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, June 27, 2006

The Bush lynch mob against the nation's free press

(updated below)

Any doubts about whether the Bush administration intends to imprison unfriendly journalists (defined as "journalists who fail to obey the Bush administration's orders about what to publish") were completely dispelled this weekend. As I have noted many times before, one of the most significant dangers our country faces is the all-out war now being waged on our nation's media -- and thereby on the First Amendment's guarantee of a free press -- by the Bush administration and its supporters, who are furious that the media continues to expose controversial government policies and thereby subject them to democratic debate. After the unlimited outpouring of venomous attacks on the Times this weekend, I believe these attacks on our free press have become the country's most pressing political issue.

Documenting the violent rhetoric and truly extremist calls for imprisonment against the Times is unnecessary for anyone paying even minimal attention the last few days. On every cable news show, pundits and even journalists talked openly about whether the editors and reporters of the Times were traitors deserving criminal punishment. The Weekly Standard, always a bellwether of Bush administration thinking, is now actively crusading for criminal prosecution against the Times. And dark insinuations that the Times ought to be physically attacked are no longer the exclusive province of best-selling right-wing author Ann Coulter, but -- as Hume's Ghost recently documented -- are now commonly expressed sentiments among all sorts of "mainstream" Bush supporters. Bush supporters are now engaged in all-out, unlimited warfare against journalists who are hostile to the administration and who fail to adhere to the orders of the Commander-in-Chief about what to print.

The clear rationale underlying the arguments of Bush supporters needs to be highlighted. They believe that the Bush administration ought to be allowed to act in complete secrecy, with no oversight of any kind. George Bush is Good and the administration wants nothing other than to stop The Terrorists from killing us. There is no need for oversight over what they are doing because we can trust our political officials to do good on their own. We don't need any courts or any Congress or any media serving as a "watchdog" over the Bush administration. There is no reason to distrust what they do. We should -- and must -- let them act in total secrecy for our own good, for our protection. And anyone who prevents them from acting in total secrecy is not merely an enemy of the Bush administration, but of the United States, i.e., is a traitor.

A book could and ought to be written about the corrupt reasoning and truly unparalleled dangers characterizing this anti-media lynch mob. But for now, following are what I believe are the most noteworthy points:

(1) There is not a single sentence in the Times banking report that could even arguably "help the terrorists."

George Bush and his allies in the right-wing media (such as at National Review) have been running around for the last several years boasting about the administration's programs for tracking terrorists and innovating our surveillance methods. In doing so, they have repeatedly -- and in detail -- told the public, and therefore The Terrorists, all sorts of details about the counter-terrorism programs we have implemented, including -- from the President's mouth himself -- programs we have for monitoring international banking transactions.

Here is President Bush, campaigning for re-election in Hershey, Pennsylvania on April 19, 2004, boasting about our vigilant efforts to monitor the terrorists' banking transactions:

Before September the 11th, law enforcement could more easily obtain business and financial records of white-collar criminals than of suspected terrorists. See, part of the way to make sure that we catch terrorists is we chase money trails. And yet it was easier to chase a money trail with a white-collar criminal than it was a terrorist. The Patriot Act ended this double standard and it made it easier for investigators to catch suspected terrorists by following paper trails here in America.

And as former State Department official Victor Comraes detailed (and documented) on the Counterterrorism blog, it has long been pubic knowledge that the U.S. Government specifically monitors terrorists' banking transactions through SWIFT:

Yesterday’s New York Times Story on US monitoring of SWIFT (Society for Worldwide Interbank Financial Telecommunication) transactions certainly hit the street with a splash. It awoke the general public to the practice. In that sense, it was truly new news.

But reports on US monitoring of SWIFT transactions have been out there for some time. The information was fairly well known by terrorism financing experts back in 2002. The UN Al Qaeda and Taliban Monitoring Group , on which I served as the terrorism financing expert, learned of the practice during the course of our monitoring inquiries.

