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Sunday, March 12, 2006

Heads They Win, Tails We Lose 

Courtesy of Zemblan patriot J.D.: We have been trying to decide what is the best way to empower our President to break the law when national security demands it, or when he can pretend that national security demands it, or when he feels a little frisky and just can't resist the urge, and we find that we simply cannot choose between two worthy alternatives currently being considered by Congress. Should we:

A) Retroactively legalize any criminal acts the President may undertake (the sunshine approach)? -- or:

B) Criminalize reportage of any illegal acts the President may undertake, thereby ensuring that they will never come to public attention (the toadstool approach)?

Fortunately, we may not have to pick one or the other. Our legislators, in their Solomonic wisdom, have come up with a bill that incorporates the best of both approaches:
Reporters who write about government surveillance could be prosecuted under proposed legislation that would solidify the administration's eavesdropping authority, according to some legal analysts who are concerned about dramatic changes in U.S. law.

But an aide to the bill's chief author, Sen. Mike DeWine, R-Ohio, said that is not the intention of the legislation.

"It in no way applies to reporters — in any way, shape or form," said Mike Dawson, a senior policy adviser to DeWine, responding to an inquiry Friday afternoon. "If a technical fix is necessary, it will be made."

The Associated Press obtained a copy of the draft of the legislation, which could be introduced as soon as next week.

The draft would add to the criminal penalties for anyone who "intentionally discloses information identifying or describing" the Bush administration's terrorist surveillance program or any other eavesdropping program conducted under a 1978 surveillance law.

Under the boosted penalties, those found guilty could face fines of up to $1 million, 15 years in jail or both.

Kate Martin, director of the Center for National Security Studies, said the measure is broader than any existing laws. She said, for example, the language does not specify that the information has to be harmful to national security or classified.

"The bill would make it a crime to tell the American people that the president is breaking the law, and the bill could make it a crime for the newspapers to publish that fact," said Martin, a civil liberties advocate . . . .

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the language would allow anyone — "if you read a story in the paper and pass it along to your brother-in-law" — to be prosecuted.

"As a practical matter, would they use this to try to punish any newspaper or any broadcast? It essentially makes coverage of any of these surveillance programs illegal," she said. "I'm sorry, that's just not constitutional."
Thanks for your opinion, Ms. Dalglish; maybe they'll let you share a cell with Kate Martin when the bill goes through.

And while we're at it, can we please just ax that silly business about "tak[ing] care that the laws be faithfully executed" from Article 2 of the Constitution? It might have made sense back in the day, but now? Plainly the founding fathers were too short-sighted to appreciate how such an onerous requirement could hamstring our Commander-in-Chief during undeclared-wartime.

UPDATE: Go Russ go.

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