Orange County (CA) Register: Press vs. president

[question everything]

Sunday, July 16, 2006
Press vs. president
Whom do you trust, George Bush or the New York Times' Bill Keller? Has this administration been especially threatening to free speech?

By ALAN W. BOCK
senior editorial writer

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Most presidents, once in office, seek to expand executive power vis-a-vis legislative and judicial power. The founders, no Pollyannas about human nature, expected this; it was one of the reasons they erected a government with three branches, counting on all of them to check and balance the ambitions for power of the others. This president, perhaps helped along by having on board Vice President Cheney and Secretary of Defense Don Rumsfeld, who were around during Watergate and considered it a tragedy mainly in that it weakened the prestige and power of the presidency, has been more aggressive than most in seeking more power and the ability to exercise it in secret. Presumably he believes sincerely that this is the best way to protect America in the wake of 9/11.


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So now we have the obvious concern within the government over several recent disclosures about how the administration is waging the "war on terror." There was the New York Times' disclosure last December of the National Security Agency phone surveillance program, the Washington Post's disclosure in May of the practice of "extraordinary rendition," or turning over captives to foreign countries reputed to use torture, and the disclosure in June – by the New York Times and the Los Angeles Times, and the Wall Street Journal – of the use of the Belgian-based SWIFT consortium of international banks to track financial transactions of suspected terrorists or those who help to finance them. U.S. Attorney Alberto Gonzales has stated, in an ABC News interview, that journalists might be prosecuted under the 1917 Espionage Act for publishing articles based on leaks of classified information. Whether this threat is carried out or not, it was obviously intended to have a chilling effect on journalists who get use government leakers – or whistleblowers – to get stories.

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Whatever the real motivation for the invasion of Iraq, the public justification of it was riddled with errors and misleading statements. Both Condoleezza Rice and President Bush commented to the effect that you wouldn't want to smoking gun to be a mushroom cloud when they had to know Saddam Hussein was nowhere near having a nuclear weapon. While skepticism about the need for government secrecy is usually justified, however, there are instances where publication of a secret can be genuinely damaging. I'm not aware of any occasion where one of the media has published news of impending troop movements or details about available weapons in a way that endangers U.S. troops in actual combat, but that would be one of many instances even most journalists would agree is out of line.

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The NSA surveillance program revealed last December was noteworthy and newsworthy because it seemed to violate (nobody's tested it in court yet and we don't expect Alberto Gonzales to file charges on George W. Bush) the 1978 Foreign Intelligence Surveillance Act, which required warrants, issued by a secret court, for any surveillance of a U.S. resident. The SWIFT program might violate the law – there are bank privacy statutes, and while the administration contends SWIFT is not a bank but a consortium, it deals solely with banks. But it is most noteworthy for the fact that the government officially kept it secret , from everybody but a few select Congress members who were sworn to silence, for almost five years. If it was so important, that should have been enough time to get Congress to cement its legality in law, perhaps through a minor tweak in banking statutes.

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Government employees are bound by secrecy laws about when and how classified material can be promulgated, but those in the private sector are not. The U.K. has an Official Secrets Act that covers private citizens but the United States doesn't. Thus the threat to prosecute newspapers or reporters under the Espionage Act of 1917, which has never been used to go after journalists. Peter Scheer, executive director of the California First Amendment Coalition and a lawyer as well as a journalist, thinks it would be difficult to make good on that threat. While the language of the act is arguably broad enough to cover journalists, he told me, an appellate court would probably look to the legislative intent to find Congress didn't intend to prosecute journalists. And there would be First Amendment issues that might prevent it being used on journalists. But defending such a case would be expensive and potentially chilling. I doubt the administration will go much beyond jawboning the press. However, since most journalists, especially in Washington, are more lapdogs than watchdogs of the permanent government anyway, a little jawboning might just be enough to deter at least some embarrassing investigations.

http://www.ocregister.com/ocregister/opinion/columns/article_1211968.php