Friday, July 07, 2006


Let The Sun Shine In

Eli Lake continues to be a brave voice on the right.

Earlier this year, the New York Sun writer chided the rush by conservatives to demonize the New York Times for its reporting on the NSA wiretap program. Lake defended the reporting on the grounds that this was yet another example of a government that was becoming more secretive and hidden from necessary scrutiny "by the people":
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.
On Thursday, Eli came back to throw more cold water on the latest rush by conservatives to make the Old Gray Lady's reporting on tracking terrorist bank activity the political football for the new campaign season.

The article
is here (by subscription-only), but I will once again stretch the parameters of fair use:

In the House of Representatives, Republicans are talking about charging the Times journalists under the 1917 Espionage Act, a law that remarkably survives despite its original charter barring even speech that could potentially elicit public criticism of the World War I effort.

The chairman of the House Homeland Security Committee, Peter King, on June 26 had this to say: "We're at war, and for the Times to release information about secret operations and methods is treasonous," despite the fact that the Constitution forbids defining treason the way Mr. King does. The former drug tsar, William Bennett, is now sounding like Arianna Huffington did eight months ago, suggesting that journalists should be threatened with jail time for not disclosing the people who leak to them. Conservative Web logs are full of talk about how journalists and the Times should be prosecuted.

It was bad enough when the left argued for the erosion of press freedoms, but it's incoherent for conservatives to go down this road. Conservatives are supposed to be skeptical about unchecked power for the federal government. It is one of the principles that binds together a coalition of home-schoolers, federalists, gun owners, and tax cutters - the view that while the federal government may be necessary, its power should be checked at every available opportunity.

Yet if conservatives get their way, enormous new powers will be delegated to the federal government. If the executive branch starts prosecuting the recipients of leaks on a wide scale, then Americans would be trusting the people who make national security policy to determine when the rest of us - without clearances - are allowed to know when they make mistakes. Forget for a moment the problems this poses for the First Amendment. What about the values of good government the congressional Republicans who captured the House in 1994 have all but forgotten?

After all, the people who will be entrusted with declassifying the information that newsmen will be allowed to print without fear of legal retribution are not movement conservatives. They are bureaucrats who have proved all too willing so far in this war to declassify selectively all sorts of information damaging to our foreign policy. A policy of prosecuting leaks would not stop them. It would give an advantage to those leakers who have mastered the classification process.


If only the recent bluster was a hypothetical matter. Those calling for a prosecution against newspapers should study the case being brought against two ex-employees of the American Israel Public Affairs Committee. The ex-Aipac aides may not be journalists. But they are being prosecuted for activities protected under the same First Amendment that prohibits Congress from acting against the press. The two, Keith Weissman and Steven Rosen, are not being charged for the possession of classified documents, but rather for having a conversation with a Pentagon analyst, Lawrence Franklin, about information that was likely already in the public sphere.

Who knows what other cases the FBI is now investigating in its zeal to stop press leaks? Already the investigation has led the bureau to call numerous reporters in for confidential witness interviews and to request the archive of a recently deceased columnist, Jack Anderson...
Ultimately, the result (if not the intention) of this will be an intimidation of the press until media becomes little more than stenographers printing "official story" of events. That is not something that a free people would wish.

Oh, and yes it must be said again: The need for vigilance on official action is even greater precisely because the war on terror is an open-ended enterprise which threatens to become an indefinite semi-permanent status quo. Such a state is inherently incompatible with the principles that underscore a constitutional republic based on limitations of executive power.

Let's hope more on the right will take heed of Eli's warning.

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