Obama Following in Nixon's Footstep
August 5, 2013
Adam Liptak / The New York Times & William Boardman / Reader Supported News
The US government is prosecuting leakers at a brisk clip and on novel theories. It is collecting information from and about journalists, calling one a criminal and threatening another with jail. The government's vast surveillance apparatus has unsettled time-honored understandings of the role of mass media in American democracy.
Obama Has Followed in Nixon's Footsteps:
Court Rulings Blur the Line Between a Spy and a Leaker
Adam Liptak / The New York Times
WASHINGTON (August 2, 2013) -- The federal government is prosecuting leakers at a brisk clip and on novel theories. It is collecting information from and about journalists, calling one a criminal and threatening another with jail. In its failed effort to persuade Russia to return another leaker, Edward J. Snowden, it felt compelled to say that he would not be tortured or executed.
These developments are rapidly revising the conventional view of the role of the First Amendment in national security cases. The scale of disclosures made possible by digital media, the government's vast surveillance apparatus and the rise of unorthodox publishers like WikiLeaks have unsettled time-honored understandings of the role of mass media in American democracy.
This is so even where the government was the nominal loser. Consider the case of Pfc. Bradley Manning, who dodged a legal bullet on Tuesday, winning an acquittal on the most serious charge against him: that releasing government secrets to the public amounted to "aiding the enemy."
But a dodged bullet is still a bullet.
The military judge in Private Manning's case ruled last year that there was no First Amendment problem with the government's legal theory. Providing classified information for mass distribution, she said, is a sort of treason if the government can prove the defendant knew "he was giving intelligence to the enemy" by "indirect means."
The verdict thus means only that military prosecutors did not prove their case. The legal theory stands, and it troubles even usual critics of unauthorized disclosures of government secrets.
"It blurs the distinction between leakers and spies," said Gabriel Schoenfeld, the author of Necessary Secrets: National Security, the Media, and the Rule of Law. He said the government might have lost a battle but made headway in a larger war by "raising the charge and making it seem plausible."
Something similar happened in 1971, when President Richard M. Nixon failed to stop the publication of the Pentagon Papers, a secret history of the Vietnam War. The Supreme Court's ruling allowing The New York Times and The Washington Post to publish the papers is often said to be a high-water mark in the annals of press freedom.
But like the Manning verdict, the decision represented a shift in the understanding of the First Amendment.
"The American press was freer before it won its battle with the government," Alexander Bickel, the Yale law professor who represented The Times in the case, wrote in his classic 1975 book, The Morality of Consent.
"Through the troubles of 1798, through one civil and two world wars and other wars, there had never been an effort by the federal government to censor a newspaper by attempting to impose a prior restraint," Professor Bickel wrote. "That spell was broken, and in a sense, freedom was thus diminished."
Worse, from the perspective of the news media, the victory in the Pentagon Papers case was distinctly limited and helped shape the Manning prosecution.
"A majority of the Supreme Court not only left open the possibility of prior restraints in other cases but of criminal sanctions being imposed on the press following publication of the Pentagon Papers themselves," Floyd Abrams, who also represented The Times in the case, wrote in a new book, Friend of the Court.
According to a 1975 memoir by Whitney North Seymour Jr., who was the United States attorney in Manhattan in the early 1970s, Richard G. Kleindienst, a deputy attorney general, suggested convening a grand jury in New York to that end. Mr. Seymour said he refused. A grand jury was then convened in Boston, but it did not issue an indictment.
The "aiding the enemy" charge in the Manning case was based on military law, and it is not directly applicable to leakers in other parts of the government or to reporters and publishers. But the theory on which it was based has echoes in the more general espionage laws.
Until recently, its leading proponent was Nixon, who mused on the matter in a meeting in the Oval Office the day after The Times published the first installment of its reports on the Pentagon Papers.
"That's treasonable," he said to an aide, "due to the fact that it's aid to the enemy and it's a release of classified documents."
In Fighting for the Press, a new book about the case, James C. Goodale, who was general counsel of The New York Times Company at the time, said President Obama has followed in Nixon's footsteps.
"Obama apparently cannot distinguish between communicating information to the enemy and communicating information to the press," Mr. Goodale wrote. "The former is espionage, the latter is not."
But John Yoo, a law professor at the University of California, Berkeley, and a former Bush administration lawyer, said that distinction broke down in the Manning case because he did not make his disclosures directly to the establishment press.
"Manning's defenders will say that Manning only leaked information to the 21st-century equivalent of a newspaper, and that he could not have known that Al Qaeda would read it," Professor Yoo wrote in National Review Online.
"But WikiLeaks is not The New York Times or The Wall Street Journal, and it does not have First Amendment rights," he added. "Manning communicated regularly with WikiLeaks' founder and would have known about the group's anarchic, anti-US mission."
