A Gag on Free Speech
This could be called "crying wolf", but I think not. It is a pattern of abuse practiced by this administration. What think you?
N Y TIMES Editorial
A Gag on Free Speech
Published: December 15, 2006
The Bush administration is trampling on the First Amendment and well-established criminal law by trying to use a subpoena to force the American Civil Liberties Union to hand over a classified document in its possession. The dispute is shrouded in secrecy, and very little has been made public about the document, but we do not need to know what’s in it to know what’s at stake: if the government prevails, it will have engaged in prior restraint — almost always a serious infringement on free speech — and it could start using subpoenas to block reporting on matters of vital public concern.
Justice Department lawyers have issued a grand jury subpoena to the A.C.L.U. demanding that it hand over “any and all copies” of the three-and-a-half-page government document, which was recently leaked to the group. The A.C.L.U. is asking a Federal District Court judge in Manhattan to quash the subpoena.
There are at least two serious problems with the government’s action. It goes far beyond what the law recognizes as the legitimate purpose of a subpoena. Subpoenas are supposed to assist an investigation, but the government does not need access to the A.C.L.U.’s document for an investigation since it already has its own copy. It is instead trying to confiscate every available copy of the document to keep its contents secret. The A.C.L.U. says it knows of no other case in which a grand jury subpoena has been used this way.
The subpoena is also a prior restraint because the government is trying to stop the A.C.L.U. in advance from speaking about the document’s contents. The Supreme Court has held that prior restraints are almost always unconstitutional. The danger is too great that the government will overreach and use them to ban protected speech or interfere with free expression by forcing the media, and other speakers, to wait for their words to be cleared in advance. The correct way to deal with speech is to evaluate its legality after it has occurred.
The Supreme Court affirmed these vital principles in the Pentagon Papers case, when it rejected the Nixon administration’s attempts to stop The Times and The Washington Post from publishing government documents that reflected badly on its prosecution of the Vietnam War. If the Nixon administration had been able to use the technique that the Bush administration is trying now, it could have blocked publication simply by ordering the newspapers to hand over every copy they had of the papers.
If the A.C.L.U.’s description of its secret document is correct, there is no legitimate national defense issue. The document does not contain anything like intelligence sources or troop movements, the group says. It is merely a general statement of policy whose release “might perhaps be mildly embarrassing to the government.” Given this administration’s abysmal record on these issues, this case could set a disturbing and dangerous precedent. If the subpoena is enforced, the administration will have gained a powerful new tool for rolling back free-speech rights — one that could be used to deprive Americans of information they need to make informed judgments about their elected leaders’ policies and actions.
N Y TIMES Editorial
A Gag on Free Speech
Published: December 15, 2006
The Bush administration is trampling on the First Amendment and well-established criminal law by trying to use a subpoena to force the American Civil Liberties Union to hand over a classified document in its possession. The dispute is shrouded in secrecy, and very little has been made public about the document, but we do not need to know what’s in it to know what’s at stake: if the government prevails, it will have engaged in prior restraint — almost always a serious infringement on free speech — and it could start using subpoenas to block reporting on matters of vital public concern.
Justice Department lawyers have issued a grand jury subpoena to the A.C.L.U. demanding that it hand over “any and all copies” of the three-and-a-half-page government document, which was recently leaked to the group. The A.C.L.U. is asking a Federal District Court judge in Manhattan to quash the subpoena.
There are at least two serious problems with the government’s action. It goes far beyond what the law recognizes as the legitimate purpose of a subpoena. Subpoenas are supposed to assist an investigation, but the government does not need access to the A.C.L.U.’s document for an investigation since it already has its own copy. It is instead trying to confiscate every available copy of the document to keep its contents secret. The A.C.L.U. says it knows of no other case in which a grand jury subpoena has been used this way.
The subpoena is also a prior restraint because the government is trying to stop the A.C.L.U. in advance from speaking about the document’s contents. The Supreme Court has held that prior restraints are almost always unconstitutional. The danger is too great that the government will overreach and use them to ban protected speech or interfere with free expression by forcing the media, and other speakers, to wait for their words to be cleared in advance. The correct way to deal with speech is to evaluate its legality after it has occurred.
