Tuesday, February 24, 2015

Lawfare. A remarkably snide post by a recent graduate of Yale Law.

Mysterious Discretion: When Journalists Wield Power We Don’t Understand
...I don’t find it ethically baffling that a leaker would decide to entrust sensitive documents to a journalist whose work he has long respected. Rather, I wonder about the place from which such trust derives. I wonder whether we have come to conflate journalism with truth-telling, and whether the inherent nobility of the profession has come to obscure the simple reality that its individual members—like members of any other profession—are driven by their own distinct agendas and ambitions.

Put differently, like anyone else, journalists are motivated by a lot of things, and truth is only one of them. This should not be a controversial observation. This is why I had a different take than Ben on James Risen’s “Twitter tirade” in response to Attorney General Eric Holder’s remarks last Tuesday on the Obama administration’s prosecution of leakers. I wasn’t perturbed that Risen is a New York Times reporter who also engages in some amount of constitutional doomsdayism on his Twitter account, or that Risen, a reporter who has been fighting the government for seven years to protect his confidential sources, is less than legally accurate on how the First Amendment applies to reporters when sounding the horn for free speech. If anything, Risen’s tweets had a performative quality that I have come to appreciate as the purpose of 140-character screeds: he seemed to pull as hard as he did on his end of the rope to counterbalance what he perceived as the government pulling hard in the other direction.

But one problem with all this pulling is you often do end up eliding the common ground you actually share with the opposition. For example, I think plenty of leakers and journalists agree with the general point that Holder made last week, that journalists shouldn’t publish leaks just because they can...
A comment from yesterday. It hasn't shown up on the page, and might not.
Don't pretend there's a unified non-contradictory logic that we call justice. Is all that is just pious? No. The genius of democracy and of no other form of government is the acknowledgment of irony. Police and prosecutors can be moralists but we make sure they're given powerful adversaries, even if those adversaries are just a little touched by nihilism.

Scalia from 2009:
This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is ‘actually’ innocent.
The Constitution refers to due process, not outcome. But we're stuck with the distance between the letter and the spirit of the law. We're left to judge, and who’s to judge? On the letter Scalia's right. To argue from the spirit is subjectivism, and subjectivism is chaos. But to argue only from the letter is cold, inhuman: unjust.

Democracy is based on trust, not rules. When all that's left are rules, it's over.
I think plenty of leakers and journalists agree with the general point that Holder made last week, that journalists shouldn’t publish leaks just because they can.
But if they do, is there a punishment? What's the difference now between a reporter and a citizen? A good question, and Greenwald hems and haws, but we don't have press licenses, and it wouldn't be a good thing if we did.

Leakers are a different matter; they broke the rules. But what if they leak evidence of crimes greater than their own? You seem to have a soft spot for the powerful. I have a soft spot for language. Put the big fish on trial first. I don't even care about the torturers; they're small fry. The question you have to ask yourself is whether you're more interested in defending the republic, or the state.

And since this site is called "Lawfare" and it suits my argument, here's one for your editor: "A German State for a German People". How's that sound? I'm not asking as a lawyer, since I'm not one. I'm asking as a Jew.

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