Important criticism of the Justice Department’s suppression of press freedom remains inadequate.
Finally finding its voice after five years of relative silence, the mainstream establishment press finally woke up this week to criticize the Obama administration's assault on the First Amendment. But, while this criticism is important and necessary, it remains days (indeed, years) late, and much more than merely a dollar short.
Is this America or China?
The Justice Department’s seizure of Associated Press telephone calls without prior notice, in violation of fundamental First Amendment principles, and extending the Obama administration's already hypocritical and authoritarian crackdown on government whistleblowers, is indeed a travesty worthy of this week's onslaught from the press, Congress, and the public. Reaching even beyond the office phone lines of reporters and editors to also invade the privacy of their home and cellular calls, the Justice Department’s tactics seem more fitting in China than the United States.
Noting that “[b]y obtaining these records, the DOJ has struck a terrible blow against…freedom of the press and the ability of reporters to investigate and report the news,” the Electronic Frontier Foundation also noted the broader need to “require more than a mere subpoena…whether the target is the news media or an ordinary citizen.” Few others, however, beyond Glenn Greenwald, have recognized that the assault on press freedom is merely an extension of a longstanding policy shared by presidents from both of the major political parties.
To its credit, the Washington Post expanded the context of its reporting, writing this week that:
President Obama, a former constitutional law lecturer who came to office pledging renewed respect for civil liberties, is today running an administration at odds with his résumé and preelection promises.
The Justice Department's collection of journalists' phone records and the Internal Revenue Service's targeting of conservative groups have challenged Obama's credibility as a champion of civil liberties - and as a president who would heal the country from damage done by his predecessor.
While the Post's pointed criticism is perfectly appropriate, Glenn Greenwald correctly noted that “[it's] breaking news here is only about four years late.” Shortly before Obama’s second inauguration last year, reflecting on Obama's first term and the constitutional damage wrought by the Bush administration, George Washington University law professor Jonathan Turley detailed “10 reasons the U.S. is no longer the land of the free.”
A reporter shield law, but what about whistleblowers?
Reflecting a profound irony, the furor erupting over the investigation may also propel legislation, proposed by the very same White House, to shield reporters from inappropriate investigations by government officials. It is convenient -- perhaps even crass -- for the administration to propose this bill after violating its principles at every opportunity for years, but craven opportunism is nothing new to Washington. So much for “change we can believe in....”
My colleagues have been writing about the need for a reporter shield law for nearly a decade, reflecting the recurring threats to press freedom under both the Bush and Obama administrations. In 2005, New York Times journalists were threatened with prosecution for revealing the National Security Agency’s massive (and unconstitutional, and illegal) domestic spying efforts to the public.
Indeed, when press outlets mouth administration talking points as news, gather news from conflict zones only when embedded in military units enabling outright censorship, fail to critically examine repeated attacks of the fundamental rights of Americans, and even defer to government officials pleading for embarrassing news to remain secret, it may be appropriate to describe media in the US as controlled by the state, rather than free.
It seems to have taken the crackdown to reach the Associated Press for the rest of the news industry to finally recognize that the Obama administration has taken government secrecy to unprecedented levels exceeding even that of the Nixon administration, according to the former general counsel of the New York Times who helped lead the struggle to reveal the Pentagon Papers to the public nearly 40 years ago.
But what about the government whistleblowers who risk their careers to reveal important secrets to the public? As news outlets have finally begun reporting widely, the Obama administration has prosecuted twice as many national security whistleblowers in the past five years than in the entire preceding 225 year history of the country.
Reporters need robust protections, but so do whistleblowers. While the president signed important protections into law last year, conspicuous omissions for national security leave public servants like Bradley Manning at risk of authoritarian prosecution for simply doing their jobs and complying with international laws our nation was once proud to have established after WWII.
The reporter shield law must be broadened to also grant effective protections to government employees with information the public should know.
Attention to the press, but what about the rest of us?
Lost amidst the sudden (yet long overdue) controversy has been any awareness of the Justice Department's many, much worse, and longer standing assaults on the First Amendment.
The press may be a recent victim of unconstitutional government scrutiny, but it is far from the first. And the emphasis on only the most recent examples obscures how badly the rule of law has eroded in America over the past decade.
Greenwald explains that:
For years, the Obama administration has been engaged in pervasive spying on American Muslim communities and dissident groups. It demanded a reform-free renewal of the Patriot Act and the Fisa Amendments Act of 2008, both of which codify immense powers of warrantless eavesdropping, including ones that can be used against journalists. It has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined….
But, with a few noble exceptions, most major media outlets said little about any of this, except in those cases when they supported it. It took a direct and blatant attack on them for them to really get worked up, denounce these assaults, and acknowledge this administration's true character.
If anything, Glenn understates the case.
The invasion of faith institutions by FBI agents and paid provocateurs around the country represents the erosion of the right of free exercise of religion once protected by the First Amendment.
Other First Amendment rights, such as the rights to assemble, speak, and petition our government for redress of grievances, have also been reduced to mere words on paper. Labor organizers and peace activists in multiple cities have been raided by the FBI and still face a grand jury investigation spearheaded by a US attorney named among possible candidates to be the next FBI Director, in J. Edgar Hoover’s mold.
Recent news about the IRS discriminatorily scrutinizing conservative groups reflects suppression of the Tea Party movement and grassroots conservatives. [Note: the Bill of Rights Defense Committee, which publishes this blog, was audited by the IRS in year 2010.] At least the FBI is criminally investigating the IRS.
In sharp contrast, the violent state suppression of the peaceful Occupy movement happened over a year ago, yet was rarely described in those terms despite a coordinated (and documented) campaign across the federal and local governments to suppress speech and assembly. Unlike the more civil suppression of Tea Party groups, there has been no accountability for the numerous agencies, including the FBI (now tasked to reign in the IRS after having bowed to the CIA on torture), responsible for those abuses.
This week’s scandals should impel the press to grow more independent, and Congress to grow more assertive, both through oversight and legislation to protect journalists and national security whistleblowers.
If past is prologue, however, Washington will settle for a meager reform paying lipservice to the principles at stake, while continuing its assault on dissidents, labor organizers, peace activists, Muslims, and the First Amendment writ large.
This is no time to observe these events in passive silence. BORDC organizers are standing by to help coach and support grassroots activists looking for ways to get involved. If not you, who? If not now, when?