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.

Tuesday, December 20, 2005

White House efforts to intimidate and threaten the press

Unless the media finally does its job of aggressively making the public aware of what is really going on with this lawless surveillance scandal -- of how patently dishonest the Administration is being in its explanations -- this scandal will die a quick and inconsequential death, drained of life by the now routine appeals to national security, scare-mongering over Al Qaeda, and the deliberate clouding of extremely clear issues with twisted legalisms. The Administration’s facially false defenses are designed to make people become bored, confused, and of the belief that this is just another partisan lawyer fight in Washington which they can’t decipher and don’t really need to try.

One can’t blame them for adopting this tactic because it has worked so well for them so many times. And there is one principal reason why it has worked – because our passive, frightened, corrupted media has allowed it to work.

All of the protests and shrieking and Congressional investigations over this scandal will be for naught if the media continues to be plagued by the disease of passively conveying Government lies under the guise of journalistic balance. The media is intended to be an adversary to the Government. Its function is to express scepticism over Government claims and to expose dishonesty and corruption among our nation’s highest officials. Only the media can do this, and if it shies away from this function, our system of Government simply will no longer work.

The dangers arising from media abdication of its duties are particularly acute where, as here, one party controls all three branches of the Federal Government and there are no other options for an adversarial force to serve as a counterweight to the Government. The reason that George Bush is so cavalier about spewing nonsensical rationales to justify his lawless conduct is because the media has decided that its role is to uncritically and "objectively" convey -- rather than scrutinize and investigate -- the Government’s positions. But providing a forum for Governmental statements was never the intended role of the media. Instead, it was to serve as an opposition force to the Government. As long-time Miami Herald columnist Leonard Pitts recently noted:

As Thomas Jefferson put it: "I should not hesitate for a moment to prefer the latter." Jefferson knew that a free and adversarial press was the people's best defense against the excesses of their government and a fundamental building block of healthy democracy.

The prospect of having to rely on the media to stand up to the Bush Administration’s lawlessness when it has failed so miserably and for so long to fulfill its central function is not encouraging, to put it mildly. But there is no other choice. And the Administration realizes this – that if it can keep the media in check, it can operate free of constraints and can literally do whatever it wants. Again, according to Jefferson:

"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."

Can there be any doubt that the Administration is engaged in a blatant intimidation campaign against anyone who stands up to it and exposes its wrongdoing? The President and his aides have taken every occasion to attack and threaten those responsible for exposure of this lawless behavior, and the media is quite aware of these threats. Yesterday, in his Press Conference, Bush basically accused whoever finally spoke out about this lawless surveillance on American citizens of committing treason:

There is a process that goes on inside the Justice Department about leaks, and I presume that process is moving forward. My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy. . . .

You've got to understand -- and I hope the American people understand -- there is still an enemy that would like to strike the United States of America, and they're very dangerous. And the discussion about how we try to find them will enable them to adjust. . . . But it is a shameful act by somebody who has got secrets of the United States government and feels like they need to disclose them publicly.

As a result, one can almost hear the fear of the defensive New York Times reporters as they describe these White House threats:

Mr. Bush strongly hinted that the government was beginning a leak investigation into how the existence of the program was disclosed. It was first revealed in an article published on The New York Times Web site on Thursday night, though some information that administration officials argued could be useful to terrorists had been omitted.

And surely the media is well aware of the accusations by Bush's closest political allies that the Times aided terrorists against the U.S. by disclosing the Administration's illegal eavesdropping, nicely supplemented by calls from Bush's supporters to hunt down those responsible for these disclosures and prosecute them as traitors.

Threats against the media of this sort are really threats on every American citizen, on every liberty that we have, beginning with the right to know what our Government is doing, to hear unfettered criticism of it, and to have its corruption brought to light. This is thuggish behavior of the worst and most transparent sort – designed to stifle dissent and to punish those who expose corruption and illegality on the part of the Administration.

And the threats have worked. The Times was aware of the Administration’s behavior for a full year but kept its mouth shut because the Administration told it to, despite there being no conceivable harm to national security from its disclosure. We learned yesterday that when the President learned that the Times was finally going to share its discovery with the public, the President "summoned" the Publisher and Editor of the paper to the Oval Office to insist that they not do so -- something which the Times was too afraid to tell us about, and so we had to learn about it from Newsweek instead.

And there is still substantial information about this surveillance which has not been disclosed. Who has been eavesdropped on? How many American citizens were subjected to this surveillance without a warrant? Who decided which Americans would be eavesdropped on and what standards were used to make that determination? And what is the real reason the Administration decided that it could not engage in this surveillance within the incredibly flexible and permissive parameters of FISA?

The only real question is whether the media and Americans generally are going to continue to stand by, passively and afraid, and blindly trust the Administration’s assurances that it is breaking the law for our own good. The most significant and revealing statement from President Bush’s Press Conference yesterday was the one he snidely issued in response to the question of why he saw a need to operate outside of FISA when eavesdropping on American citizens. He refused to answer the question and said this:

And without revealing the operating details of our program, I just want to assure the American people that, one, I've got the authority to do this; two, it is a necessary part of my job to protect you; and, three, we're guarding your civil liberties. And we're guarding the civil liberties by monitoring the program on a regular basis, by having the folks at NSA, the legal team, as well
as the inspector general, monitor the program, and we're briefing Congress.

This is a part of our effort to protect the American people. The American people expect us to protect them and protect their civil liberties. I'm going to do that. That's my job, and I'm going to continue doing my job.

The President is telling us that we should not question what he is doing because he has assured us that he is not doing anything wrong and that is all we need to know. These assurances do indeed lead many of his followers to insist that this is proof that he is acting properly. But this is the assurance of a Big Brother that he knows what is best for us, not a substantive response of an elected official who seems himself as accountable to anyone. It is also a warning that we must not question him, but simply trust him, as he secretly goes about breaking the law while he assures us that there is nothing to worry about.

This illegal eavesdropping is not, of course, an isolated incident. It is but a small manifestation of the Administration’s broader view that the President has the power -- by virtue of this indefinite, undeclared, increasingly vague "war" – to unilaterally determine what the Government can and should do without any checks or balances at all. That is the definition of tyranny, and that is what this Administration is expressly trying to achieve.

Each time the Administration gets away with acquiring power of this sort, they become more emboldened in this project and then further escalate their assault on the notion of an Executive constrained by the rule of law. This time, the President has been caught red-handed, with his hand in the jar of unchecked Executive power, and he has boldly decided that he will simply admit what he has done and dare anyone to do anything about it.

He gave a speech in which he proudly declared what he did and defiantly vowed to continue, and yesterday, he could not have been any more jocular or patronizing with the media as they questioned him about these matters. One can’t really blame him for taking that carefree attitude, given that the only force capable of stopping him – our nation’s media – has never done a single thing during his entire Administration to indicate that they can or will do anything meaningful at all.

But if they don’t -- if the media does not radically and rapidly change the way it operates and how it sees its function as a result of this scandal -- it is not hyperbole to say that many of the most basic and long-standing principles of our republic will be undermined, perhaps irrevocably. The Administration is now alternatively rubbing the media’s face in this scandal and threatening them with criminal investigations and imprisonment if they don’t fall into line. The moment of truth for the media has arrived, and one cannot exactly be confident in the prospect that they will rise to this challenge.

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