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.

Thursday, February 23, 2006

Bush followers masquerade as free press advocates while attacking freedom of the press

On the list of threats to our constitutional liberties, the fact that we have a President who has literally seized the power to violate our laws is at the top. But immediately underneath it on the list, in my view, is the concerted and escalating attacks launched by the Bush Administration and its followers on the press’ ability to report on the Administration's conduct. That is why it is so astounding and so grating to see William Bennett parading around as a brave crusader for a free press in his Washington Post Op-Ed today, where he (futilely) drags along Alan Dershowitz with him for cover and credibility.

According to the Op-Ed, "the press has betrayed not only its duties but its responsibilities" by not publishing the Mohammed cartoons. We are then subjected to one of the most nakedly hypocritical statements one will ever encounter:

[O]ur general agreement and understanding of the First Amendment and a free press is informed by the fact -- not opinion but fact -- that without broad freedom, without responsibility for the right to know carried out by courageous writers, editors, political cartoonists and publishers, our democracy would be weaker, if not nonexistent. There should be no group or mob veto of a story that is in the public interest.

As I’ve said before, I believe the press ought to publish those cartoons as a means of defending their right to publish ideas free of intimidation and attack. But the very last people from whom we ought to be hearing sermons about the importance of free expression and a free press -- and about the accompanying duty of the press to publish even those ideas which provoke controversy, outrage and offense -- are Bush supporters, who are plainly engaged in a serious crusade to punish any journalists who express ideas which they dislike or which they believe produce undesirable consequences.

And of all the free-press-attacking Bush supporters, the very last one who has any basis for masquerading as a free press advocate is Bill Bennett, who has built a bloated career over several decades waging war on free expression and a free press, while attempting to compel suppression of ideas he finds offensive. Let us count the ways a free press is under vicious attack by the very people lecturing us about the grave threat to freedom posed by the Mohammed cartoon episode.

As I’ve written about before, the Bush Justice Department is now aggressively pursuing a criminal investigation into disclosure by The New York Times of the Administration’s decision to violate the law when eavesdropping on Americans. The DoJ’s investigation is targeted not only at the individuals in government who disclosed these violations but also at the Times itself, along with the individual journalists responsible for the disclosure, including reporter James Risen and NYT editor Bill Keller. Put simply, the Administration is threatening American journalists with imprisonment for doing exactly what the First Amendment is designed to ensure they can do – namely, report on controversial and legally dubious government actions against American citizens which the government attempts to conceal.

As a result, the demand by Bush followers for the criminal prosecution of The New York Times and the individual editors and reporters responsible for that story has now reached the level of "conservative" conventional wisdom. The influential neoconservative magazine Commentary this month published a long piece calling for criminal prosecution of the Times, Risen and Keller under the Espionage Act of 1917.

Following along, Scott "Big Trunk" Johnson of Powerline wrote an article in the Weekly Standard which he described this way:

The Weekly Standard has posted my column on the laws that govern the disclosure of the NSA program by the New York Times: "Exposure." I argue that the New York Times should be at considerable risk of criminal prosecution under the espionage laws for its disclosure of the NSA surveillance program. Moreover, the individuals at the Times responsible for its conduct in this matter -- James Risen, Bill Keller, Arthur Sulzberger, Jr. and others -- are in plain view. No extensive investigation is necessary to identify them.

Others who are parading around in disguise as free press advocates when calling for the publication of offensive cartoons they like, such as Michelle Malkin, The American Spectator, and others, have favorably cited the Commentary piece and/or joined in these calls for the imprisonment of the NYT journalists. Such principled crusaders for a free press they are.

It is critical to note that these increasingly strident calls for the criminal prosecution of journalists who published one of the most politically damaging stories of George Bush’s presidency are being issued in concert with a concerted effort by the Bush Administration to shape the criminal law so as to enable the criminal prosecution generally of journalists who inform the public of activities which the Administration wants to conceal.

As Fred Kaplan recently described in his vitally important article in Slate, the Justice Department is relying upon a novel and radical theory of the Espionage Act in the Larry Franklin/AIPAC spying case to prosecute not only the government employee (Franklin) who passed classified information to pro-Israeli lobbying groups, but also the private individuals who received that classified information. In other words, the Bush Administration is seeking to criminalize the very act which defines what an investigative journalist does and has always done in America:

An espionage trial about to begin in Alexandria, Va., could threaten the whole enterprise of investigative journalism. . . .

They [the private citizens who received the information are] charged with giving classified information not to foreign governments or spies but rather "to persons not entitled to receive it."

This is what journalists do routinely every day. . . . Still, if some attorney general were to view this case as a precedent, he could go after whole newsrooms on the grounds that the reporters and editors had "reason to believe" the information might be used to harm the United States or to help another country.

As Walter Pincus reported in The Washington Post (h/t Kevin Drum), the DoJ has constructed its case against these private citizens with the clear intent of laying the legal groundwork for being able to criminally prosecute any journalists who receive classified information – an attack on the very heart and soul of what our free press does in fulfilling its watchdog function over the Government:

A lawyer familiar with the AIPAC case said administration officials "want this case as a precedent so they can have it in their arsenal" and added: "This as a weapon that can be turned against the media."

So while Bush followers warn that a free press is threatened because some newspapers decide not to publish cartoons that are offensive to Muslims, the Bush Administration is threatening journalists in this country with imprisonment for publishing politically embarrassing stories, and is implementing legal theories to enable it to criminally prosecute American journalists who receive any information which the Government deems "classified." It is genuinely hard to imagine a more fundamental threat to a free and vibrant press than this.

