2004/08/10

Time Reporter Held in Contempt in CIA Leak Case

It's an interesting constitutional case, and the First Amendment will undoubtedly be raised, because there are so many precedents involving it, but not on its merits. The First Amendment only protects the right to express and to communicate, not to withhold information. There is a right to privacy in the Ninth Amendment, but it is qualified by the public's right to know, on a question by question basis. It is like discovery in a civil case. The witness, whether before a grand jury or in a deposition, has the right to object to particular questions, and the matter may then be referred to the judge for a decision on whether the public's right to know prevails over the witnesses' right to privacy. That decision may, of course, be appealed to a higher court.

The only right to withhold information is in the Fifth Amendment, but, contrary to established precedents, that originally protected against not only being required to answer a question in a criminal case, or in the situation in which the witness might be incriminated thereby, but also questions that if answered truthfully, might tend to impair the witnesses' reputation or property interests. And, contrary to established precedents, the right originally applied on a question-by-question basis, not to testimony generally. In other words, a witness does not waive his right to withhold answers to some questions just because he agrees to testify on others.

See Shelton v. American Motors Corp., 805 F.2d 1323,1327 (8th Cir. 1986), which held that a party should not be allowed to depose opposing counsel without demonstrating that (1) no other means exists to obtain the information; (2) the information sought is relevant and not privileged; and (3) the information is crucial to the party’s case.

In Hart v. Frost, 73 Okl. 148, 175 P. 257 (1918) the judge held:

The court finds that in the case at bar the court prevented defense counsel from objecting to each question as it was asked . . . by overruling the defense's request to do so, even though the transcript does not specifically show what objections were overruled, interposed by the defendant. The court specifically recalls the nature of the statements made in chambers off the record . . . and it is the court's finding that all parties understood that the defendant's objection that was overruled was his request to interpose objections question by question . . . .


Also see United States v. Allee, 888 F.2d 208, 212 (1st Cir. 1989).

It is important to understand that the privilege of confidentiality is just that, a privilege. It has no basis in the Constitution. It is a matter of customary prudential deference, and offers the argument made above that it should be respected if there are other ways to obtain the same information, and only breached after it has been demonstrated that no other alternative is available.

This applies to any confidentiality custom, whether it be for a journalist, a religious counselor, a physician, or whatever. It is a matter of judicial discretion, and is based only on custom, the resistance that some kinds of witnesses can be expected to offer, and the support of it by powerful political groups.

Of more interest to me, as a constitutional historian, is the way the grand jury often is abused by being used as an inquisitorial tool by prosecutors. If a witness finds that the prosecutor is present in sessions of the grand jury, he should demand his right to be questioned by an independent grand jury which is not unduly influenced by a prosecutor or the judge, and to demand they not be present. Only the members of the grand jury and the witness should be in the room during questioning.

A weaker but potentially useful line of attack, as a political weapon if nothing else, is to challenge the statute which the grand jury is apparently attempting to enforce, namely, the statutory basis for charging someone with a crime for disclosing the identity of a federal agent. There is no constitutional authority for such a statute to be enforced against civilians, only against government personnel who have agreed to be subject to it, such as military personnel and militia in actual federal service.

The Treason Clause might be invoked for authority, but the answer to that is that there is no enemy declared by resolution of Congress, as required by the Constitution. No declared enemy, no applicability of providing "aid and comfort" to an enemy.

One may object that this doctrine of interpretation would leave us defenseless to real enemies. The answer is that the Constitution arguably needs to be amended to provide that power, but unless or until it is amended, no such authority exists.

Usual disclaimer: This is not legal advice. Using these arguments is unlikely to result in favorable outcomes. However, as a matter of original understanding and true law, they are correct. Just don't expect appeals to the Constitution as originally understood to be respected by today's courts.

2004/08/09

Stovepiping: The failure of bureaucratic responses to public threats


The term "stovepiping" is used to refer to the way that information from the lower levels of an organization is filtered, distorted, and compressed beyond usefulness for decisionmaking, in passing up the chain of command. the term has been coming into prominence since the public exposure of the way intelligence is reduced to about a two-page report for the president, the PDB, or "President's Daily Briefing" report. People have asked how all the
actionable intelligence gathered could enable the president to make informed decisions when it is thus filtered and compressed. The simple answer is, it can't.