The Supreme Court affirmed these vital principles in the Pentagon Papers case, when it rejected the Nixon administration’s attempts to stop The Times and The Washington Post from publishing government documents that reflected badly on its prosecution of the Vietnam War. If the Nixon administration had been able to use the technique that the Bush administration is trying now, it could have blocked publication simply by ordering the newspapers to hand over every copy they had of the papers.
If the A.C.L.U.’s description of its secret document is correct, there is no legitimate national defense issue. The document does not contain anything like intelligence sources or troop movements, the group says. It is merely a general statement of policy whose release “might perhaps be mildly embarrassing to the government.” Given this administration’s abysmal record on these issues, this case could set a disturbing and dangerous precedent. If the subpoena is enforced, the administration will have gained a powerful new tool for rolling back free-speech rights — one that could be used to deprive Americans of information they need to make informed judgments about their elected leaders’ policies and actions.
posted by Unicorn | 10:56 AM
15 Comments:
Ah, the wonderful game of which is more important: civil liberty or the government's responsibility to protect its citizens.
Unicorn ... Thx for offering this up for debate.
Joe/Whitney: Not all leaked, "classified," government documents kill innocent people. There have been more than a few that bring to light important and relevant information that makes for a better Republic. It is true such revelations often serve the political purposes of the leakers within the agencies, but they also help the public by opening windows into the bunker of the Bush administration.
I also cringe when I hear of those so willing to trample on the First Amendment.
The standard required for prior restraint is justly set quite high.
The subpoena is as much a "nicety" as FISA court approval is nice-to-have prior to domestic wire-tapping.
On the other hand ... I see a problem with news coverage of a First-Amendment issue like prior restraint. IMO the journalist has an inherent conflict of interest.
Would you rather jack-booted thugs kick in the doors of the ACLU to retrieve the illegally obtained documents?
Frankly, yes. If the steps you outline are appropriate in this case, as determined through the usual process of obtaining a warrant, then they are the steps that should be taken.
What is happening here is the government is trying to skip over all those incovenient steps and, in the process, greatly expand its subpoena power. That is not appropriate.
Legal processes exist for this kind of thing. The gov't should use them, not try to invent new subpoena powers for itself.
I will not be posting any more on this matter, as it isn't, and shouldn't be, a matter of opinion.
Everything in a democracy is a matter of opinion.
But who gets to make that determination? Who gets to decide whether or not a particular piece of information really is sensitive?
Apparently, you do.
What he should do is admit that there is a national security risk in releasing the document
every single one of these stories had a significant impact on national security
It's not a non-sequitur at all. It points out the contradictory nature of your comment.
You start off your argument with a rhetorical question whose import is clearly supposed to be that it is the relevant gov't officials who must decide whether or not a document contains information that, in the wider context, could damage national security; that only they know enough to make that judgment. Then you turn right around and take it upon yourself to assert -- with no supporting argument, just an assertion -- that this document, which, presumably, like the rest of us, you haven't even seen, does contain information that could damage national security. And then you further assert that others did, as well.
How can you possibly know that if the only people qualified to make that judgment are our nat'l security officials?
You can call me dishonest if you want, but I have no idea whether the information in those previous stories negatively affected our national security. It's difficult for me to imagine how some of them could have, easier to imagine for others of them, but I really don't know. And I've certainly got no idea whether the information in a document in the ACLU's possession -- a document I've never seen -- would damage national security.
Why do I keep coming back?
Because deep down, in your heart of hearts, you love me, man?
But who gets to make that determination? Who gets to decide whether or not a particular piece of information really is sensitive?
That's the issue for me, and I'm not convinced that those in authority always have "National Security" in mind, rather than covering up their own questionable practices. i.e. - Cheney's Corporate Cronies setting energy and environmental policy for the "public"; declaring that the Geneva Convention doesn't apply to the USA; the inhumane activities at Guantanamo; etc
But who gets to make that determination?
Due to the subpoena the court will. That's why I believe the subpoena is of vital importance.
The idea of terrorists infiltrating our blessed nation will be no more terrifying than an unchecked executive branch ripping out what makes out Constitution so great while attempting to deter said terrorists. [I readily admit that last sentence is a bit melodramatic, but you get the point.]
I do no share Joe and Whitney's inferred faith in this or any executive administration (but especially this one) to provide the appropriate balance between freedom and safety.
