Saturday, January 07, 2006


Lion In The Lake

The phrase, "worth the price of admission" is an overused -- and usually inaccurate cliche. Nowadays, as the debate of free vs. paid 'Net content increases, it also has a slightly different meaning. The New York Times believes that their "TimesSelect" opinion writers are significant enough that they justify an admission fee. We shall see. So far, there isn't a Brooks or Dowd column that has tempted me to sign up for it.

On the other hand, the much, much, much smaller competitor to The Times -- The New York Sun -- actually printed such a column in its Friday edition. Eli Lake
has put together a subscription-required piece on the opinion page that is must-reading for those on the write as they wrestle with the NSA/leak/wiretapping issue.

I will excerpt here as much as I hope I can legally get away with:

In the coming months it is all but certain that more reporters will once again be called by Justice Department investigators to give up their anonymous sources. This time, instead of the case of secret agent turned cause celebre Valerie Plame, the new investigation will focus on who told the New York Times about a top-secret program to eavesdrop on calls between America and terrorists abroad.

Conservatives in particular would do themselves a favor by resisting the urge to champion this all but inevitable prosecution. It is true that the disclosure of electronic surveillance meant to detect potential sleeper cells is a graver matter than the outing of a CIA officer turned analyst whose identity was confirmed by the CIA to the reporter who broke the story. But a greater principle is at stake. If the Bush administration succeeds in making journalists a party to anti-leaking cases, then the necessary emergency conditions enacted after September 11 will become permanent and almost impossible to dismantle. Worse still, the public will not get a second and third opinion on the vital questions of whether the government still needs the extraordinary powers it now uses to defend us.

...... (interesting historical material on how the leaking law was recently expanded)....

While nearly everyone can agree that it's important that some things remain secret for the proper operation of statecraft - the nuclear launch codes, for example - the question starts to get interesting when we ask how many secrets are really necessary? Last year, the federal government made more than 15 million separate decisions to classify material. The effect of all of this secret information is to create a new class of people with proper clearances empowered by that fact alone to make more informed decisions on national security. The over-classification of information neuters not only the public's right to know about its government's foreign policy and war strategy, but its ability to even fully participate in that discussion. To support the anti-leaking prosecutions of this administration is to essentially support the notion that the government alone should be the sole arbiter of what classified information the public can know.

....(interesting defense of The Times and criticism of conservatives calling for the paper's prosecution)...

The worry of the NSA program is not that it represents an unconstitutional power grab or that it will lead inevitably to excesses of J. Edgar Hoover's domestic spying of the last century. Rather, if left unchecked by the public, the NSA and other agencies will never voluntarily relinquish its new powers and declare America to be free of sleeper cells. The incentive to warn of lurking threats is ingrained in every budget justification the intelligence community submits.

Since September 11, 2001, the president has rewarded an intelligence bureaucracy that failed America before September 11 with unprecedented authorities, and also by allotting another $14 billion to the community's $30 billion annual budget. The funding and powers of the secret bureaucracies are necessary for the prosecution of the war. But we cannot expect those prosecuting the war today to let us know when we no longer need them. For that we need a press unfettered by the threats of federal prosecutors.
It cannot be overstated how astute and intellectually courageous Eli is in pointing this out. Because, aside from the civil liberties/keeping-the-government-honest aspect of the argument, he also touches upon the least-discussed aspect of this entire "different kind of war" meme that has been the most problematic legacy of 9/11. If the United States is "at war" with an invisible, mercurial, chameleonlike enemy, how can the war ever end? To whom does the United States demand total surrender? Bin Laden? Zarqawi? Zawahiri?

If al Qaeda can be almost anyone, this has the makings of a never-ending war -- and thus calling for the never-ending expansion of a "war-time" president/executive's powers. In the context of what Eli is discussing, preventing "leaks" in the name of "national security" simply enhances the power of the executive and decreases, not merely the independent checking power of the press, but also that Congress which has an institutional role to act in oversight. The media is a force that can allows the various levers of constitutional government to click into action. As Eli also notes, "[I]t looks as if the Justice Department's 2004 audit of the program was likely spawned by the fact that the Times was on the story."

The result of permanent, unquestioned and unexamined war can be nothing more than a fundamental changing of the dynamic that has governed the United States for nearly 220 years. Yes, it is fine -- and accurate -- to note that Lincoln suspended habeas corpus. Yes, it is fine -- and accurate -- to note that Roosevelt interned Japanese-Americans. Fair-minded people could even argue the contemporary and historical "correctness" of those decisions. But, how many are ready to argue that the expanded-executive powers represented in those actions should be the state of affairs in America for 20? 30? 50? 75? years?

If that were to be the case, would it remain "America."

Eli Lake is deep, not shallow.

Dive in.

UPDATE: When I wrote the above, I hadn't noticed that "recognizing the never-ending-wartime- presidency's-powers" meme seems to have been several people's New Year's resolution: A Wall St. Journal article discusses upcoming congressional hearings on the topic. And Jonathan Rauch goes after it as well. And, not surprisingly, my pals at Reason can always be counted on to stir up the, uh, pot. And, no, I'm not just jumping on the bandwagon either; I've been here for years. What took y'all so long to catch up?

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