It is an easy step from restraining the press to making it place the worst actions of government in so favorable a light that we groan under tyranny and oppression without knowing from whence it came.
Abraham Lincoln, Cooper Square, New York, 1860.
Do you agree or disagree with the following statements: Newspapers should honor government requests to withhold publishing information that might hurt efforts to win the war on terrorism? Strongly agree: 57%. Mildly agree: 18%.
Annual First Amendment Center survey, “The State of the First Amendment 2006.”
The Bush administration’s sudden decision to apparently end the president’s illegal unleashing of the National Security Agency’s secret, warrantless spying on us does not offer an armistice on the Bush team’s pursuit of the press as a danger to national security.
If you look behind the curtain of this “retreat” on the commander-in-chief’s “inherent power” to deal with terror as he sees fit, it is not clear whether placing the responsibility on the special Foreign Intelligence Surveillance Court—which hears only government lawyers before it makes a ruling—means the court will issue individual warrants or a blanket dragnet of warrants not attached to a specific person. A classic example are the “John Doe” nameless warrants attached to a particular telephone and everyone using it. Similarly, an Internet provider could be served with such a blanket warrant.
Also, the president in no way acknowledges that he broke the Foreign Intelligence Surveillance Act in the NSA’s warrantless filling of FBI and CIA databases in its secret spying. As New York Times legal analyst Adam Liptak noted on January 19: “The administration continues to maintain it is free to operate without court approval.” The president has not embraced the Fourth Amendment and judicial review of his “inherent” powers, despite his backtracking on the warrantless spying.”
Furthermore, in a little–noticed declaration on January 17, the nation’s chief law enforcement officer, Attorney General Alberto Gonzales, said in a speech at Washington’s American Enterprise Institute that federal judges are not “equipped to make decisions” about actions taken by the commander-in-chief regarding national security. “A judge,” said Gonzales, “will never be in the position to know what is in the national security interest of the country.” So judges should back off.
The ever–loyal attorney general would not have issued this manifesto of unchecked presidential powers without knowing he had the approval of the man who made him what he is today.
Whatever we do find out about Bush’s real deal on National Security Agency and surveillance and the FISA court, the president doesn’t need judges or warrants to keep a constant eye on members of the press who spread “leaks” about his secret decisions to safeguard national security.
At the National Press Club in Washington last September 28, ABC News investigative reporter Brian Ross told what happened after he and his colleague, Richard Esposito, had aroused the government’s ire by reporting on CIA secret prisons and kidnappings. “A short while after we did our stories,” Ross said, “Rich got word from his source: ‘We know who you’re talking to. They’ve got your phone records.'” (One of the calls in those records was by me.)
Brian Ross had not been served with any government subpoenas or been questioned by government agents. Without a judge’s ruling, his phone records, he figured out, had been taken through a National Security Letter—which he pointed out, the FBI can “serve on the phone company, the credit card company, the bank, the library, and that information must be turned over.” Like the “general search warrants,” which British customs officers wrote by themselves so they’d have license to barge into the 18th-century Americans’ offices and homes, National Security Letters do not require a judge’s approval.
And when judges are involved in the government’s tracking of journalists, increasingly reporters are in peril. The First Amendment Center’s Paul McMasters reports:
“Joshua Wolf is a San Francisco freelance journalist and blogger who refused to give up an uncut video of a violent protest to U.S. prosecutors. He has now served more time in prison than the 85 days former New York Times reporter Judith Miller served last year for refusing to reveal her sources in the Valerie Plame leak case.”
In the landmark free-press 1971 “Pentagon Papers” case (New York Times Co. v.
United States)—in which the Nixon administration demanded severe punishment for the New York Times‘s having published highly classified information on government conduct (and lies) in the course of the Vietnam War—Justice Hugo Black, writing in the majority, warned of government brandishing “national security” to silence the press in time of war. “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic,” Black wrote. “The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.”
But among the dissenters, Justice Harry Blackmun warned: “The First Amendment . . . is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation’s safety . . . I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment . . .
“If damage has been done . . . and these newspapers continue to publish the critical documents and there results the death of soldiers [and] the prolongation of the war . . . then the Nation’s people will know where the responsibility for these sad consequences rests.”
As George W. Bush continues to act, and believe, in the “inherent power” of the commander-in-chief, the John Roberts Supreme Court will, in time, decide whether Hugo Black’s understanding of the First Amendment prevails or whether Harry Blackmun, Alberto Gonzales, and Commander Bush speak for the nation as the press becomes strictly controlled for a long time to come.
Hugo Black once insisted: “We must not be afraid to be free.” What will the public’s answer be if there’s another 9-11?
This article from the Village Voice Archive was posted on January 23, 2007