AIPAC ruling a blow to press freedom

by Glenn Greenwald

The Bush administration scored a major victory Thursday in its efforts to criminally prosecute journalists and others involved in the leaking and reporting of classified information. A federal district court in Virginia refused to dismiss a criminal indictment brought by the Bush Justice Department under the Espionage Act of 1917 against two former employees of the American-Israeli Political Action Committee (AIPAC), who are alleged to have received classified information from a former Bush defense department official, and then passed it on to a journalist and an Israeli diplomat. Background on this extremely important case -- and the way in which it is being used by the Bush administration to enhance their ability to prosecute journalists -- can be found here.

In essence, this is the first time the U.S. Government has ever prosecuted anyone under the Espionage Act who was not a government employee and who did not have a security clearance. What is extraordinary about the prosecution is that the defendants are private citizens who merely received and disseminated classified information from a government employee -- something which investigative journalists, by definition, do every day. The Bush administration contended, and the court today ruled, that such conduct can be the basis for being charged with felony violations of the Espionage Act.

The essence of the district court's ruling (.pdf) today is that the Espionage Act authorizes the federal government to prosecute even private citizens (and therefore, presumably, journalists) who knowingly receive and transmit classified information. As the court put it (p. 53): "the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense."

The court additionally ruled that the imperatives of national security outweigh any First Amendment interests which a citizen might have in publicizing such information. As Secrecy News points out, this ruling would almost certainly expose those who revealed Abu Grahib abuses to criminal prosecution. It also strongly bolsters the Bush administration's ability to prosecute journalists involved in the reporting of the NSA warrantless eavesdropping program and the secret, lawless Eastern European prisons revealed late last year by the Washington Post's Dana Priest.

Numerous Bush supporters have called for criminal prosecution of journalists who publish stories containing classified information. And in the case of the NSA eavesdropping story, Bush's Attorney General, Alberto Gonzales, himself recently suggested that journalists could be prosecuted for writing about that program. The Espionage Act has never previously been used to imprison journalists for stories they publish about the government. But it has long been clear that the Bush administration is actively entertaining the idea of putting journalists in jail, and today's ruling provides them with a potent weapon.


Politicizing the terrorist plot

Roughly 12 hours have elapsed since it was disclosed that the British police thwarted an attempt to blow up transcontinental airplanes. Few facts are known about how the plot was uncovered and exactly who was behind it. Nonetheless, supporters of President Bush have wasted no time attempting to exploit this event to make what they evidently perceive are powerful political points in defense of the president and his most controversial policies.

Glenn "Instapundit" Reynolds excitedly points to this terrorist plot and then claims that "some people" -- he does not, of course, say who these "some people" are -- "have decided that the war on terror is passe. But although you may not be interested in terrorism, terrorism is still interested in you." Michael Ledeen in National Review attempts to use this incident to argue that we should confront Iran: "But here was a secret plot we found out about, and we acted. Iran announces its intentions openly, however we don't act."

Also in National Review's Corner, Cliff May quickly seized this plot as a weapon to attack seemingly every political opponent he could think of, from the ACLU and the New York Times to Howard Dean and Ned Lamont. And one popular right-wing blogger who writes anonymously behind the name "Ace of Spades," actually insisted that this event all at once demonstrates the wisdom of warrantless eavesdropping by the National Security Agency, the Patriot Act, Guantánamo military tribunals and torture (only to then casually recant all of that once it was pointed out to him that it was British law enforcement agents, not Americans, who foiled the plot).

The White House is sure to follow suit any minute now, insinuating -- or explicitly claiming -- that this incident proves that Bush was right about the whole array of our country's foreign policy disputes, from Iraq to the current Israel-Lebanon war. This naked exploitation of terrorist threats for political gain occurs every time a new terrorist plot is revealed, no matter how serious or frivolous, no matter how advanced or preliminary, the plot might be. Each time a new plot is disclosed, administration officials and their followers immediately begin squeezing the emotions and fears generated by such events for every last drop of political gain they can manufacture.

But this effort is as incoherent as it is manipulative. Nobody doubts that there are Muslim extremists who would like to commit acts of violence against the U.S. and the West. No political disputes are premised on a conflict over whether terrorism exists or whether it ought to be taken seriously. As a result, events such as this that reveal what everyone already knows -- that there is such a thing as Islamic extremists who want to commit terrorist acts against the U.S. -- do nothing to inform or resolve political debates over the Bush administration's militaristic foreign policy or its radical lawlessness at home.

Opposition to the war in Iraq, for instance, is not based upon the premise that there is no terrorist threat. It is based on the premise that that invasion undermines, rather than strengthens, our campaign to fight terrorism.

Invading and bombing Muslim countries do not prevent terrorism or diminish the likelihood that British-born Muslims will blow up American airplanes. If anything, warmongering in the Middle East exacerbates that risk by radicalizing more and more Muslims and increasing anti-U.S. resentment. And the more military and intelligence resources we are forced to pour into waging wars against countries that have not attacked us, the less able we are to track and combat al-Qaida and the other terrorist groups that actually seek to harm us. There are few things that have more enabled terrorism than turning Iraq into a chaotic caldron of anarchy and violence -- exactly the environment in which al-Qaida thrives.

Nor is opposition to the president's lawbreaking somehow undermined when it is "revealed" that there are terrorists in the world who are trying to attack the U.S. Opposition to warrantless eavesdropping, for instance, is predicated on the fact that a constitutional republic that exists under the rule of law cannot tolerate a president who defies the law at will, and is further based on the indisputable fact that the president is fully able to eavesdrop on terrorists in compliance with the law, i.e., by obtaining warrants. Screeching about terrorist threats as though it justifies such illegal conduct is a complete non sequitur. Nobody opposes surveillance of terrorists.

But Bush followers who exploit terrorist threats for political gain and to gin up support for the president's policies are not pursuing rational arguments. They leap at the chance to manipulate terrorist stories because they want to ratchet up the fear levels, precisely because fear obviates rational analysis and increases the willingness of citizens to cede more power and control to the government, to place more blind faith in political officials in exchange for a feeling of protection.

James Madison, in a 1798 letter to Thomas Jefferson, warned about this manipulative tactic: "Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad." And Alexander Hamilton, in Federalist Paper No. 8, observed: "Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates."

Over the next several days, at least, we will repeatedly hear Bush and his supporters attempting -- implicitly and overtly -- to transform this terrorist plot to into political support for Bush policies. That is a game they have been playing for several years now, and it is what accounts, more than anything else, for their victory in two consecutive national elections. But it is an intellectually dishonest and corrupt ploy, and the collapse of Bush's popularity strongly suggests that Americans have become increasingly immune to being told that they should support the president's extremist policies and overlook his profound failures, all because there are terrorists in the world who want to commit violent acts.