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Thread: Obama administration spied on Fox News reporter James Rosen: Report [W:85]

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    Re: Obama administration spied on Fox News reporter James Rosen: Report [W:85]

    Quote Originally Posted by Sheik Yerbuti View Post
    working with someone to knowingly commit a crime is conspiracy and potentially worse, knowingly publishing classified information, as Rosen may have done, could violate the law I posted earlier.
    Actually, it's not illegal to publish classified material, with a few exceptions - one being cryptography, the law you posted. It's not relevant to this case which has nothing to do with codes, ciphers, or COMINT.

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    Re: Obama administration spied on Fox News reporter James Rosen: Report [W:85]

    Quote Originally Posted by Taylor View Post
    Actually, it's not illegal to publish classified material, with a few exceptions - one being cryptography, the law you posted. It's not relevant to this case which has nothing to do with codes, ciphers, or COMINT.
    Which part of the highlighted sections do you believe don't apply to Mr. Rosen?

    18 USC § 798 - Disclosure of classified information
    (a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
    (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
    (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
    (3) concerning the communication intelligence activities of the United States or any foreign government; or
    (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
    Shall be fined under this title or imprisoned not more than ten years, or both.
    (b) As used in subsection (a) of this section—
    The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;
    The terms “code,” “cipher,” and “cryptographic system” include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;
    The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;
    The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;
    The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.
    (c) Nothing in this section shall prohibit the furnishing, upon lawful demand, of information to any regularly constituted committee of the Senate or House of Representatives of the United States of America, or joint committee thereof.
    (d)
    (1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law—
    (A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and
    (B) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.
    (2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1).
    (3) Except as provided in paragraph (4), the provisions of subsections (b), (c), and (e) through (p) ofsection 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853 (b), (c), and (e)–(p)), shall apply to—
    (A) property subject to forfeiture under this subsection;
    (B) any seizure or disposition of such property; and
    (C) any administrative or judicial proceeding in relation to such property,
    if not inconsistent with this subsection.
    (4) Notwithstanding section 524 (c) of title 28, there shall be deposited in the Crime Victims Fund established under section 1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601) all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.
    (5) As used in this subsection, the term “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.[/QUOTE]

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    Re: Obama administration spied on Fox News reporter James Rosen: Report [W:85]

    Quote Originally Posted by sheik yerbuti View Post
    which part of the highlighted sections do you believe don't apply to mr. Rosen?

    18 usc § 798 - disclosure of classified information
    (a) whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the united states or for the benefit of any foreign government to the detriment of the united states any classified information—
    (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the united states or any foreign government; or
    (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the united states or any foreign government for cryptographic or communication intelligence purposes; or
    (3) concerning the communication intelligence activities of the united states or any foreign government; or
    (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
    shall be fined under this title or imprisoned not more than ten years, or both
    COMINT is the acronym for communications intelligence... not relevant.

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    Re: Obama administration spied on Fox News reporter James Rosen: Report [W:85]

    Quote Originally Posted by Taylor View Post
    COMINT is the acronym for communications intelligence... not relevant.
    You could be correct; and indeed, perusing the affidavit reveals the relevant statute is Title 18 usc § 793, not Title 18 usc § 798

    18 U.S.C. § 793 : US Code - Section 793: Gathering, transmitting or losing defense information

    (d)Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

    ... and ...

    (g)If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

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    Re: Obama administration spied on Fox News reporter James Rosen: Report [W:85]

    Quote Originally Posted by Sheik Yerbuti View Post
    You could be correct; and indeed, perusing the affidavit reveals the relevant statute is Title 18 usc § 793, not Title 18 usc § 798

    18 U.S.C. § 793 : US Code - Section 793: Gathering, transmitting or losing defense information

    (d)Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

    ... and ...

    (g)If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.
    I'm not sure (d) applies because he did not have lawful possession or access. They've certainly accused him of conspiring, but if he's guilty of that, so is just about every major reporter in Washington... hundreds or thousands.

    The government would also have to demonstrate why the information relates to national defense -not just national security but to the defense of the nation, including evidence that he understood it as such. Based on the information currently available, the idea that he conspired to knowingly publish information critical to the defense of our nation seems silly... it's not like he published information on how to build nukes, or on vulnerabilities to our military infrastructure.
    Last edited by Taylor; 05-22-13 at 04:11 AM.