Time and again, Bush supporters -- who masquerade as free press advocates when it comes to offensive or provocative ideas with which they agree -- have viciously attacked the press and accused them of engaging in subversive and even treasonous activities for a whole host of reasons -- from publishing Abu Ghraib photographs to reporting on torture and abusive treatment of Muslims at Guantanamo to warning about the escalating violence and the ever-deteriorating situation in Iraq. We are told that the press ought to refrain from publishing even true reports and images reflecting U.S. misconduct -- and is even guilty of subversion and treason when they do so -- because publication makes the U.S. look bad in the eyes of the world or undermines our "war effort."

Here is neoconservative commentator and Bush lover extraordinnaire Dennis Prager explaining why publication of the Abu Grahib photos is subversive and wrong:

The second example [of the "Left hurting America"] was a federal judge appointed by former President Bill Clinton ordering the Defense Department to release all remaining photos of prisoner abuse by Americans at Abu Ghraib prison. Though it is certain that the only effect of the photos will be to further endanger Americans at home and abroad and increase the danger to American troops in Afghanistan and Iraq, and though there is absolutely no need for the public to see these photos, the judge ordered their release.

So, to recap so far: publishing stories which inflame Muslims by reporting on American abuses at Guantanamo is wrong and subversive and ought be suppressed. Anyone who states that Iraq is disintegrating and our war effort is failing is harming the troops and is a traitor who ought to be treated as such. Images which depict grotesque acts by the U.S. military are dangerous and their publication is treasonous. But when it comes to anti-Muslim cartoons which are at least as provocative and inflammatory, consequences be damned; lofty principles of a free press demand that they be published and published widely regardless of the reactions.

These demands by Bush followers that ideas be freely expressed without restraint are extremely selective – they want the ideas they like to be disseminated widely and aggressively but ideas which they dislike to be suppressed. In general, when one espouses standards and principles which one applies only selectively and in a self-interested manner, the result is just garden-variety hypocrisy. But when principles of a free press are applied selectively -- such that one urges some ideas to be vigorously safeguarded while other ideas be aggressively suppressed -- it is not merely hypocritical, but incomparably pernicious, because what is really being sought, by definition, is a system of laws and rules which exist to propagandize.

That is exactly the project which Bush followers (spearheaded by their neoconservative chapter) are relentlessly pursuing with their simultaneous attacks on the press (when it comes to ideas which undermine their agenda) and cynical defense of unrestrained expression (when it comes to ideas which promote that agenda). But a press which exists to disseminate anti-Muslim ideas but which must refrain from publishing ideas that reflect poorly on the U.S. or the Administration is not a free press. That is a Pravda-like propaganda arm of the state which exists to glorify the government and promote its aims. That is plainly what these Bush followers are trying to institute.

It is worth remembering that Bush followers have a long and clear history of advocating suppression of ideas which they dislike. Here is Jonah Goldberg -- in an article entitled: "Censorship. Just do it." -- reminding us of the belief in the suppression of ideas which lies at the heart of the Bush movement, including by newfound free expression advocate Bill Bennett:

You don't have to dust off your books by William Bennett and George Will to understand that it is an indisputable fact that the Founding Fathers believed the good character of the citizenry was essential to a healthy republic. And, they believed, laws crafted at the local level — including censorship — could and should be aimed at maintaining good character.

And here is Bill Bennett himself, in the wake of the controversy surrounding Janet Jackson’s breast, advocating government penalties against Howard Stern for expressing bad, inappropriate thoughts and urging increased penalties from the Government for those who express ideas which Bennett thinks are offensive and wrong:

Yes, there are government instituted fines for indecency—and they likely influence private decisions. But that is to the good, just as there are fines for other kinds of public polluting—the effect of which does encourage private corporations and individuals to act more responsibility; to not trash the streets, the air, or the culture. Indecency fines are effective to be sure, and they probably should be increased.

In the same essay, Bennett explains that "censorship" only exists when the government bars the expression of ideas, not when private media entities cave into pressure and refuse to publish them on their own. Back then -- when it came to the suppression of ideas that he disliked -- Bennett insisted that there was nothing disturbing at all about private media entities refusing to publish provocative or offensive ideas in response to public outrage -- the very opposite of the argument he advanced this morning in the Post. In fact, for years Bennett has been working to pressure media entities -- including with threats of legislation and fines -- to refrain from publishing ideas Bennett finds offensive.

Attacks on the expression of controversial and provocative ideas is a core principle of this strain of self-identified "conservatives." A pro-censorship cover story by David Lowenthal was published in The Weekly Standard which was entitled "The Case for Censorship" (a chapter in Robert Bork's best-selling book bore the same name and expressed the same pro-censorship views). Bennett himself praised Lowenthal's pro-censorship article by writing: "I agree with much in professor Lowenthal's article," but concluded that censorship would be difficult to implement because of the public opposition it would provoke.

What is going on here could not be clearer. A free press is one of the few remaining checks on our government. People like Bennett want to compel the press to publish ideas which they like by disguising their demands under a banner of a principled belief in a free press – a belief which immediately disappears when the press publishes ideas that they dislike or which are politically damaging to the President, in which case the press should be attacked as subversive and treasonous and even be criminally prosecuted by the Bush Administration.

While Bennett decries the unwillingness of the media to stand up to Muslim mobs, the press has been deafeningly silent about the Justice Department's threats of criminal prosecution against the NYT and the Administration's legal maneuverings to enable further attacks of criminal prosecution on investigative journalism generally. Genuine advocates of a free press would be highly alarmed, and outraged, not only by the self-censorship of newspapers with regard to these cartoons, but also by the concerted efforts within our country, from the Bush Administration, to intimidate and suppress anti-government journalism.

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