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.

Saturday, May 27, 2006

People who don't understand how America works

The United States Congress openly debated yesterday whether the federal government should begin imprisoning journalists who publish stories containing information which the Bush administration wants to conceal. At a House Intelligence Committee hearing, several Republicans expressly urged that our country start throwing reporters in jail:

The criticism focused on articles in The New York Times concerning a National Security Agency surveillance program and, to a lesser extent, on disclosures in The Washington Post about secret C.I.A. prisons overseas.

Some Republicans on the committee advocated the criminal prosecution of The Times. Their comments partly echoed and partly amplified recent statements by
Attorney General Alberto R. Gonzales that the Justice Department had the authority to prosecute reporters for publishing classified information. . . .

"I believe the attorney general and the president should use all of the power of existing law to bring criminal charges," said Representative Rick Renzi, Republican of Arizona.

Several members of the Committee pointed out that the U.S. is not a country which imprisons journalists for stories which they publish about controversial government actions:

Democratic members of the committee, while praising the role of the press in informing citizens, responded only indirectly to the comments concerning The Times. Representative Jane Harman, Democrat of California, said she was disturbed by Mr. Gonzales's statements.

"If anyone here wants to imprison journalists," Ms. Harman said, "I invite them to spend some time in China, Cuba or North Korea and see whether they feel safer."

This was the same Jane Harman who went on Meet the Press on February 12 and strongly implied that she favored prosecution of the Times for informing Americans about the warrantless eavesdropping program, leading many Bush followers to celebrate the fact that the ranking Democrat on the Committee made clear that she advocated prosecution of the Times. But perhaps between then and now, someone explained to Harman that while there are countries that imprison journalists for stories they write about the Government (Harman's examples of China, Cuba and North Korea are good ones), America isn't one of them.

National Review Contributing Editor Jonathan Adler this week wrote a very thorough article in NR explaining what ought not need explanation -- that these increasingly strident calls among "conservatives" to put journalists in jail are squarely contrary to the most fundamental American political values and traditions (emphasis in original):

Such a prosecution would be unprecedented, as the federal government has never criminally prosecuted a journalist for publishing classified information.

We do not mean to minimize the negative diplomatic fallout that Priest’s reporting [about the CIA's "black prisons"] might have caused. It is certainly possible that her stories made it more difficult for the United States to obtain the cooperation of foreign governments in the war on terror. Yet if this is the sort of injury that can trigger liability under the Espionage Act, then many reporters who have disclosed embarrassing, classified information are equally guilty. Just consider all of Bill Gertz’s stories in the Washington Times about the Clinton administration’s national-defense and diplomatic missteps. Were these stories criminal? . . . .

The Founding Fathers understood that a free and independent press is critical to self-governance and to the constitutional order they established. The Constitution states that Congress “shall make no law” abridging the freedom of the press. This mandate is clear and unmistakable. The press should be free to publish news reports without fear that Congress will criminalize those publications.

As one can say for so many core American political principles, the U.S. Government under 42 different Presidents has thrived and defended the nation for 220 years without the need to imprison journalists for the stories they publish, but the Bush administration is the first to claim that it has to dismantle these liberties because it is too weak -- and America is too weak -- to maintain national security unless we radically change the kind of country we are.

And, quite relatedly, we come to this story which claims, based exclusively on anonymous federal law enforcement sources: "Federal investigators say they have evidence that former Chicago street gang member Jose Padilla was a higher ranking member of Al Qaeda than first thought." The entire article is based on the anonymous claims of "federal authorities" -- i.e., those trying to imprison Padilla for life (and just incidentally, why would a newspaper grant anonymity to federal prosecutors to make allegations against a criminal defendant, all in order to publish a one-sided story?).

Among the crowd which has long been ready to string up U.S. citizen Jose Padilla without bothering to even charge him with a crime (literally based exclusively on the President's decree that he is A Terrorist), this story has created a lynching frenzy, somehow increasing the urgency to leave him in a black hole with no due process. Here is what Jeff Goldstein, one of the most intense enemies of American values, oozed out upon reading this story (emphasis added):

Wow. Just, . . .

Which, Christ, when I think how many earnest people, in advance of having all of the information, agitated on behalf of this guy’s “civil liberties”—civil liberties he had every intention of using to help wage war against the US (which is why we need to have a serious debate on both how it is best, legally, to handle home grown combatants, and how to use the military tribunal process)—I get that same foul taste in my mouth I used to get whenever I’d hear Wesley Clark talk about, well, everything, now that I think about it.

All the Government has to do is utter the words "Al Qaeda" and it's enough, literally, to cause some people to start swooning with glee and open-mouthed wonderment. Needless to say, multiple America-hating commenters at Jeff's blog expressed outrage that the U.S. Government finally charged Padilla with crimes after holding him for 3 1/2 years in solitary confinement based solely on the President's unreviewed accusations.

That's how this group of Bush followers thinks America is supposed to work. If you are a U.S. citizen, the President can unilaterally order you abducted and imprisoned; does not have to charge you with any crime; can block you from speaking with anyone, including a lawyer; can keep you incarcerated indefinitely (meaning forever); and can deny you the right to any judicial review of your imprisonment or any mechanism for challenging the accuracy of the accusations. And oh - while it would be nice if we could preserve all of that abstract lawyer nonsense about the right to a jury trial and all that, we're really scared that Al Qaeda is going to kill us, so we can't.

Here is what Antonin Scalia said in Hamdi v. Rumsfeld in explaining why the Constitution bars the Government from imprisoning U.S. citizens without a trial:

The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive. . . .

The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property.

When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial. See, e.g., 2 & 3 Phil. & M., c. 10 (1555); 3 J. Story, Commentaries on the Constitution of the United States §1783, p. 661 (1833) (hereinafter Story) (equating “due process of law” with “due presentment or indictment, and being brought in to answer thereto by due process of the common law”). The Due Process Clause “in effect affirms the right of trial according to the process and proceedings of the common law.” Ibid. See also T. Cooley, General Principles of Constitutional Law 224 (1880) (“When life and liberty are in question, there must in every instance be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a conviction and judgment before the punishment can be inflicted” (internal quotation marks omitted)).

As Scalia makes so clear -- but shouldn't need to -- if there is any defining American principle, it is that the President can't throw U.S. citizens in jail without charges and a trial. Since the 13th Century Magna Carta, not even the British King could do that. But there are virtually no American political principles left which are not being called into question, if not overtly attacked, by Bush followers. Prohibitions on torture, the right to a jury trial, the obligation of the President to obey the law, the right of the press to publish stories without criminal prosecution -- all of the values which have distinguished this country and defined who we are as a nation for the last two centuries are all being debated and assaulted.

What do you do with people who never learned that American citizens can't be imprisoned by Executive decree and without a trial, or that American journalists aren't imprisoned for stories they write about the Government's conduct? People like this plainly do not embrace, or comprehend, even the most basic principles of what America is.

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