To a certain degree, I share Joe's concern re: the media's ability to determine what will prove detrimental to national security.
However, I am decidedly in favor of the two parties maintaining this tug-of-war as to reduce excess on any side of the competing freedoms.
As much as Joe dislikes the production coming from the Fourth Estate, I suggest the government has not been much more impressive.
I love you with the Looovve of the Loooooorrrrdddd.
That one always makes me cry. Especially with the hand motions. The hand motions get me right here. pats heart
As for the classification debate, I'm a big believer in open government. As such, I think our approach to classification should be similar to the way we think of criminal trials. Just as a criminal defendant is presumed innocent, and guilt must be affirmatively demonstrated beyond a reasonable doubt, information the gov't has should be presumed public, and the need for secrecy must be affirmatively demonstrated beyond a reasonable doubt.
ISTM our gov't increasingly operates on just the opposite principle, however. Everything is presumed to be secret, and they'll think about telling the rest of us (i.e., their bosses) when they get around to it. Classify, and ask questions later. (Much later. If ever.) I don't think that's healthy.
So when something gets "leaked" and gov't officials start going apey (not a reference to anyone on this blog), I'm inclined to tell them to take their medicine. If they didn't behave so secretively, people wouldn't be nearly so eager to find out what they know.
I do no share Joe and Whitney's inferred faith in this or any executive administration (but especially this one) to provide the appropriate balance between freedom and safety.
I resemble that remark.
And with that, I'm off to exercise!
BTW, good post, unicorn. It provoked intelligent discussion, which is the very definition of a good post, IMHO.
Joe:
Earlier this year the Supreme Court ruled the the United States was in violation of the Geneva Convention Common Article Three. This article includes provisions that prohibit "outrages upon personal dignity" and "humiliating and degrading treatment."
In a speech on September 6, 2006 President Bush nevertheless defended the practices of the Military Commissions.
I don't defend the actions of the detainees - but I expect better behaviour by those who profess to defend dignity, freedom and human rights.
One last thought, and if it is related to our discussion ... bonus.
I just couldn't disagree more with my good friend Whitney when she says this topic "isn't, and shouldn't be, a matter of opinion."
TWISI, no matter how you slice it, this will always be a matter of opinion. The government's opinion, the prevailing public opinion, and most importantly, the deciding opinion.
It's the marketplace of ideas. Its Biblical ... (as the kids say ... peep Isaiah 1:18a [& FWIW 1:17 is a personal favorite as well.])
Justice Oliver Wendell Holmes said
... the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.
The Internet and blogs are the embodiment of this marketplace. It just kills me to hear intelligent, opinionated people refuse to engage in discourse.
If time is the limfact, believe me. I feel ya. But based on all this, one should not refuse to engage in the exchange simply because one disagrees.
That's when we all lose.
limfact = limfac, etc, etc...
Apologies. English is my second language. My native tongue is dum-dum.
Whit, your point is well taken.
I wish you all the best on finals, and I will now cease and desist all twisting.
-D-
But twisting is sort of like a hand motion.
Having been loved with the love of the Lord twice in one thread, I hesitate to continue to make myself further disagreeable. But, as Sheriff Bart said to the Waco Kid, I must, I must.
HOWEVER--in the current state of things, divulging classified information to someone without both (1) a security clearance and (2) a need-to-know is a crime. That is a fact of our law. That is not a matter of opinion.
I agree, mostly. At the same time, however, I think it's important to hold out one reservation. That is that in our system, even what is a crime is a matter of opinion. By which I mean that the law may say what it will, convicting someone of a crime still requires convincing 12 citizens to hold the opinion that a crime has been committed. If they say it hasn't, it hasn't.
That sort of thing is prone to happening in these kinds of situations. The gov't -- assuming they've gone through the proper process that Joe outline in his first comment -- identifies the defendant as a "leaker," and the defense identifies him/her as a "whistleblower." If the jury believes the defendant broke the law in the best interest of the country, they can (and often do) refuse to convict.
So even on a subject like whether or not a thing is a crime, it comes down to a matter of opinion.
BTW, should we pull the Flynt Everett story into this discussion? (Which, inexplicably, I can't find an article about to link to.)
(Probably because his name is Flynt Leverett.)
Post a Comment
<< Home