.


I'm not sure to whom you're referring with your "he", but it remains to be seen whether or not the Bush administration will seek any injunctions. This heinous government still has a couple of years to run its course. As to whether or not they have engaged in illegal activities to get at the leakers, I guess that all depends on whether or not anyone at the New York Times has ever used AT&T, BellSouth, or Verizon when communicating with "White House sources" - or whether the Bush administration's illegal activities have been limited to securing phone records and warrantless wire-tapping.

In any event, the Bush administration's reaction has most certainly been Nixonesque. Read The Memoirs of Richard Nixon (pp. 508-515 on the Pentagon Papers) or some of his reactions reproduced at the National Security Archive, then read the recent press statements by George W. Bush and Dick Cheney.

Apparently, BlS, you haven't been following the news. The administration has been socializing the idea of troop drawdowns for quite a while, both in public and private. This is certainly not classified information. Rather, it is an attempt to raise approval ratings during an election season.

Sorry you're not able to grasp this simple concept.

Meanwhile, it is very true that the administration is using the treason card regarding the monitoring of bank accounts, which is allowed under regulations, but of course the administration throws those little annoying laws out the window in the name of terror.

But let's focus on a non-issue, okay? Sure

So when the White House leaks it, then it doesn't hurt national security. But if the media breaks the story, well, then we have entire battalions facing peril? Methinks the VP doth protest too much.

Once again, this is a political football here and merely stating it hurts national security doesn't make it so. We need a healthy and critical media that will call the administration, or any administration for that matter, out on things that need to be discussed. Look at what these guys have managed to get away with.


Arianna Huffington blog

None of this stuff hurts security or the troops, it only hurts the administration, which members of the administration can't stand-thus their scapegoating of the Times.

Wertz, the pentagon papers case dealt with prior restraint. See your cite:

Nothing in the pentagon papers case precludes the government from going after leakers after the fact. As you noted, Elsberg was indeed charged. Whether those charges are with merit notwithstanding, the government could certainly go after the Times here I think.


However the White House decides to release information, that information is then by definition de-classified. I don't remember electing Lichtblau, Calame, et al to anything.

No, it isn't. We've been over this before - at great length. This is tantamount to saying that the president can break the law at will. HE CAN'T. Nor can anyone else in the White House.

As this leak emerged from the White House, then someone in the White House should be prosecuted. End of story.

If the White House wants to declassify something, let them go through the proper channels of declassification and let Tony Snow announce it from the podium. Using "official leaks" to break news that might make the administration look "weak" or - to be perfectly accurate - hypocritical, is downright cowardly. Or, to use the word employed by Bush and Cheney, this is "disgraceful".

This bolsters the point I was making, which is that the court held that the classification of the materials itself was improper. It did not make its decision on the basis that the two defendants weren't the original leakers. That latter point didn't seem to come up at all in the court's legal reasoning.



Who said it doesn't hurt national security when someone in the White House leaks it? It still doesn't absolve the publishers for their actions.


Wow, this thread has certainly seen its share of irrelevant commentary, that's for sure. Just to remind you, the debate questions center around what should be done with those who publish classified information regarding military plans in time of war. I wasn't asking for a general assessment of how the media have been conducting themselves, let alone how accurate all of their reporting has been.

But that's exactly what you'll get when the information you're asking about wasn't classified and wasn't leaked.



"Was" could mean past tense. "Classified Report" could mean that the report was classified but had been declassified. You just don't know for sure.







Tell me about it.

Yet somehow, you seem to "know for sure" that it wasn't classified.

By the way, if the information was declassified, then the report either would have said it was declassified, or wouldn't have bothered saying it was classified to begin with.

Exactly. I've already told you that I'm playing your game. If you can assume that there was a leak, or that there was wrongdoing, then I can assume that there wasn't. You see where this is going?

In your world, entities with which you have a problem are guilty without evidence. I would like to see some evidence, fair enough?



Do you mean the article would have said that? This is another assumption. Newspaper and magazine articles call reports "classified," and talk about their contents, fairly often. I've already shown you that.

It doesn't mean that anything got leaked. Or that the reports weren't declassified. Or that the articles weren't ok'd for publication.

We don't know whether it was declassified thanks to super cool executive orders absolving the Executive of having to deal with standard procedures in declassifying information. Since the White House is answerable to no one during war and doesn’t have to volunteer what it declassifies to Congress or the public, why speculate about prosecuting the Times?

Well, there go your hopes for a career in psychoanalysis.


I already presented you with the evidence: The article itself. That's the prima facie evidence, so the burden of proof is on those claiming otherwise. All you've done in response is point to other articles that purportedly have done the same thing. The most that proves is that the law isn't being enforced very strictly. That's understandable, because in light of the Pentagon Papers case discussed above, it's probably rather difficult to prosecute someone for publishing information just because some bureaucrat has decided to put a "Classified" stamp on it - unless of course the information might legitimately warrant such a stamp. Say, oh, I don't know, information relating to current military plans in an ongoing war, for example?

It's tantamount to nothing. We debated this before, yes, and you convinced some people, including yourself. The 'decider in chief' can declassify anything he darn well wants. It's an executive branch issue, and he runs that branch.