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 12, 2006

Criminalizing exposure of government wrongdoing

This article from Editor & Publisher reports that the proposed legislation for the so-called Terrorist Surveillance Act of 2006 to be introduced by Ohio Sen. Michael DeWine -- the principal purpose of which is to legalize the Bush Administration's illegal warrantless eavesdropping on Americans -- contains unprecedented provisions which create whole new categories of crimes designed to punish any future discussion of the President's eavesdropping activities, including by reporters:

Reporters who write about government surveillance could be prosecuted under proposed legislation that would solidify the administration's eavesdropping authority, according to some legal analysts who are concerned about dramatic changes in U.S. law. . . .

The Associated Press obtained a copy of the draft of the legislation, which could be introduced as soon as next week.

The draft would add to the criminal penalties for anyone who "intentionally discloses information identifying or describing" the Bush administration's terrorist surveillance program or any other eavesdropping program conducted under a 1978 surveillance law. Under the boosted penalties, those found guilty could face fines of up to $1 million, 15 years in jail or both.

Kate Martin, director of the Center for National Security Studies, said the measure is broader than any existing laws. She said, for example, the language does not specify that the information has to be harmful to national security or classified.

"The bill would make it a crime to tell the American people that the president is breaking the law, and the bill could make it a crime for the newspapers to publish that fact," said Martin, a civil liberties advocate.

While DeWine's office denied any intention to criminalize discussions by journalists of these programs, that is clearly the effect. And the fact that they are attempting to add whole new categories of criminal conduct arising out of any discussion of the Administration's eavesdropping conduct -- even if such discussion does not entail the harmful disclosure of classified information -- demonstrates, yet again, that the primary lesson learned by the Administration from the NSA scandal is that new ways must be invented to punish those who report on the illegal conduct in which they engage.

These new provisions in the DeWine legislation are clearly part of the Administration's campaign to increase the scope of whistle-blowing and journalistic activities which are treated by the government as criminal. As part of that campaign, Pat Roberts last month announced that he would introduce legislation adding new categories of whistle-blowing activities to the criminal law and which severely increase the penalties for violations of those laws.

The Administration self-evidently intends to use the criminal law to prevent further revelations of their illegal behavior, whether the disclosures come from ordinary citizens, government whistle-blowers or investigative journalists. They want anyone who is considering disclosing government wrongdoing to fear the prospects of criminal prosecution so that they remain silent. As I've documented several times before, journalists are the primary target of this intimidation campaign, but it extends far beyond them as well.

One no longer is surprised when the media ignores or fails to understand severe crises in our government, but one would expect that if they take a stand against anything, it would be crusades of this sort to intimidate and silence the adversarial press. So far, at least, their silence is deafening.

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