BlogHer - The Patriot Act vs. The First Amendment - Comments

the media

stacyb — Wed, 17 May 2006 15:42:05 -0500

One of the problems is that the Justice Dept. has a clear conflict of interest- when the NSA program was being crafted, then White House counsel Alberto Gonzales ok'd the program and now he is the Attorney General- it's the fox watching the henhouse scenario in living color.

A very notable conservative, Grover Norquist, made a very good point- he is opposed to this sort of governmental intrusion and wondered how his fellow conservatives/GOPers will feel if, say, it was President Hillary Clinton invoking this broad executive power instead of George Bush.

One thing that really interests me as an informal media watcher, is how the media continue to give Bush the benefit of the doubt despite his all-out war on them. No president in modern times has shown this sort of hostility towards a free press. At this point, the only word I can use to describe the mainstream media's relationship with the administration is, "abusive." The admin. continues to abuse them and they keep hoping one day Bush, Rove, Cheney will apologize and tell them how much he/they like them.

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Contributing Editor, Law Blogs
Cafe Politico

When will people wake up?

heivilinj — Wed, 17 May 2006 10:05:23 -0500

"Any society that would give up a little liberty to gain a little security will deserve neither and lose both."
Benjamin Franklin

How can any old (cold war) soldier not feel dismay at the decay of that which (s)he sacrificed a portion of their youth to protect and defend.

Jim Heivilin

More fodder for consideration

Kim Pearson — Wed, 17 May 2006 07:39:07 -0500

Great reporting on this critical issue. Here's more comment on the issue:

1. Rep. Jim McDermott (D-Ill.) recent wrote that "It's the ice-age for the people's right to know."

2. One dimension of this controversy is the roadblocks being thrown up to deter investigations by the proper authorities. A Justice Department inquiry into NSA warrantless surveillance was recently abandoned because the NSA refused to divulge information, citing national security reasons.

3. Because of the kind of intimidation of reporters and attorneys by the Bush administration, Nat Hentoff says that we may have to depend on the Europeans to get at the truth about the CIA's secret prisons.

4. The problem isn't just with finding out the truth about our present situation -- it's also about finding out the truth of our past. For the last several of years, scholars have been alarmed by the degree to which previously-public material is being reclassified by the National Archives. Federal records laws have been tightened to make it more difficult to get access to presidential papers -- that has already placed important records from the Reagan administration off limits. If you have a subscription to the Chronicle of Higher Education, you can read a good recap of the problem.

If we care about being a free people, we have to be eternally vigilant, as a noted conservative once said.

Professor Kim
BlogHer Contributing Editor, Law and Journalism/Media

Frightening

Mary Tsao — Wed, 17 May 2006 01:06:29 -0500

Thanks for this write-up. It's a chilling portrait of the reality of life under this administration, and it truly disturbs me.

Mary
BlogHer Contributing Editor, Mommy & Family
Mom Writes

The Patriot Act vs. The First Amendment

stacyb — Tue, 16 May 2006 09:52:14 -0500

And who is winning? The Patriot Act by a wide margin.

As everyone by now knows, our National Security Agency (NSA) has been taking part in spying activities without warrants and which tend to cast a much larger net than the Bush administration originally acknowledged. The Bush administration refers to the program as "The Terrorist Surveillance Program" but the problem, legally at least, is that millions of Americans with no known or suspected ties to terrorism have been caught up in the governments vast data mining operation by using private companies like AT&T, Bell South etc. to listen in on private phone calls en masse.

A lawsuit challenging the government's actions is pending in federal court but a new revelation has the media, legal experts and the blogosphere buzzing- the fact that the CIA and FBI are spying on reporters at ABC, The New York Times, The Washington Post (to name a few media outlets). And this brings us face to face with a showdown between the Patriot Act and the First Amendment.

ABC news, which has found itself right smack in the middle of the controversy, reports:

"It used to be very hard and complicated to do this, but it no longer is in the Bush administration," said a senior federal official.

The acknowledgement followed our blotter item that ABC News reporters had been warned by a federal source that the government knew who we were calling.

[snip]

Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).
The NSLs are a version of an administrative subpoena and are not signed by a judge.

First Amendment protections for journalists have been essential to any reasonable notion of a "free press" but suddenly the media finds itself in the cross-hairs of an extensive government effort to not only monitor press activity but to prosecute members of the media believed to have received confidential information on illegal government activity.

While courts have generally allowed expanded governmental authority for reasons of national security, the blog Dees Diversion points to something which should give the judicial branch pause, even after 9/11:

The ABC report claims that the CIA was upset by the network's reporting on secret prisons in Romania and Poland, and by reports that revealed the use of predator missiles inside Pakistan.

Problematic? Yes, very. Spying on people with real or perceived ties to terrorist activities is one thing, but violating the privacy rights of those who are believed to be critical of the government, are two very different issues altogether.

Generally, the Fourth Amendment requires that the government obtain warrants for such activity- something the Bush administration considers little more than a quaint legal "technicality." The warrant requirement helps ensure that the government has some reasonable basis (or "probable cause") for believing that their incursion into a person or organizations privacy rights is justified. Without a warrant, no such safeguards are present. And as most first year law students know, when a federal law (like the PATRIOT Act) comes up against the US Constitution, the Constitution wins. At least that was the way it used to be.

The way around that? To proclaim a broad executive branch authority as justification for brushing aside such quaint consitutional relics of a bygone era (ie. the Fourth Amendment prohibition against unreasonable searches and seizures):

Consistent with its desperate desire to avoid any judicial adjudication of the legality of its conduct, the Bush administration has once again invoked the "state secrets" doctrine, this time #"to attempt to force dismissal of the lawsuit against AT&T brought by the Electronic Frontier Foundation. That lawsuit alleges that AT&T violated various provisions in the law by collaborating with the NSA to allow the agency access to the telephone conversations and releated calling data of Americans without the warrants required by law.

As always, what the Bush administration fears most are judicial rulings as to whether its extremist policies are legal, precisely because it knows they aren't. In this case, it's the warrantless surveillance program they are attempting to shield from judicial adjudication, but they have played the same game with a whole host of other lawbreaking measures. It is precisely because they have thwarted any investigation into their conduct and any judicial review of it that it is so imperative that there be some mechanism for subjecting their behavior to meaningful scrutiny. Having Democrats obtain subpoena power in November is one to achieve that (h/t EJ in comments for both new items).

Lest one think this is a purely partisan issue, think again. Conservative legal watch-dog groups like Judicial Watch are deeply concerned with the ever-expanding police powers of the federal government.

And legal blogger Christy Hardin Smith (and Jane Hamsher)over at Firedoglake don't mince words about the program and [what they believe are]the reasons for it:

But for the Bush Administration, which is clearly willing to go to any lengths to spy on its critics and suppress and intimidate people who might be willing to come forward as a whistleblower...

now that the media has been specifically targeted, do you think they might report more aggressively on domestic spying without a warrant? And, if so, do you think the Bushies can spell "backfire?"

Whether the media will directly challenge the governments actions on First Amendment grounds remains to be seen, but I am not sure how they could justify NOT doing so lest their ability to their job as reporters becomes severely hampered by fear of governmental prosecution under PATRIOT.