Error Theory

After seeing David Horsey's political cartoon today (via Michelle Malkin) I decided to call his editors at the Seattle Post-Intelligencer to find out whether they are sane.


(Peee-ulitzer winner's sick-toon.) 

I phoned editorial page editor Mark Trahant (his number here), and told him I think Horsey's cartoon is slanderous. Trahant's voice got high and tight as he insisted that the cartoon is accurate. He then started reading an explanation that Horsey had left for him. Horsey's explanation is based on the story of the Afghan prisoners who died during interrogation, as reported in detail by the New York Times four days ago. I protested that the Afghan killings were from over two years ago. Trahan shouted something unintelligible, and hung up.

When he answered again I said: "DON'T hang up on me," and we managed to have a small bit of a conversation. I suggested that the age of the Afghan cases matters because Horsey clearly implies that there is an ongoing problem of prisoners being brutalized to death. He implies that the abuse is current by having the officer in the cartoon cite this week's Newsweek story while a dead body is dragged out behind him, but all the evidence is that abuse is NOT an ongoing problem. The New York Times article was based on leaks from a 2000 page criminal investigation that the Army compiled over the last two years. The Army has investigated and is punishing what wrongdoing occurred. Trahant tried to maintain the Army's ongoing culpability by noting that: "The Army did not reveal the Afghan prisoner abuse." I answered that the Army's job is not to publicize abuse but to correct it, and they have done that.

Publicizing military bad behavior is not automatically the Fourth Estate's job either. As I said in my earlier post on the NYT story, there is no public interest in exposing military bad behavior that the military is dealing with. The same was the case at Abu Ghraib. What minor bad behavior was involved (otherwise acceptable humiliation of terrorists for intelligence purposes was undertaken by careless and unregulated silly people) had already been brought under proper control and criminal investigations were in process. As with the Afghan story, the news initially came out via the internal investigations that were appropriately dealing with what had occurred. There was no public interest in exposing what the Army had already corrected. Just the opposite, exposing Abu Ghraib did a huge public disservice, but this is what Isikoff and Mapes and others were awarded prizes for by their compatriots in the MSM.

The only difference between the Afghan story and the Abu Ghraib story is that the NYT's Afghan story was based on illegal leaks of classified information, while Abu Ghraib was based on private leaks of unclassified soldier's photos. The MSM asserts that its "gold standard" is two independent sources for anonymously sourced stories. How about also considering whether the leak is criminal, and whether there is a public interest in publishing it.

The issue of criminality is obscured in some cases by the precedent established by the Pentagon Papers case. As I understand it, the Supremes ruled that outrageous behavior on the part of the government so muddied the case that Daniel Ellsberg could not be criminally prosecuted for leaking classified documents. But this confusion does not apply to recent cases (the Afghan story and the pre-election release of a trumped-up pessimistic report on Iraq). Far from behaving outrageously, the government is doing exactly what it should. Our military has acted promptly and thoroughly to correct and prosecute incidents of wrongdoing. Now it is the media's turn. The NYT and its sources should be investigated for criminal wrongdoing when they publish classified information. Horsey's slander and the Abu Ghraib reporting fall into a different class. They do not involve any statutory criminality, but they most certainly are morally criminal.

Zell Miller gets it. His answer to a question by Captain Ed:

ZM: Well it would help if we had more in the media who understand that when they criticize America or the military or anything that relates to this country, when they criticize that, it's magnified many times over overseas. An example is the Newsweek situation. They should have known better than to have done that. Even if it's true they ought not to have printed it. It's not true, but even if it were true, they should not have printed it because they knew—anyone would know that it would cause riots, people being killed. There are certain things that the media should and should not do when we're at war, and we're at war.

James McCormic suggests that the NYT is "circling the wagons" with its Afghanistan article, presenting a story of old errors corrected as fresh outrage in an attempt to take the heat off of Newsweek and put it back on the Army (where Newsweek originally tried to put it). Horsey's sick-toon manifests this strategy with all the deformed exaggerations of caricature that are the political cartoonist's bread and butter. Newsweek is attacked? Hurl slanderous lies at the military. No hint that he realizes that it is his own bias that is revealed to be deformed and exaggerated to the point of grotesque caricature.

Great quote from retired Air Force General Thomas McInerney, commenting on another case of the mainstream media making unfounded accusations against the U.S. military (Linda Foley's accusation that soldiers are murdering journalists):

It may be legitimate to investigate whether there may or may not have been an incident in which U.S. troops have targeted journalists, but there is no question at this point that major media figures are targeting the men and women of the United States military in Iraq, repeatedly and with no evidence.

They are acting like a Michael Moore army, using what remaining influence they have to tell the lies that might allow them to crush their critics and retain their influence. In an age when lying is getting easier and easier to expose, this does not look like a propitious strategy, but it is the only one available to them, because LIARS IS WHAT THEY ARE.


UPDATE: After reading the Pentagon Papers decision by the Supreme Court (New York Times v. United States, 1971), my above characterization of the case requires modification. I was conflating Ellsberg’s criminal trial (which did not reach the Supreme Court) with the question of whether the New York Times could legally publish the classified papers (which did reach the Court). It was Ellsberg’s prosecution that fell through on grounds of improper government behavior (Liddy and Hunt broke into the office of Ellsberg’s psychiatrist). In the Supreme Court case, publication was allowed on the grounds that the executive branch had not met the necessary burden of justification for restricting freedom of speech.

Findlaw summarizes the precedent as follows:

The court ruled that the government had not proved that publication would inflict "direct, immediate, and irreparable harm to the national interest."

What is bizarre is that Justice Stewart arrived at this conclusion after arguing that this determination was for the executive to decide, not the courts:

But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court. [At 730.]

I think the Court SHOULD exercise oversight here, but come on, Stewart had just claimed it shouldn’t!

Justice White’s concurrence is even weirder, arguing that publication by the New York Times might well be criminal, but asserting that this cannot justify an injunction. The Times must be allowed to commit the crime, THEN the legal system can act. This is how he interprets our ESPIONAGE laws. We are not allowed to interdict Benedict Arnold. We have to let him commit his treason, then we can execute him, but we can’t stop him.

Justice Black’s opinion for the Court asserts that there can be NO restrictions on freedom of speech. Evidently he would deny that we can even punish Benedict Arnold AFTER the fact, in spite of explicit Constitutional provision. Holy cow, what a bunch of morons. Blackmun is one of the few who made any sense:

I hope that damage has not already been done. If, however, damage has been done, and if, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom "the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate," to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests. [At 763. Hat tip, Hugh Hewitt.]

What is astounding to contemplate is how Court has flip-flopped from its First Amendment absolutism in the Pentagon Papers case to its First Amendment annihilationism in upholding McCain-Feingold. In the latter case, the merest suggestion of a state interest in combating the appearance of impropriety was sufficient to justify unbounded regulation of political speech. Surely under this new precedent, war powers based restrictions on publishing classified intelligence are a slam dunk. (My post on constitutional annihilism in general, and its origins in Korematsu v. United States, here.)