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.

Monday, May 22, 2006

Imprisoning journalists

Other than the fact that the President believes that he has the power to break the law and has been continuously exercising that power, the issue about which I've written most on this blog is the sweeping and dangerous attacks by this administration on investigative journalism. Those two issues are quite related, as the latter is intended to conceal and thus enable the former.

The administration's assault on a free and vital press took a huge leap forward this weekend, when Attorney General Alberto Gonazles announced on national television that the Bush administration has the power to imprison journalists who publish stories revealing conduct by the President which the administration wants to conceal (such as the warrantless NSA eavesdropping program, which he specifically cited). Gonazles went further and made clear that the administration is actively considering prosecution against journalists who publish such stories. The video is here.

It really is hard to imagine any measures which pose a greater and more direct danger to our freedoms than the issuance of threats like this by the administration against the press. If the President has the power to keep secret any information he wants simply by classifying it -- including information regarding illegal or otherwise improper actions he has taken -- then the President, by definition, has complete control over the flow of information which Americans receive about their Government.

An aggressive and adversarial press in our country was intended by the founders to be one of the most critical checks on abuses of presidential power, every bit as much as Congress and the courts were created as checks. Jefferson said: "If I had to choose between government without newspapers, and newspapers without government, I wouldn't hesitate to choose the latter." The only reason the Founders bothered to guarantee a free press in First Amendment is because the press was intended to serve as a check against Government power.

And the only reason, in turn, that the press is a check against the Government is because it searches for and then discloses information which the Government wants to keep secret. That is what investigative journalism, by definition, does. The Government always wants to conceal its wrongdoing from the public, and the principal safeguard in this country against that behavior is an adversarial press, which is devoted to uncovering such conduct and disclosing it to the country.

Virtually every issue of political controversy during the Bush administration has been the result of the disclosure to a journalist by a concerned Government source that the administration is engaging in illegal, improper and/or highly controversial conduct. Whatever criticisms one wants to make of the American press -- and such criticisms are numerous -- it is still the case that what we do know about this Administration's conduct is the result of the press. Literally, if George Bush had his way -- if government sources were sufficiently intimidated out of disclosing classified information and journalists were sufficiently intimidated out of writing about it -- we would not know about any of these matters:

* Abu Ghraib

* The Bybee Torture Memorandum

* The use of torture as an interrogation tool

* The illegal eavesdropping on Americans without warrants

* The creation of secret gulags in Eastern Europe

* The existence of abundant pre-war information undermining and even negating the administration's WMD claims

* Policies of rendering prisoners to the worst human rights-abusing countries

Our Government would be engaging in all of this conduct, and worse. But we would not know about any of it. We would just be going merrily along our way, completely ignorant of the fact that the Bush administration has undertaken the most unimaginably radical and disturbing conduct in the name of the United States. We would all be Hugh Hewitt and John Hinderaker -- incapable of doing anything other than obediently praising the Commander-in-Chief and reciting the view of the world which the administration wants us to have because we would not know any better.

If this world were implemented, the only information about the Government which we would have is the information which the Bush administration wants us to have -- i.e., information which reflects well on it and which enhances the Glory of the president. Any information which reflects poorly on the president or which reveals any of his controversial and improper behavior would be concealed.

The only "leaked" information which we would ever hear is information which bolsters the administration's views (such as pre-war claims by Ahmed Chalabi about the existence of Iraqi chemical weapons) or which depicts the President as Our Hero and Protector (like the time he saved the “Liberty Tower” from destruction, or the way he ordered an innovative high-tech scheme to detect unusual levels of radiation in our neighborhood mosques). But leaks which the administration doesn't want us to know because they politically harm the president would never happen because those who are privy to such information (government employees and journalists alike) would be too fearful of criminal prosecution to inform us about it.

That is what this is all about. There is not a single instance -- not one -- which reflects any harm to our national security as a result of any of these disclosures. The press goes out of its way to avoid disclosing information which could harm national security -- the Times concealed all operational details of the NSA program when it disclosed that the President was eavesdropping without warrants and the Post concealed the location of the secret gulags in Eastern Europe when reporting that they existed. These disclosures trigger public debate over highly controversial matters and, as a result, often harm the President politically. But none of them is an example of gratuitous disclosure of secret information intended to harm national security.

That is how our country has operated for at least the last century, through two world wars and scores of other military conflicts. The press reports classified information to the extent that doing so brings to the public's attention legitimate matters of political debate, and it exercises self-restraint by concealing information which could harm national security and which is unnecessary for the debate to be had. And unlike many other countries whom we have never (until now) aspired to copy, we do not threaten journalists with prison or prosecute them for publishing such stories, precisely because that conduct is a critical and necessary component of the checks and balances which preserve liberty in our country.

It ought to go without saying that the press cannot serve as a check against the Executive branch if the only information it publishes is information which the President wants it to publish. Then the press becomes Pravda, existing solely to pass along information to citizens which the Government wants it to convey. That's the world where the administration wants Americans to believe that we have to wage war against Iraq to rid it of its WMDs, and so selectively “leaks” to Judith Miller the information which bolsters that claim while concealing the information which undermines it. And the Government's claims then are printed on the front page of The New York Times under the guise of independent reporting, without any contrary information being disclosed.

When the Government can control which information is disclosed and which information is concealed, newspapers become a government propaganda venue -- an arm of the Government -- rather than any meaningful check on it. I've cited this Jefferson warning several times before, and included it in my book, because it is so prescient and so self-evidently applicable to the Bush administration:

"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."

There simply is no American president, at least in the last century, who has waged war against a free press the way George Bush has. Not even close. Not even Richard Nixon, who hated the press with a consuming passion, tried to imprison journalists. And there is a reason why the Bush administration has as its highest priority these attacks on the press. And Jefferson told us the reason why: because the press is the "first shut up by those who fear the investigation of their actions."

Even during World War I, the Congress refused to include in the Espionage Act of 1917 a provision which Woodrow Wilson wanted to allow criminal prosecution against any journalists who -- in a time of war -- disclosed information which the President deemed to be "of such character that it is or might be useful to the enemy." (h/t Cynic Librarian). The debate regarding that amendment makes abundantly clear that it was rejected because the grave dangers from stifling an aggressive and free press -- even during war -- far outweigh the “benefits” of eliminating one of the sole checks on the Government's ability to control the flow of information.

Why were we able to defend our national security throughout the 20th Century without imprisoning journalists? Why have we suddenly reached a point where our Government is too weak to defend our country without trying to stifle a free press by threatening journalists with imprisonment? Why can't George Bush defend the country without destroying almost every traditional institution and practice in our country to which presidential administrations of both parties have, for decades if not longer, managed to adhere?

A prohibition on imprisoning journalists for fulfilling the function which the Founders intended is just another defining tradition and principle of our country which the Bush administration is attempting to dismantle. Whether they actually prosecute journalists or not, the threat to do so -- combined with the knowledge that they possess the means to investigate their telephone calls -- by itself has a highly damaging deterrent effect on vigorous investigative journalism. This administration is obsessed with eliminating the few remaining checks on their ability to operate in secret, and there is nothing which can advance that goal more than official threats of imprisonment of journalists -- which, as amazing as it is, is exactly what happened this weekend.

UPDATE: One of the most striking aspects of these escalating attacks on the press is just how silent the major media outlets are about any of this. The Attorney General threatened journalists with prison this weekend on national television. Shouldn't the Times and the Post be editorializing against those threats, at the very least? And yet, from what I've seen today, no newspaper has published an editorial response to the administration. Just silence.

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