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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.

Sunday, March 05, 2006

Bush's attacks on press freedoms escalate

(updated below)

One of the most under-publicized and under-discussed news events is the ongoing criminal prosecution under the Espionage Act of two employees of the American Israeli Political Action Committee ("AIPAC"), and more generally, the Bush Administration's broader, unprecedented assault on a free press of which the AIPAC prosecution is but a part.

I am no fan of AIPAC, to put it mildly, but as I’ve written about several times before before, there is a concerted effort well underway from this Administration to criminalize aggressive adversarial journalism, and this specific prosecution poses (by design) a very real and dangerous threat to press freedoms in our country. The New York Times this morning has a fairly thorough account of the issues raised by the AIPAC case:

The highly unusual indictment of the former officials, Steven J. Rosen and Keith Weissman, accuses them of receiving classified information about terrorism and Middle East strategy from a Defense Department analyst, Lawrence A. Franklin, and passing it on to a journalist and an Israeli diplomat. Mr. Franklin pleaded guilty and was sentenced to 12½ years in prison, though his sentence could be reduced based on his cooperation in the case. . . .

Some legal experts say the prosecution threatens political and press freedom, making a felony of the commerce in information and ideas that is Washington's lifeblood. Federal prosecutors are using the Espionage Act for the first time against Americans who are not government officials, do not have a security clearance and, by all indications, are not a part of a foreign spy operation. . . .

But the case has set off alarms among the policy groups, lobbyists and journalists who swap information, often about national security issues, with executive-branch
officials and Congressional staff members. They were not reassured by a remark from the federal judge hearing the case, at Mr. Franklin's sentencing in January, that the laws on classified information were not limited to government officials.

"Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law," the judge, T. S. Ellis III, said. "That applies to academics, lawyers, journalists, professors, whatever."

A January legal brief by lawyers for Mr. Rosen and Mr. Weissman — written in part by Viet D. Dinh, a conservative former assistant attorney general in the Bush Justice Department — argued that the charges were a dangerous effort to criminalize conduct protected by the First Amendment. That argument gets fervent support from people who may not share the Aipac officials' conservative views on foreign policy. . . .

"Leaving aside the idea that this might chill exchanges with the press, this is a guaranteed formula for selective prosecution," Mr. Raven-Hansen said. In other words, he said, so many people have conversations involving borderline-classified information that the government will not be able to prosecute them all and will have to pick and choose, raising a fundamental fairness question.

This article from this morning’s Washington Post reports on related efforts by the Bush Administration to investigate and intimidate journalists:

Some media watchers, lawyers and editors say that, taken together, the incidents represent perhaps the most extensive and overt campaign against leaks in a generation, and that they have worsened the already-tense relationship between mainstream news organizations and the White House.

"There's a tone of gleeful relish in the way they talk about dragging reporters before grand juries, their appetite for withholding information, and the hints that reporters who look too hard into the public's business risk being branded traitors," said New York Times Executive Editor Bill Keller, in a statement responding to questions from The Washington Post. "I don't know how far action will follow rhetoric, but some days it sounds like the administration is declaring war at home on the values it professes to be promoting abroad."

We somehow managed to get through the 20th Century, win two world wars, and vanquish the Soviet empire without imprisoning journalists who inform Americans of the actions of their government which the government wants to keep secret. But along with the rule of law, due process, and so many other defining American principles, a free press is being thrown overboard in the name of the Administration's claimed inability to fight "The Terrorists" within the system of government we have had for more than 200 years.

So many of the principles to which our country has, by consensus, adhered for decades, through Republican and Democratic Administrations, are being attacked and destroyed by this Administration. This process is inexorably changing the kind of country we are and the system of government under which we live. That is the very definition of "radical," and that term applies to this Administration as much as it applies to anything.

Many people criticize the American media, and rightfully so. But the media still plays an irreplaceably crucial role in our country -- to serve as a watchdog over the government and to discover and expose government wrongdoing, including -- especially -- wrongdoing which the government is attempting to keep concealed. The only reason we have an NSA scandal, or know about so many of the other abuses of this Administration, is because someone in the press discovered and then reported it. As corrupted, lazy, confused, coddled, dysfunctional, and manipulated as our national media is -- and they are all of those things, in spades -- we still need them to perform their functions free of limitations and intimidation from the Government.

There is a reason this Administration is engaged in these efforts to restrict press freedom. Thomas Jefferson told us the reason long ago:

"Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions."

As much as we may wish it weren't so, a free press is still the primary instrument by which citizens hold their government accountable. The Administration realizes this, too. And that's precisely why they are engaged in an all-out, truly unprecedented assault on press freedoms.

UPDATE: To get a flavor of how truly authoritarian and un-American many Bush followers are, one should review, if one can stomach it, this post from Scott "Big Trunk" Johnson at Powerline, in which he laments the fact that the Bush Administration isn't being much more aggressive in its efforts to imprison journalists:

One of the deepest secrets in the exposure of the National Security Agency surveillance of al Qaeda-related conversations by the New York Times is that the publication of the story is itself a crime. Publication of the story violates, for example, one highly specific provision (18 U.S.C. section 798) of the Espionage Act that prohibits the disclosure of communications intelligence. Violation of the statute is a felony punishable by imprisonment up to ten years.

The "nearly a dozen" current and former government officials who leaked information regarding the NSA surveillance program to the Times violated the statute. So did the Times itself. Yet the Times has barely mentioned its own legal jeopardy in its continued reporting and commenatary (sic) on the story.

The Bush administration of course asked the Times not to disclose the existence of the surveillance program, but the Times proceeded to publish the story when it satisfied itself that it "could write about this program -- withholding a number of technical details -- in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record."

This is an excellent, and very American, point which Big Trunk makes. Those criminals at The New York Times were clearly instructed by Our Leader not to publish the story of The Leader's violations of the law, but the journalists only obeyed the Order for a year until The Leader was re-elected. After that, they defied the Leader's Order and published this story -- a story which exposed government actions which people across the ideological spectrum, and a majority of Americans, believe is illegal. Off to the federal penitentiary they go! Everyone knows that it's improper in the United States for journalists to report on actions by the President which are highly controversial and which violate the law.

The real problem, of course, isn't that the Administration is threatening investigative journalists with prison. It's that they haven't locked them up fast enough:

The problem with the pending investigation of the NSA leaks is that the administration appears only to be talking about enforcement of the rule of law insofar as the New York Times is concerned. The Post reports that not a single reporter or editor has been interviewed in connection with the pending investigations.

So, to recap: We have to become a country where we imprison journalists who expose actions by our political officials which the politicians want to keep secret. If we don't, we may lose our freedoms. And we can't have that.

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