The information was incorporated in our report to the UN Security Council in December 2002. That report is still available on the UN Website. Paragraph 31 of the report states:

"The settlement of international transactions is usually handled through correspondent banking relationships or large-value message and payment systems, such as the SWIFT, Fedwire or CHIPS systems in the United States of America. Such international clearance centres are critical to processing international banking transactions and are rich with payment information. The United States has begun to apply new monitoring techniques to spot and verify suspicious transactions. The Group recommends the adoption of similar mechanisms by other countries."

Suggestions that SWIFT and other similar transactions should be monitored by investigative agencies dealing with terrorism, money laundering and other criminal activity have been out there for some time. An MIT paper discussed the pros and cons of such practices back in 1995. Canada’s Financial Intelligence Unit, FINTRAC,, for one, has acknowledged receiving information on Canadian origin SWIFT transactions since 2002. Of course, this info is provided by the banks themselves.

Claims that The New York Times (and other newspapers which published stories about this program) disclosed information about banking surveillance which could help terrorists are factually false. Nobody can identify a single sentence in any of these stories which disclosed meaningful information that terrorists would not have previously known or which they could use to evade detection. To the extent that it is (ludicrously) asserted that the more they are reminded of such surveillance, the more they will remember it, nobody has spoken more openly and publicly about the Government's anti-terrorism surveillance programs than a campaigning George Bush.

In this regard, the bloodthirsty calls for Bill Keller and other editors and reporters to rot in a federal penitentiary are simply outside the scope of rational thought. Similar calls have issued in response to the Times' oh-so-shocking disclosure that the U.S. Government eavesdrops on the telephone calls of terrorists, even though the President himself ran around for several years boasting about -- and detailing -- our efforts to eavesdrop on the international telephone calls of terrorists. Here is George Bush, on June 9, 2005, in Columbus, Ohio, disclosing to the terrorists that they can no longer change cell phones as a means to evade our surveillance:

One tool that has been especially important to law enforcement is called a roving wiretap. Roving wiretaps allow investigators to follow suspects who frequently change their means of communications. These wiretaps must be approved by a judge, and they have been used for years to catch drug dealers and other criminals.

Yet, before the Patriot Act, agents investigating terrorists had to get a separate authorization for each phone they wanted to tap. That means terrorists could elude law enforcement by simply purchasing a new cell phone. The Patriot Act fixed the problem by allowing terrorism investigators to use the same wiretaps that were already being using against drug kingpins and mob bosses.

We've endured six months now of increasingly shrill and vicious assaults on the nation's media, whereby any journalist who publishes information which George Bush wants to conceal is branded a traitor and a criminal deserving of imprisonment, if not worse. And all of it is based upon a plainly false factual premise -- that these stories are disclosing information which can help the terrorists evade surveillance because they are disclosing critical operational details of our surveillance programs. Which information specifically has been disclosed that: (a) was not previously disclosed and (b) can help terrorists evade detection? There is none.

Thus, all anyone has to do to realize the sheer falsity of those claims is to compare the "treasonous" articles in question to prior public statements and documents from the Bush administration. Terrorists already knew that we were attempting to eavesdrop on their telephone calls because the Bush administration repeatedly talked about our surveillance programs. And, for the same reason, terrorists already knew that we were monitoring banking transactions -- including specifically those effectuated through SWIFT. And yet we are subjected to an increasingly frenzied lynch mob insisting that reporters have committed treason without their ever really being challenged by the media itself over these factually false claims.

None of this has to do with anger over "helping the terrorists." The articles in question so plainly do nothing of the sort. The anger that is unleashed by the media doing its job is the by-product of a belief that the Bush administration should be able to act in complete secrecy, with no checks or oversight of any kind. And it is equally grounded in the twisted view that American interests are synonymous with the political interests of the Bush administration, such that harming the latter is, by definition, to harm the former. In this view -- which has predominated over the last five years -- to oppose the Bush administration's "national security" policies is, by definition, to act against the United States and aid and abet The Terrorists.

The media is guilty of publishing stories which might harm the political interests of the President, not which could harm the national security of the United States. But Bush supporters recognize no such distinction. Harming the "Commander-in-Chief in a time of war" is, to them, synonymous with treason. Hence, we have calls for the imprisonment of our national media for reporting stories which tell terrorists nothing of significance which they did not already know, but which instead, merely provoke long-overdue democratic debates about whether we want to be a country in which we place blind trust in the administration to act in total secrecy.

