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The reign of secrecy.

I was speaking with John Dean of Watergate fame a couple of months ago, and he said flat out that the Bush Administration is even more obsessed with secrecy than Nixon's was. At the time, I thought he might have been engaging in hyperbole. But his assessment looks increasingly accurate.

This gang doesn't believe the people have the right to know. And when the media find something out and dare to tell it (that is, when the leak comes not from the White House as propaganda, in which case Bush looks the other way), the Administration goes after them with both barrels.

That's what we've been witnessing with the witch hunt against The New York Times, which was just doing its job in exposing the wholesale gathering of private financial data by the Bush Administration without a warrant.

The Wall Street Journal, a Bush cheerleader, also reported on this story, but Bush and his hatchet men singled out the Times because it serves their political interests to attack a liberal newspaper.

Representative Peter King, chairman of the House Homeland Security committee, wanted to get the cuffs on the editors of The New York Times.

"We're at war," he said, "and for the Times to release information about secret operations and methods is treasonous."

King said he would ask Attorney General Alberto Gonzales to "begin an investigation and prosecution of The New York Times--the reporters, the editors, and the publisher." (Gonzales needs little encouragement. He's been threatening for months to prosecute journalists.)

Speaker of the House Dennis Hastert followed with "loose lips sink ships," suggesting yet again that the liberal media are endangering the troops.

One pundit on Fox even suggested the editors of The New York Times should be lined up and shot by firing squad!

Dick Cheney, who might volunteer for the duty, also dumped on the Times, saying that "some of the news media take it upon themselves to disclose vital national security programs." This most offensive Vice President said, "That offends me."

Taking his cue from Cheney, as usual, Bush called the publication of the story "disgraceful," adding, "For people to leak that program and for a newspaper to publish it does great harm to the United States of America." The revelation, he said, "makes it harder to win the war on terror."

But the terrorists surely know that the U.S. government has been tracking their financial transactions. Bush himself has boasted of this. What the Times story revealed, though, was that the Administration may be violating the law and our privacy in the process.

The Right to Financial Privacy Act of 1978 says, "No Government authority may have access to, or obtain copies of, the information contained in the financial records of any customer from a financial institution unless the financial records are reasonably described" and "a copy of the subpoena or summons has been served upon the customer or mailed to his last known address." The government can delay notice to the customer "by order of an appropriate court." There is an exception for a "legitimate law enforcement inquiry respecting name, address, account number, and type of account of particular customers."

But, according to the Times article, "Treasury officials did not seek individual court-approved warrants or subpoenas to examine specific transactions, instead relying on broad administrative subpoenas for millions of records." Nor do any of the customers appear to have been notified, and nor does the government appear to have gone to a judge to delay that notification.

Do you want the government to have your financial records without a specific warrant? That is, to say the least, a legitimate question for public debate.

But the Bush Administration disdains public debate and despises the media--aside from Fox and Rush and a few others in its pocket.

By blaming the press in language not heard since the days of Spiro Agnew, the Bush Administration aims to score points with a credulous public and to intimidate an already timid journalism corps.

To my eyes, The New York Times has not been aggressive enough. It held the NSA spying story for more than a year, and it let Judith Miller funnel Administration propaganda right onto the front page in the lead-up to the Iraq War.

In a letter to readers on June 25, Times Executive Editor Bill Keller revealed just how solicitous the Times has become of the Administration's views.

"Our decision to publish the story of the Administration's penetration of the international banking system followed weeks of discussion between Administration officials and the Times, not only the reporters who wrote the story but senior editors, including me," Keller wrote. "We listened patiently and attentively.... We weighed most heavily the Administration's concern that describing this program would endanger it."

But the President doesn't deserve a seat at the editorial meetings of The New York Times--or any other newspaper. That is not his place. He is commander in chief, not editor in chief.

It is up to reporters, editors, and publishers to decide what is news--not the branch of government they are supposed to be covering.

Once the President takes over that job, the fourth estate has lost its function.

So before Gonzales, Cheney, and Bush throw Bill Keller and Arthur Sulzberger Jr. in the hoosegow, they might want to consult a copy of the Constitution, if they can still find one lying around. And they might want to consult the Pentagon Papers decision, which settled this issue thirty-five years ago. "The press was protected so that it could bare the secrets of the government and inform the people," Justice Hugo Black wrote.

Throwing the book at editors is not unprecedented in our country. Back during the 1790s under the Alien and Sedition Acts, then during the Civil War and again in World War I, the government prosecuted editors.

It's not a practice that thrills me, as an editor.

Nor should it thrill you, for that matter, because it's about as blatant a violation of the First Amendment as there is.

