Posted by
NOTLEGALROADKILLYET on Thursday, January 25, 2007 11:49:13 AM
Treason is a pretty heavy word, and I use it reluctantly because the folks I am quoting use it. Today Powerline (one of the best conservative blogs) has a very long essay called "Is the New York Times a Law Unto Itself?"
The essay is quite good and worth reading, but I wanted to give my take on the following quote that appears at the end:
SO WHAT WAS the Times thinking when it published the Risen/Lichtblau story? Bill Keller purports to have satisfied himself that the publication of the story did "not expose any technical intelligence-gathering methods or capabilities that are not already on the public record." In his radio address on the publication of the story, however, President Bush flatly asserted that publication of the story "damages our national security and puts our citizens at risk." It is doubtful that even Keller believes that he is in a better position than the president to judge the consequences of the publication of the story. This is another point on which the Frontline interviewer appears not to have pressed Keller.
In his autobiography Radical Son, former Ramparts editor David Horowitz recounts an incident involving the magazine's 1972 receipt of a draft article by a pseudonymous National Security Agency employee. Horowitz characterizes his involvement in the publication of the article in Ramparts as "the most shameful or humiliating thing I ever did."
In the article, the NSA employee revealed that the agency had cracked the Soviet intelligence code and could read Soviet electronic communications at will. Deliberating over whether publication of the article might subject the magazine editors to prosecution under the espionage laws, Horowitz consulted prominent Harvard law professor Charles Nesson. (Nesson denies recollection of the conversation recounted by Horowitz.) Nesson was then working as a member of Daniel Ellsberg's defense team in connection with the government's prosecution of Ellsberg for removing copies of the Pentagon Papers and turning them over to the Times -- the incident underlying the Pentagon Papers case itself.
Horowitz relates that Nesson advised him that publication of the article would violate the law. In addition to providing certain technical guidance, according to Horowitz, Nesson advised:
To make its case in a court of law, the government would have to establish that we had indeed damaged national security. To do so, it would be necessary to reveal more than the government might want the other side to know. In fact, the legal process would force more information to light than the government would want anybody to know. On balance, there was a good chance that we would not be prosecuted. I had just been given advice by a famous constitutional law professor on how to commit treason and get away with it.
Viewing Keller's smug self-assurance in the Frontline interview, I don't doubt that he has relied on similar advice regarding the publication of the NSA terrorist surveillance story.
A recurring theme of this blog is that many of the problems in the legal system are a direct result of the legal system setting and enforcing its own legal ethics standards.
Institutionally, the legal profession does not want to obey the law, but rather, it wants to "expand" the law and Constitution. It will almost never punish or disbar an attorney who gives "expansive" legal advice, even when that advice includes instructions on how to commit treason without being prosecuted.
If the legal ethics system were controlled by non-lawyers, you can bet that lawyers would be more circumspect in the kind of advice given. Lawyers who have a real, as opposed to a phantom fear of losing their license are bound to be much more cautious.
Until the public demands a significant reform of the legal ethics system, we can expect lawyers to continue to promote treason and other distasteful actions.