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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, December 31, 2005

Threatening Administration critics with criminal prosecution

Yesterday’s report that the Department of Justice has opened an investigation into the disclosure of the Administration’s illegal surveillance program should come as no surprise. Wielding threats of criminal prosecution against those who speak out against the Administration is not a new tactic.

After the first Bush Treasury Secretary, Paul O’Neill, was fired, he became the primary source for Ron Suskind’s book, The Price of Loyalty, which was sharply critical of the Administration, revealing, among other things, that Bush had been pining for a war to oust Saddam since well before 9/11 ("from the very beginning"), and depicting Bush as a highly disengaged Chief Executive.

Within twenty-four hours, literally, the media was full of leaked stories claiming that O’Neill had violated laws and regulations governing the use of classified information, darkly suggesting that he had broken the law by giving certain documents to Suskind which were classified and that he was under investigation for possible crimes:

The Treasury Department said Monday it is looking into how a government document from the very early days of the Bush administration -- marked "secret" and outlining plans for a post-Saddam Iraq -- became part of a CBS "60 Minutes" broadcast Sunday night. . . .

Ousted Treasury Secretary Paul O'Neill, now an outspoken critic of the Bush administration, was a guest on the program, along with Ron Suskind, the author of a book for which O'Neill was the primary source.

O'Neill said on the program that the administration was preparing plans to move against Iraq "from the very beginning." The request for the investigation
came as O'Neill's comments critical of the Bush administration sparked a fury of controversy in Washington. O'Neill clashed with the president on deficit spending and tax cuts, which ultimately led to O'Neill's departure. . .

Asked if seeking the probe may look vindictive, [Treasury Department Spokesman Rob] Nichols said, "We don't view it in that way," according to Reuters news
agency.

Then, as now, the President’s followers raised the specter of criminal prosecution in the wake of damaging criticism of the President. The Washington Times led the charge:

The Treasury Department yesterday alerted its inspector general's office that a classified document was displayed by CBS News during the network's Sunday night interview with former Treasury Secretary Paul O'Neill. . . . Federal law prohibits the release of classified material that endangers U.S. national security.

A couple of months later, once the furor over O’Neill’s allegations had died down, the Treasury Department’s Inspector General quietly acknowledged that O’Neill did nothing wrong and no laws had been violated:

The report yesterday from Jeffrey Rush Jr. said no federal laws had been violated in the release of the documents but that Treasury needed to improve the way it handled sensitive documents.

Since then, it has become commonplace for the Administration and its supporters to use the threat of criminal prosecution against Administration critics. Recently, for instance, there were widespread calls, led by William Bennett, demanding a criminal investigation of Sen. Jay Rockefeller for stating his belief to foreign leaders that the invasion of Iraq was a fait accompli as early as January, 2002.

And when Democratic Senators objected to the cost of what they believed was the highly wasteful, multi-billion dollar "black ops" satellites program, the Administration disseminated leaked (and inaccurate) reports that the DoJ had begun a criminal investigation into Senators Rockefeller, Durbin and Wyden based on claims that they leaked classified information about the program when describing their opposition to it. And then there was the recent effort to accuse Sen. Harry Reid of engaging in criminal misconduct by commenting on whether Osama bin-Laden may be dead.

Unlike Britain, which has an Official States Secret Act making it a crime to disclose any classified information regardless of intent or harm, the United States has no such law, precisely because leaks are a time-honored and long-recognized vital tool for exposing and thereby deterring government wrongdoing. As Morton Halperin explained:

[G]eneral espionage statutes were not intended to be used to cover disclosures to the press and, if they were, this would do great harm. Congress recognized that there was massive over-classification of national defense information and that a statute that classified all such information would prevent the Congress and the public from gaining the information it needed to challenge government policies.

For exactly that reason, President Clinton vetoed legislation in 1995 which would have made it a felony to disclose any classified information, even though such a law would have obviously benefitted the Clinton Administration by preventing leaks which were embarrassing or damaging to his Administration:

President Clinton on Saturday vetoed a bill that would have criminalized the leaking of government secrets. The legislation, he said, might "chill legitimate activities that are at the heart of a democracy.''

The proposal had drawn criticism from news organizations which said it would stifle their ability to obtain information vital to the public."We must never forget that the free flow of information is essential to a democratic society,'' Clinton said in a statement. . . . .

"A desire to avoid the risk that their good faith choice of words -- their exercise of judgment -- could become the subject of a criminal referral for prosecution might discourage government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities,'' Clinton said. . . .

"Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive,'' he said.

"In such circumstances, this criminal provision would, in my view, create an undue chilling effect,'' Clinton said.

The "free flow of information" is exactly what the Bush Administration wants to prevent. In fact, it has taken to routinely wielding the threat of criminal prosecution against individuals who disclose information not which harms the national security interests of the United States, but which harms the political interests of the Administration.

The most preposterous claim from the moment the Times disclosed the NSA's eavesdropping outside of FISA is that the disclosure of the program endangered national security and helped al-Qaida. Such a claim is nothing short of farcical, since what was revealed was not our intelligence-gathering methods, but the fact that those methods were being implemented in violation of the law rather than in compliance with it. The only thing that was "damaged" as a result of this disclosure was the political interests of George Bush, whose deliberate and ongoing law-breaking stood revealed for the world to see.

In this regard, it is worth noting that the President does not have unfettered authority to declare any information he wants as classified. To the contrary, Section 1.8 of the still binding 1995 Executive Order governing the classification process specifically prohibits classifying information in order to conceal governmental wrongdoing:

(a) In no case shall information be classified in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

Information conveying the methods we use for engaging in surveillance of terrorists is plainly classified and ought to be. The fact that the President has ordered that the law be violated when engaging in surveillance plainly is not. And it was the illegality of the NSA's program, not the substance of its intelligence-gathering methods, which was disclosed here.

Supporters of the Bush Administration have, for some time now, been calling for the prosecution of its political opponents on these grounds. The Administration has itself used precisely such threats in the past against its critics, and the DoJ investigation into the whistleblowers who exposed the illegal NSA surveillance program (rather than the political officials who illegally ordered it) is simply the latest step towards intimidating and silencing Administration critics and whistleblowers with the threat of criminal prosecution.

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