(2) The reason there is "no evidence of abuse" is precisely because the administration exercises these powers in total secrecy.

One of the most favorably cited articles over the last few days by Bush supporters urging the imprisonment of journalists was this angry screed from Michael Barone, entitled "The New York Times at war with America." The heart of the argument is this claim:

Why do they hate us? Why does the Times print stories that put America more at risk of attack? They say that these surveillance programs are subject to abuse, but give no reason to believe that this concern is anything but theoretical.

If it were the case that the Bush administration were abusing its surveillance and intelligence-gathering powers -- by, for instance, spying on innocent Americans or gathering data on the private lives of its political opponents -- how would we possibly know? How would it ever become something other than a "theoretical" concern? It couldn't be.

The whole point -- the one which The New York Times is attempting finally to examine -- is that we have previously decided as a nation that we want our Government to engage in aggressive intelligence-gathering activities against our enemies, but we trust the Government to do so only with active and vigilant oversight from other branches to ensure that there is no abuse, and do not trust these powers to be exercised in secret. That was the whole point, for instance, of FISA -- passed 95-1 by the Senate 28 years ago. We want the Government to engage in aggressive eavesdropping, but only trust it to do so with judicial oversight, precisely because allowing the Government to do so in secret means that we will never discover abuse of those powers.

To assert that we need not worry about anything because there is "no evidence of abuse" -- that we should keep our heads down and go about our business -- is plainly, even painfully, illogical. The reason we don't want the Government to be able to act without oversight is precisely because they can then abuse its powers without being detected, i.e., without there being any "evidence of abuse." If the Bush administration exercises these powers with no governmental oversight -- as it does -- how does Michael Barone think there would be any evidence of abuse if, in fact, the administration was abusing its power?

Administrations of both parties systematically abused its eavesdropping powers for 40 years without detection precisely because it operated in secrecy. The reason why it is dangerous to allow the Government to act in secrecy -- to troll at will through our financial transactions and listen in on our telephone conversations -- is precisely because there is no way to learn of abuses. To assert, as Barone has, that abuse is "only theoretical" is to illustrate why oversight is needed, not to demonstrate that it is unnecessary.

The defining ethos of our country is a distrust of government power -- or at least it always used to be. The entirety of the Constitution is devoted to imposing safeguards against government abuses because our country was founded upon the principle that we do not place blind faith in political officials to act properly. But the argument being peddled now is that we can place blind trust in the Bush administration and we need not worry ourselves about anything. At the very least, such a dramatic reversal of how we think about our government ought to be the subject of debate. That is the "public interest" to which Bill Keller is referring when explaining why the Times ran this story. And that is precisely what the media is supposed to do.

(3) The Founders unequivocally opted for excess disclosures by the media over excess government secrecy and restraints on the press.

These debates over the media are not new. A free press, publishing government secrets, has been the enemy of governments wherever a free press existed. It is supposed to be that way. The reason the Founders guaranteed a free press is to ensure that there would be an adversary of the Government, an entity which uncovers and discloses government conduct which political leaders want to conceal. As a result, it was hardly unforeseen by the Founders that the Government would be hostile and resentful of the press. Hostility and adversarial struggles were supposed to be an intrinsic attribute of the government-press relationship.

And the Founders equally recognized that, as a result of this inherent conflict, the Government would attempt to do exactly what the Bush administration and its supporters are now actively pursuing -- that is, using governmental power (such as the power of anti-press legislation, prosecution and/or imprisonment) to forcibly limit what the media can report and/or to intimidate them from reporting facts which the Government wanted to conceal. The Constitution resolves that conflict in favor of the press in the First Amendment to the Constitution by making the prohibition on anti-press government restraints absolute and unambiguous.

Bush supporters want nothing less than to re-visit the Founders' resolution and reverse it. They want to replace the wisdom of Thomas Jefferson and Benjamin Franklin with regard to press freedoms with the superior judgment of Dick Cheney, Congressman Peter King and Michelle Malkin, who want to imprison reporters for what they publish. They simply don't believe in the same principles that the Founders embraced and enshrined for our country. These observations from Jefferson simply leave no doubt about that:

Jefferson warned:

"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."