What the Bush Administration can't win by bullying and browbeating editors, it hopes to win by invoking doctrines that belong more to authoritarian governments than to ours. We've already seen how expansive its interpretation is of the commander in chief's powers. But Bush doesn't stop there. Repeatedly, his legal wizards, headquartered in Cheney's office, have hauled out the "state secrets" claim to preempt any effort to check those powers. The very label is redolent of old Soviet Big Brotherism. But that hasn't stopped them.

The "state secrets" privilege dates back to 1953, when the Supreme Court, in United States v. Reynolds, ruled that the Executive Branch could bar evidence that was a national security threat. For the next two decades, Presidents rarely used it.

"It was invoked only four times in the first twenty three years after the U.S. Supreme Court created the privilege in 1953," wrote Tom Blanton, director of the National Security Archive, in the Los Angeles Times on May 21. "But now the government is claiming the privilege to dismiss lawsuits at a rate of more than three a year. The Justice Department describes this tactic as an 'absolute privilege'--in effect, a neutron bomb that leaves no plaintiff standing."

The Bush Administration dropped it on FBI whistleblower Sibel Edmonds, whose unlawful firing case was dismissed when the government said that it could not mount a defense because to do so would reveal state secrets.

It used the same justification to dodge prosecution for two cases where it was implicated in torture.

Maher Arar, a Canadian citizen, and Khalid El-Masri, a German citizen, both were detained for months on end and brutalized, Arar at the hands of Syrian proxy torturers, and El-Masri allegedly by the CIA itself in Afghanistan.

Both did not get their day in court.

In the El-Masri case, the judge was almost apologetic about his dismissal. "It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri's complaint," wrote Judge T. S. Ellis on May 12. "If El-Masri's allegations are true or essentially true, then all fair-minded people--including those who think state secrets should be protected ...--must agree that El-Masri has suffered injuries as a result of our country's mistake and deserves a remedy."

Now the Bush Administration is throwing the same tattered cloak over its NSA spying scandal. It is arguing in court that it simply cannot be prosecuted for violating the privacy rights and First Amendment rights of Americans because of the "state secrets" privilege.

In a court filing on May 26, it makes four central claims. First, it says the entire issue involves a state secret and therefore the lawsuits filed by the ACLU, the Council on American-Islamic Relations, Greenpeace, and others should all be tossed out.

"This case is a paradigmatic example of one that should be dismissed on state secrets grounds," the government argues in its brief. It cites a court precedent that says if the "very subject matter of the action" is a state secret, then the case has to be dismissed.

But as the ACLU notes in its response, the NSA spying is hardly a state secret anymore. "The government has not only acknowledged the existence and scope of the program but has engaged in an aggressive public relations campaign to convince the American public that the NSA program is both lawful and necessary to protect national security," the ACLU writes in its brief.

Bush himself has not only admitted to this spying, he proudly defends it, and says he's going to keep doing it, the ACLU notes. And Cheney has given several speeches defending it. Attorney General Alberto Gonzales has testified to Congress about it. And the Justice Department even released a forty-two-page white paper on it.

So how secret is it?

Second, the government argues says that it cannot adequately respond to the specific allegations of the plaintiffs without revealing state secrets, and the revealing of those state secrets would harm national security.

Third, the Bush Administration says the court cannot even adjudicate the constitutional argument as to whether the President needs to follow the Foreign Intelligence Surveillance Act or whether his powers as commander in chief supersede that (or, alternately, as the Administration suggests, that Congress already blessed his actions with its Authorization for Use of Military Force after 9/11). Assessing these arguments "would necessarily require the disclosure of classified details protected by the state secrets privilege," the government says in its brief.

But not to worry: It's all constitutional anyway, the government says.

"The President's decision not to cede control over this vital intelligence collection effort to the potential delays and uncertainties of a judicial process is well-supported and constitutional," the brief says. "But to demonstrate the point would require an exposition of evidence that must remain protected for national security reasons."

Fourth, the continued threat from Al Qaeda itself is "compelling evidence as to the need for the Terrorist Surveillance Program as authorized by the President," the government says. But again: "Further information about this threat cannot be disclosed."

It's a nice, convenient way to argue: We can do no wrong, and you can't even challenge us on this because to do so would reveal state secrets.

As the ACLU points out in its rejoinder, the government's arguments have profoundly disturbing implications. They "could immunize any action taken by the President in the 'war on terror'--including torture and indefinite detention of Americans within our borders," it says (the italics are in the original). "That view of extreme and unchecked executive power is fundamentally inconsistent with American democracy."

A lot of what the Bush Administration has been doing over the past five and a half years has been "fundamentally inconsistent with American democracy."

It's not just up to the courts, it's up to all of us to bring our government into line.

For if we leave the Bush Administration to its own devices, we soon may not be able to recognize our democracy at all.
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Title Annotation:George W. Bush
Author:Rothschild, Matthew
Publication:The Progressive
Geographic Code:1USA
Date:Aug 1, 2006
Previous Article:Troubletown: the march of progress.
Next Article:Bosses and bossism.

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