In June, David Gregory asked Glenn Greenwald a question in a similar vein on NBC's "Meet the Press." Mr. Greenwald had written articles on government surveillance programs for The Guardian based on materials from Mr. Snowden, a former National Security Agency contractor.
"To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn't you, Mr. Greenwald, be charged with a crime?" Mr. Gregory asked.
Mr. Greenwald responded, "If you want to embrace that theory, it means that every investigative journalist in the United States who works with their sources, who receives classified information, is a criminal."
The Obama administration seemed to adopt that view in seeking a court order to examine the e-mails of James Rosen of Fox News. The administration's lawyers said there was "probable cause to believe" that Mr. Rosen was "at the very least" an "an aider and abettor and/or co-conspirator" in violations of the espionage laws.
New Justice Department guidelines, partly a reaction to the furor over the Rosen matter, say the department will not treat "ordinary news-gathering activities" as criminal conduct. But the guidelines do not define those activities.
Last month, a federal appeals court agreed with the Justice Department that James Risen, an author and New York Times reporter, must testify in a prosecution under the espionage laws or face contempt charges.
To date, there have been no prosecutions of journalists in the United States for seeking or publishing classified information. But two lobbyists with the American Israel Public Affairs Committee, Steven J. Rosen and Keith Weissman, were charged in 2005 with violating the espionage laws for conduct they said was functionally equivalent to journalism: they had learned government secrets and passed them along to others.
As in the Manning case, the firewall turned out not to be the First Amendment but the difficulty of proving intent. After Judge T. S. Ellis of Federal District Court in Alexandria, Va., ruled that the government had to show the defendants knew their conduct would hurt the United States, prosecutors dropped the charges.
But Judge Ellis had a larger message, too. He said the case "exposes the inherent tension between the government transparency so essential to a democratic society and the government's equally compelling need to protect from disclosure information that could be used by those who wish this nation harm."
"The rights protected by the First Amendment," he added, "must at times yield to the need for national security.
Talk About Police States
William Boardman / Reader Supported News
(August 3, 2013) -- With much of the country aware of the extent of government spying on and lying to American citizens, there is now a limited public discussion of what kind of country we want ours to be. The limits of that discussion are illustrated by recent public utterances of two Democratic senators, Diane Feinstein of California and Ron Wyden of Oregon.
For more than two years, Senator Wyden has been warning that the National Security Agency (NSA) has been operating outside the law for more than seven years. His warnings have been limited and cryptic because he was bound by secrecy law not to tell the truth he knew. That ended when Edward Snowden started sharing truthful information that confirmed everything Senator Wyden had implied and more.
On July 24, a near-majority of members of the House of Representatives supported an amendment to a military spending bill that was intended to put some limits on the NSA's ability to spy on all Americans all the time.
President Obama opposed any such limitation and, working with House Speaker John Boehner and Minority Leader Nancy Pelosi, managed to defeat the amendment by a vote of 217-205. Each party split fairly evenly, with 111 Democrats and 94 Republicans voting for greater limits on NSA spying on Americans.
On One Side, Senator Wyden
Calls for More Transparency and Control
On July 30 on the floor of the Senate, Senator Wyden continued to campaign for more open and effective control of American intelligence agencies and to hold them accountable for violations of law that are still unknown to the public:
... the violations that I touched on tonight were more serious, a lot more serious, than the public has been told. I believe the American people deserve to know more details about these violations that were described last Friday by Director [of National Intelligence James] Clapper. Mr. President [of the Senate], I'm going to keep pressing to make more of those details public.
And, Mr. President, it's my view that the information about the details, the violations of the court orders with respect to the bulk phone record collection program, the admission that the court orders had been violated has not been, I think, fully fleshed out by the intelligence community, and I think considerable amount of additional information can be offered without in any way compromising our national security.
And there's the rub -- "without in any way compromising our national security" -- for in those words, Senator Wyden conceded the conventional framing of the question: the assumption that what the secret agencies do actually does protect national security, even though there's little or no evidence to support that assumption. In a rational world, the burden of proof would be on the intelligence agencies to show that they need to take away freedom to keep us safe and to prove that any serious, credible threat exists.
Americans have lived for decades in fear of threats identified by the U.S. government without credible supporting evidence. Our government routinely inflated the Soviet threat even, as well as obviously non-threatening enemies like Libya or Nicaragua or Cuba (still).
On the Other Side, Senator Feinstein Dismisses Transparency and Control
Rather than fading with the passing of the cold war, American susceptibility to threat was re-invigorated in 2001 by the attacks of 9/11, which demagogic politicians in and out of government routinely invoke to cow those who resist the increasing militarization of domestic society. That's just what Senator Feinstein did during a Senate Judiciary Committee hearing on July 31:
I was on the Intelligence Committee before 9/11, and I remember how little information we had and the great criticism of the government because of these stovepipes, the inability to share intelligence, the inability to collect intelligence.