And in the debate over whether to favor excessive disclosure or excessive government secrecy, Jefferson left little doubt as to how that conflict was resolved by the Founders: in choosing "government without newspapers or newspapers without government, I should not hesitate for a moment to prefer the latter."

Bush supporters plainly disagree with both assessments. They believe in government power that cannot be checked by the press, at least under this administration. The government can act in total secrecy, and journalists ought to be imprisoned if they disclose information which the President decrees should be kept secret. They believe that the Bush administration should be able to dictate what the media reports (as Michael Barone revealingly complained: "Once again, Bush administration officials asked the Times not to publish the story. Once again, the Times went ahead anyway"). That is a theory of government which has been advocated by other countries. But it has never previously taken hold in the United States. It is now close to doing exactly that.

(4) How can any rational person believe that the reporters and editors of The New York Times want to help terrorists attack the U.S.?

After the 9/11 attacks, it became a common topic of discussion among residents of New York City as to which sites were the most likely targets for future terrorist attacks -- bridges, subways, tourist attractions, centers of commerce, etc.? Virtually everyone recognized that one of the most obvious targets for terrorists is Times Square, which has everything a terrorist could want -- symbolic value, great economic impact, a locale in the heart of America's most important city, and a permanently congested square always packed full with residents, workers, and tourists.

The reason the intersection of 42nd Street and Broadway has the name "Times Square" is because it is the home of The New York Times. There are few people more at risk in the event of a future terrorist attack then the reporters and editors of The Times, who work (and often live) in the middle of Manhattan, at the epicenter of one of the most obvious terrorist targets in the country. Nobody would be less likely to want to aid terrorists in committing a terrorist attack than the reporters and editors of The New York Times. That's just obvious. And yet all sorts of people who live and work in distant places that are far less likely to ever be the target of a terrorist attack so whimsically and stupidly accuse the journalists at the Times of wanting to help terrorists stage attacks against America.

That is the level of discourse and reasoning flooding the airwaves and public debates. Accordingly, the reporters of the Times are not publishing these stories because they believe that Americans ought to know about and debate the Bush administration's secret, oversight-less intelligence-gathering programs. No -- it's because they are enemies of the United States, they hate Americans, and they want to help The Terrorists stage attacks on this country (of which they are the most likely targets). To see the face of genuinely demented Orwellian hate rituals, behold these posters published by Michelle Malkin launching accusations against and urging attacks on The New York Times. All of this is truly the stuff of hysterical, deranged, hateful lynch mobs -- not of rational discussions -- and yet it is driving radical changes in how our country functions.

UPDATE: It really seems as though there is some sort of unannounced competition among Bush supporters to out-do one another in making increasingly rabid, extremist, and truly deranged claims. Powerline's Scott Johnson, for instance, says that waging war on The New York Times has now become a critical "front" in the War on Terror. Seriously:

If America is going to wage a war against terrorism, it must indeed act on all fronts. In 2006, it needs to act on the home front and direct its attention to those whose war on the administration is unconstrained by the espionage laws of the United States.

We can't just confine our war-making to the terrorists and their friends overseas, but must also wage war here at home against the terrorists on our own soil, such as The New York Times. Johnson is arguing that what the administration has been doing "to the terrorists" in Iraq, Afghanistan, Guantanamo Bay and Eastern European gulags -- the other "fronts" in the War on Terror -- it must now begin doing to the terrorists and their allies within our own borders, such as American newspaper editors and reporters.

And National Review's editors yesterday urged that for the Times and "other publications which act irresponsibly . . . their press credentials should be withdrawn." Presumably, the only reporters who should be allowed onto government property would be Byron York, Sean Hannity and Jeff Gannon. Already, Dick Cheney confines his "interviews" to obsequious Administration worshippers such as Brit Hume, Rush Limbaugh and Laura Ingraham. We are in a (undeclared, permanent, endless) War, and unfriendly journalism is simply not a luxury we can afford.

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