However, the problem is not confined to the U.S. government. It is pervasive in all large hierarchical organizations, leading to calls to break them up and have the components proceed as a cooperating network, similar to the operation of small business entities in a healthy, competitive marketplace.

Some large organizations make periodic attempts to overcome this stovepiping effect by resorting to such devices as setting up "red teams", tasked to take contrarian positions in internal debates, much the way the judicial system conducts trials with an adversary system of opposing litigants and their counsels. Red teams are intended to dispel "groupthink", or the tendency to prematurely adopt a consensus position on some question and discourage dissent from it. The classic example of groupthink in action was the Bay of Pigs invasion, the result of no one challenging the plans as they were made. Others argue that the Vietnam war was another classic example of groupthink, even though there was dissent, especially among the public, the organizations making the decisions effectively excluded and ignored the dissent and failed to consider the sound arguments for it. (See "competitive diffusion processes" and why nationalism has a higher coefficient of diffusion than Jeffersonian republicanism and constitutionalism.)

Following are some links to further discussion of this topic:

Stovepiping:
http://www.newyorker.com/fact/content/?031027fa_fact
http://www.dodccrp.org/events/2004/CCRTS_San_Diego/CD/papers/171.pdf
http://www.thepoorman.net/archives/002133.html
http://www.leavenworth.army.mil/milrev/download/English/JulAug04/grau.pdf
http://www.narsil.org/politics/stovepipe1.html
http://www.hpti.com/objects/homeland.pdf
http://www.afsa.org/fsj/mar04/thielmann.pdf
http://www.fas.org/irp/congress/2004_cr/harman040104.html
http://www.cia.gov/csi/studies/vol47no1/article03.html
http://www.heritage.org/Research/HomelandDefense/EM828.cfm
http://reviews.infoworld.com/article/04/04/23/17OPcurve_1.html
http://www.usamnesia.com/2004/02/do-you-all-know-sy-hersh-americas-most.html
http://www.fas.org/irp/eprint/coia.htm

Red teaming:
http://www.fas.org/irp/agency/dod/dsb/redteam.pdf
http://www.hicksandassociates.com/whatwedo/red-teaming.html
http://www.sandia.gov/programs/homeland-security/red_teaming/redteam.html
http://www.janes.com/company/consultancy/red_team.shtml
http://www.cs.nmt.edu/~cs491_02/RedTeaming-4hr.pdf
http://www.ieaust.org.au/SafeAustralia/Presentations/Roberts/Redteaming1.ppt
http://www.au.af.mil/au/awc/awcgate/awc-sims.htm
http://www.redteamjournal.com/

Groupthink:
http://www.abacon.com/commstudies/groups/groupthink.html
http://en.wikipedia.org/wiki/Groupthink
http://www.afirstlook.com/archive/groupthink.cfm?source=archther
http://choo.fis.utoronto.ca/FIS/Courses/LIS2149/Groupthink.html
http://www.disinfopedia.org/wiki.phtml?title=Groupthink
http://www.groupthink.ca/

Innovation Diffusion Processes:
http://www.constitution.org/col/03317_diffusion.htm
http://www.ciadvertising.org/studies/student/98_fall/theory/hornor/paper1.html
http://mstm.gmu.edu/mstm720/Articles/DifussionOfInnovationsGlossary.html
http://www.context.org/ICLIB/IC28/AtKisson.htm
http://www.hq.nasa.gov/office/hqlibrary/ppm/ppm39.htm
http://www.convenor.com/madison/diffus.htm
http://www.personal.psu.edu/faculty/s/j/sjm256/portfolio/kbase/Systems&Change/ChangeProcess.html
http://outreach.missouri.edu/swregion/news/Publications/Diffusion%20theory.pdf
http://www.ou.edu/deptcomm/dodjcc/groups/99A2/theories.htm
http://web.cbs.dk/staff/damsgaard/abstract/doitheory.html

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