We had no program that could have possibly caught two people in San Diego before the event took place. I support this [NSA] program. I think, based on what I know, they will come after us. And I think we need to prevent an attack, wherever we can, from happening.
Senator Feinstein ends on a familiar note of fear-mongering, the same fear-mongering that has proved effective for more than a decade now, despite its very thin basis in reality. But this is standard demagoguery and the senator has plenty of company in using it, even among her peers in the Senate.
Why Use Fear-mongering and Falsehood to Defend a "Good" Program?
More troubling, although perhaps not more uncommon, Senator Feinstein uses falsehood to reinforce her fear-mongering. When she says, "We had no program that could have possibly caught two people in San Diego before the event took place," she is dishonest.
While it's perhaps technically correct in a lawyerly style to assert that there was no "program," that is a misleading technicality because the CIA knew about those people in San Diego and decided, for whatever reason, not to tell the FBI.
If the purpose of oversight committees is to take a neutral, skeptical view of government programs, then it's a serious problem that Senator Feinstein has the attitude she has and also serves as the chair of the Senate Intelligence Oversight Committee.
For those on the Feinstein side of the argument, apparently the most important objective is to maintain and expand the American security state. That requires maintaining the appearance of a threat to national security, and if the threat should actually be minimal or even illusory, that's no reason to change direction, it's just a reason to be grateful that the expansion of the burgeoning police state may proceed with little real danger -- unless the American people get wise to the con.
Intelligence Expert Makes
Short Shrift of Feinstein's Assertions
Appearing on Democracy NOW on August 1, intelligence expert James Bamford responded to Senator Feinstein's statement with specificity:
... she brings up 9/11. You know, the U.S. government had all the information it needed to prevent 9/11. It didn't need all these bulk data collections and everything else. All it needed to do was have the CIA tell the FBI or the State Department that these two people were coming to the United States -- Khalid al-Mihdhar and Nawaf al-Hazmi -- because they knew it.
They knew it because copies of their visas that had been sent to them. And they knew that they were coming to the United States. The problem here wasn't collecting information; the problem was distributing information. So, justifying all this based on 9/11 is just total nonsense.
At the same committee hearing where Senator Feinstein spoke on July 31, the committee chairman -- Senator Patrick Leahy, Democrat of Vermont -- questioned John Inglis, deputy director of the NSA, as to just how many terrorist plots the NSA had foiled. Inglis started by saying vaguely, "I would say that the administration has disclosed that there were 54 plots that were disrupted...."
NSA Claims 54 Successes, One of Which Might Even Be Real
Under questioning by Senator Leahy, the number of foiled plots quickly dropped to 13, and finally fell to one -- one plot that had, maybe, been foiled by the NSA carrying out surveillance that included all Americans. In other words, the NSA is unable to document a single, unambiguous, successful effort at foiling a terrorist plot -- but in the best case, the maximum total of successes would be one.
Later the same day, but not before Congress, General Keith Alexander, director of the NSA, repeated the assertion that the NSA had thwarted 54 terrorist events.
Again on Democracy NOW, James Bamford put the NSA's record in context, noting that despite years of metadata and email collection,
... we had the underwear bomber, the person that was flying to Detroit that was going to blow up a plane Christmas Day, the Times Square bomber, the two people in Boston that just committed the bombing on the marathon day, and so forth. Now, all those people were communicating internationally, basically.
They were all communicating either to Chechnya, or the Times Square bomber was communicating to Pakistan, and the underwear bomber was in Yemen and communicating with other countries in the Middle East and also to Nigeria, for example.
So if the NSA had been taking all this attention and paying attention to foreign communications and international communications instead of domestic communications, it might have discovered those.
Why Are We Talking About Having
Any Kind of Police State?
Apparently there is general public approbation of the "national conversation" we may be having about Americans spying on Americans. Many in media seem to take a certain smug, self-satisfaction of our "openness" and willingness to confront "hard issues," all of which is bogus in the extreme.
The NSA is only one of 16 secret intelligence agencies under the general control of the Director of National Intelligence. We aren't talking about the others. Even though they have a history of operating outside the law or against it, we aren't talking about them.
We aren't talking about any state intelligence agencies or fusion centers or local intelligence agencies (for example, in New York City or Chicago). Together these number in the thousands.
Fundamentally, we aren't talking about the basic infrastructure of a potential American police state, even though much of that infrastructure is already in place.
For now, the "conversation" is limited to the question of whether the NSA should be spying on us more -- or less. Whether the NSA should be spying on us at all is hardly heard above a whisper.
Our current "conversation" is about the size, shape, and authority of our police state apparatus, not whether or not we should have one.
William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.
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