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    Re: Obama administration spied on Fox News reporter James Rosen: Report [W:85]

    Quote Originally Posted by Taylor View Post
    I'm not sure (d) applies because he did not have lawful possession or access. They've certainly accused him of conspiring, but if he's guilty of that, so is just about every major reporter in Washington... hundreds or thousands.
    Well he can't possibly be innocent of section (d) unless he's guilty of section (g). As far as other reporters, they are irrelevant. That's like complaining that you got a speeding ticket while everyone else around you was also speeding. That certainly doesn't render you innocent.

    Quote Originally Posted by Taylor View Post
    The government would also have to demonstrate why the information relates to national defense -not just national security but to the defense of the nation, including evidence that he understood it as such. Based on the information currently available, the idea that he conspired to knowingly publish information critical to the defense of our nation seems silly... it's not like he published information on how to build nukes, or on vulnerabilities to our military infrastructure.
    The government only needs to demonstrate that if they're going to prosecute him, which so far, they have not done (though they did charge Kim). Regardless of whether or not he violated that statute, there was enough probable cause to issue a court ordered warrant.

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    Re: Obama administration spied on Fox News reporter James Rosen: Report [W:85]

    Quote Originally Posted by Sheik Yerbuti View Post
    Well he can't possibly be innocent of section (d) unless he's guilty of section (g). As far as other reporters, they are irrelevant. That's like complaining that you got a speeding ticket while everyone else around you was also speeding. That certainly doesn't render you innocent.
    He isn't guilty of (d). The way I read it, to conspire you only need to have knowledge that your partner(s) are guilty of (d), but admittedly there's a bit of ambiguity given that first line in (g).

    As far as other reporters, they are only irrelevant if you don't believe there should be equal protection under the law.
    The government only needs to demonstrate that if they're going to prosecute him, which so far, they have not done (though they did charge Kim). Regardless of whether or not he violated that statute, there was enough probable cause to issue a court ordered warrant.
    They aren't going to prosecute because it would never stand up in court. I doubt it was ever their intent.

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    Re: Obama administration spied on Fox News reporter James Rosen: Report [W:85]

    Quote Originally Posted by Taylor View Post
    He isn't guilty of (d). The way I read it, to conspire you only need to have knowledge that your partner(s) are guilty of (d), but admittedly there's a bit of ambiguity given that first line in (g).

    As far as other reporters, they are only irrelevant if you don't believe there should be equal protection under the law.

    They aren't going to prosecute because it would never stand up in court. I doubt it was ever their intent.
    Not sure how you figure there's an issue with equal protection given there are no less than 20 other reporters who've been targets of investigations? At any rate, with the appearance of the law above being violated, there was sufficient probable cause for the warrant.

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    Re: Obama administration spied on Fox News reporter James Rosen: Report [W:85]

    Dana Milbank thinks this assault on the First Amendment is more serious than the Benghazi and IRS scandals and explains why--whether you're liberal, conservative, or not paying attention--you should care and how serious this is:

    "To treat a reporter as a criminal for doing his job — seeking out information the government doesn’t want made public — deprives Americans of the First Amendment freedom on which all other constitutional rights are based. Guns? Privacy? Due process? Equal protection? If you can’t speak out, you can’t defend those rights, either."

    Beyond that, Milbank says, "the administration’s actions shatter the president’s credibility ."

    Dana Milbank: In AP, Rosen investigations, government makes criminals of reporters - The Washington Post

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    Re: Obama administration spied on Fox News reporter James Rosen: Report [W:85]

    Quote Originally Posted by Sheik Yerbuti View Post
    At any rate, with the appearance of the law above being violated, there was sufficient probable cause for the warrant.
    Funny thing is, after doing some additional checking, I was right - 793(d) doesn't apply to the Rosen because he didn't have lawful possession or access - the correct section would have been (e) - so you really have to wonder about the level of scrutiny applied by the judge.

    See Senate Report #2369, part 1, 81st Congress, 2nd session (1950):
    "The only difference between subsection (d) and subsection(e) of section 793 is that a demand by the person entitled to receive the items would be a necessary element of an offense under subsection (d) where the possession is lawful [compared to (e) where possession is unauthorized]"

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