A Gag on Free Speech

by

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.

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24 Responses to “A Gag on Free Speech”

  1. Whitney Says:

    I work in government security.
    Classified means classifed.

    Most things that are classified become unclassified in a matter of time. I don’t think it is your business or mine–especially in a time where SO MANY people can use seemingly innocuous information (to you or me, perhaps) to kill us. If we don’t have clearance or a need-to-know, the law states the document is not for our eyes to see, and certainly not the ACLU either.

    It’s a matter of law.

    I will not be posting any more on this matter, as it isn’t, and shouldn’t be, a matter of opinion.

  2. Joe Longhorn Says:

    Would you rather jack-booted thugs kick in the doors of the ACLU to retrieve the illegally obtained documents?

    Sounds to me like the Government has probable cause here and doesn’t even need to deal with the niceties of a subpoena.

    Here is what should happen:

    1) Government obtain warrant.
    2) Government enter the offices to retrieve illegally obtained documents.
    3) Investigate.
    4) Prosecute.

    End. Of. Story.

  3. DeJon Redd Says:

    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.

  4. juvenal_urbino Says:

    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.

  5. Joe Longhorn Says:

    You’re right, Dejon. Not all released documents kill innocent people (or guilty people for that matter). But who gets to make that determination? Who gets to decide whether or not a particular piece of information really is sensitive? It could be that the nature of the information seems innocuous, but when placed in context with other information becomes highly sensitive. Do you trust our brethren at the NY Times or ACLU to take these nuances into account? Nope… they are only interested in how much they can “embarass” the administration. That’s the standard they are using. Look at the language in ACLU Executive Director Romero’s release: “release of the document in this case might be mildly
    embarrassing to the government.”

    He goes on to say uniquivocally that the document poses know threat to national security. How does he know that?

    He doesn’t.

    What he should do is admit that there is a national security risk in releasing the document and that the benefit of protecting individual rights outweighs the national security aspect in this case. He does no such thing.

    He goes on to demonstrate the ACLU’s lack of consideration for national security but trumpeting:

    “the most important news articles of the past year (such as those concerning NSA eavesdropping, rendition
    of foreign prisoners of our nation to other nations, Defense Secretary
    Rumsfeld’s views on the deteriorating situation in Iraq,
    National Security Advisor Hadley’s assessment of Iraqi Prime
    Minister Maliki, and the report on the Iraq insurgency’s funding
    sources) have been based on classified documents leaked to
    reporters, which could not be prepared and published as they have been
    were the government allowed to use subpoenas to confiscate “any and
    all” copies of classified documents it learns are in the hands of
    journalists and other public advocates and critics.”

    Not once does he mention the national security implications of these “important” stories, when every single one of these stories had a significant impact on national security.

  6. Joe Longhorn Says:

    OK… so there are a couple of typos in my previous post. I was going too fast. Sorry.

  7. juvenal_urbino Says:

    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

  8. Joe Longhorn Says:

    That’s a non-sequitur, and you know it.

    Why do I keep coming back?

    I’ve never thought myself much of a masochist.

    We can argue ad nauseum about the net benefit of releasing the information in those articles, but you can’t honestly take the position that they had no effect on national security.

  9. juvenal_urbino Says:

    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.

  10. juvenal_urbino Says:

    Why do I keep coming back?

    Because deep down, in your heart of hearts, you love me, man?

  11. Joe Longhorn Says:

    I probably didn’t clarify it in my post, but my initial question referred to the standard set in New York Times Co. v. U.S., which was referenced by Romero.

    That standard is whether or not the release of the information would cause “grave and irreparable danger.”

    But even if a piece of information doesn’t meet this standard, it still has some effect on national security.

    My point is that even though a piece of information might not meet the threshhold set by the Supreme Court, it could still be detrimental to national security.

    It seems to me that the Media and ACLU want to ignore that little fact.

  12. Joe Longhorn Says:

    Why do I keep coming back?

    Because deep down, in your heart of hearts, you love me, man?

    I love you with the Looovve of the Loooooorrrrdddd.

  13. Unicorn Says:

    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

  14. DeJon Redd Says:

    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.

  15. Joe Longhorn Says:

    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

    Wow. Just wow.

    Dick Cheney and his cronies dictate energy and environmental policy? Words fail me. Last time I checked, oil was a global commodity with several unsavory players affecting the market(i.e. Oil Sheikhs, Hugo Chavez, Russian mafia) yet Cheney and his buddies have the biggest influence?

    The Geneva Convention doesn’t apply to the US? Wasn’t aware of that one. Guess I better get a new ID card since I’m no longer a Geneva Category IV.

    And in reference to GTMO – I agree with you. The inhumane treatment has got to stop. Our military personnel that work inside the camps are treated terribly by the detainees. 😉

    Now I remember why I come back!

  16. juvenal_urbino Says:

    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!

  17. juvenal_urbino Says:

    BTW, good post, unicorn. It provoked intelligent discussion, which is the very definition of a good post, IMHO.

  18. Unicorn Says:

    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.

  19. DeJon Redd Says:

    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.

  20. DeJon Redd Says:

    limfact = limfac, etc, etc…
    Apologies. English is my second language. My native tongue is dum-dum.

  21. Whitney Says:

    DeJon,

    ARGHHHH!!! (Keeping in mind that I, too consider you a dear friend.) I had to get in here again because of they way you seem to be twisting things to hear what you want to hear (sorry, I don’t mean to be harsh, but this is exactly what I feel like you’re doing).

    I didn’t say WHAT is classified isn’t a matter of opinion. Of course it is. It is a human, not objective, nor computerized-algorithmic judgment. And I even see JU’s point that there should be a a different method, perhaps, for deciding what is and is not classified.

    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. THAT is what I was talking about.

    In this case, someone has broken our current laws. If you don’t like them (as they obviously do not even regard them) work to change them. The next Congress may well aim to do so.

    You guys can go on debating who decides what is classified and I will read with interest, but please ask before you assume you know what I mean.

    Also, Dej, you knwo this as well as I do…the Prez does not determine the classified nature of every document. In this case, it is actually an FBI doc and I’m sure a higher-up at FBI placed the “SECRET” notation on it. Regardless, someone with authority, information, and understanding deemed it a national secret, subject to human handling LAWS.

    I’m too tired to go back and fix any mistakes, so you guys forgive me. It’s finals week on top of my “regular” job. I’m almost sorry I even got into this because I really don’t have the time right now. 😦

    I love you all with the Love of the Lord. 🙂 (with hand movements)

  22. DeJon Redd Says:

    Whit, your point is well taken.

    I wish you all the best on finals, and I will now cease and desist all twisting.

    -D-

  23. juvenal_urbino Says:

    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.)

  24. juvenal_urbino Says:

    (Probably because his name is Flynt Leverett.)

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