Individual liberties

by Jeremy Leaming

Some legal scholars and defenders of the indefinite war on terror are coming, mostly with strained arguments, to the defense of the Obama administration’s abuse of freedom of speech. The First Amendment’s speech clause includes protection for a free press, a fairly fundamental way people communicate.

But the Obama administration, which has carried on some of the Bush administration’s counterterrorism tactics, and escalated others, such as the drone war, is obsessed with going after public officials and others suspected of leaking important details of counterterrorism activities and other national security concerns.

The Department of Justice has trolled the phone records of Associated Press reporters in a leak investigation of the AP’s coverage of a foiled terrorist plot in Yemen, and spied on the work of Fox News correspondent James Rosen, in another leak case involving a 2009 story about North Korea’s announcement of launching a nuclear missile. The Washington Post reported that the DOJ “used a security badge to access records to track the reporter’s comings and goings from the State Department… and “traced the timing of his calls with a State Department security adviser suspected of sharing the classified report.” The DOJ, The Post continues, obtained a search warrant for Rosen’s personal e-mails. The DOJ didn’t stop there. It’s arguing that Rosen may have been a co-conspirator in the leak. So now you have the federal government using the Espionage Act to go after alleged leakers, and a journalist, whose job partly entails keeping the public informed about its government.

Gabe Rottman for the ACLU’s Blog of Rights says “never before has the government argued that newsgathering – in this case, asking a source to provide sensitive information – is itself illegal. That would, quite literally, make virtually any question by a reporter implicating classified information a potential felony.”

Last week, when taking questions about his administration’s leak investigation involving secretly culling AP phone records, Obama said no apologies were necessary and provided a tired defense of his administration’s obsession with investigating and prosecuting leaks. Essentially Obama said trust the executive branch and leakers are bad.

But as noted here before war, as George Orwell once wrote has the effect of not meshing terribly well with individual liberties. In Homage to Catalonia about the Spanish Civil War, Orwell wrote, “The fact is that every war suffers a kind of progressive degradation with every month that it continues, because such things as individual liberty and a truthful press are simply not compatible with military efficiency.”

by Jeremy Leaming

Like his predecessor President Obama has embraced an aggressive, mostly secret and, at times, constitutionally suspect approach to waging a never-ending war on terror.

Unlike its predecessor, the Obama administration has obsessively investigated leaks of information surrounding some of its counterterrorism efforts. The administration has launched at least six cases of alleged leaks, including one involving a foiled terrorist plot in Yemen that The Associated Press reported on last spring. As part of that investigation the Department of Justice secretly gathered and culled through phone records of AP reporters.

Going on the information we have now it appears that the First Amendment, which protects freedom of speech including press from government interference, was too easily shunted aside in an over-the-top investigation of a leak. The AP was given no chance to challenge a government search of its phone records and have a judge decide whether national security interests trumped freedom of speech in this instance. Yes, Attorney General Eric Holder claims the leak was one of the most egregious he has seen in a long, long time. But he doesn’t explain how it was so terribly egregious, nor do the facts as we know them now support his sweeping assertion.

And today, during a press conference, President Obama hardly appeared fazed by the criticism of the DOJ’s tactics, decrying leaks of counterterrorism efforts. “Leaks related to national security can put people at risk, they can put men and women in uniform that I’ve sent into the battlefield at risk,” he said.

But the May 7, 2012 reporting by the AP, had, according to its president, Gary Pruitt, been held until the White House assured the AP that “national security concerns" were no longer an issue. Pruitt added, “Indeed the White House was preparing to publicly announce that the bomb plot had been foiled.”  

Earlier this week The New York Times Editorial Board hammered the administration for its “zeal” for going after persons accused of leaking national security information. In the AP matter, The Times Editorial Board said the administration had offered no “credible justification for secretly combing through the phone records of reporters and editors at The Associated Press in what looks like a fishing expedition for sources and an effort to frighten off whistle-blowers.”

It’s rather lame to argue that just because Republicans howled loudly over the AP coverage of the foiled terrorist plot in Yemen that the DOJ’s obnoxious action of spying on the AP was somewhat mitigated. Moreover, it’s not like this administration has needed prodding to aggressively and obsessively go after alleged leakers.