Saturday, December 16, 2006

Four Affairs

Courtesy of, a glimpse of what the New York Times has to say concerning a new and creative use of subpoena power:

A Gag on Free SpeechThe New York Times | Editorial
Friday 15 December 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...

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....

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... 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....

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."...

And here at ThinkProgress, in fact, is an example of prior restraint standing forth in full regalia. The White House has decided that it, not the CI A, will decide what's classified and what's not, and according to author whose ox has been gored, it's classified or not depending on what someone intends to say about it.

EXCLUSIVE: White House Forbids Publication Of Op-Ed On Iran By Former Bush Official

Middle East analyst Flynt Leverett, who served under President Bush on the National Security Council and is now a fellow at the New America Foundation, revealed today that the White House has been blocking the publication of an op-ed he wrote for the New York Times. The column is critical of the administration’s refusal to engage Iran.

Leverett’s op-ed has already been cleared by the CIA, where he was a senior analyst. Leverett explained, “I’ve been doing this for three and a half years since leaving government, and I’ve never had to go to the White House to get clearance for something that I was publishing as long as the CIA said, ‘Yeah, you’re not putting classified information.’”

...Leverett says the incident shows “just how low people like Elliot Abrams at the NSC [National Security Council] will stoop to try and limit the dissemination of arguments critical of the administration’s policy.”...

Elsewhere, 40 "mostly middle-aged" women were tried for a variety of offenses after being caught in a reportedly "threatening" activity, namely, trying to deliver a petition while laughing, singing, wearing pink and being "clearly happy," Lord forbid!

Again thanks to truthout :

Peace Women, Convicted of Trespassing, Teach the US Government a Lesson in Diplomacy
By Medea Benjamin
t r u t h o u t | Guest Contributor
Thursday 14 December 2006

It must sound absurd, perhaps even unbelievable, that four peace women were arrested and put on trial for attempting to deliver a peace petition to the US Mission to the United Nations....

On March 6, 2006, CODEPINK organized a group of about 40 women, including a delegation from Iraq, and held a press conference in front of the United Nations, in New York City, to call for an end to the war in Iraq and commemorate International Women's Day. The group then marched a few blocks to the US Mission to deliver a petition signed by 72,000 women from around the world.

The previous year...CODEPINK had delivered a similar petition without incident...This year, to our surprise and horror, we found the building had been locked up to keep us out and we were surrounded by armed police and security guards. After an hour of urging them to either let a small group inside or have someone come down to "just accept the damn piece of paper," the four women representatives... were handcuffed and dragged to a police wagon...We were charged with trespassing, two counts of disorderly conduct, resisting arrest, and obstructing government administration.

Nine months later, the trial of the "CODEPINK Four" started in the Manhattan Criminal Court and dragged on for over a week...

The head of communications for the US Mission, Richard Grenell, was the most absurd of the witnesses. While a videotape we introduced as evidence showed a group of about 40 mostly middle-aged women strolling toward the Mission singing Give Peace a Chance, Mr. Grenell testified that he found the group threatening because "they were wearing pink, they were laughing and they were clearly happy."...

...The jury acquitted us of the more serious misdemeanor charges and found us guilty of trespassing, a violation akin to a parking ticket. After paying a $95 court fee, we were free....

So as soon as the court adjourned, we immediately returned to the same US Mission to deliver the same petition....

This time,without difficulty.

And at the same time, centralized information control clamps down at the U.S. Geological Survey. As the AP story points out, this is part of a well-established trend.

WASHINGTON - The Bush administration is clamping down on scientists at the U.S. Geological Survey, the latest agency subjected to controls on research that might go against official policy.

New rules require screening of all facts and interpretations by agency scientists who study everything from caribou mating to global warming. The rules apply to all scientific papers and other public documents, even minor reports or prepared talks, according to documents obtained by The Associated Press...

"This is not about stifling or suppressing our science, or politicizing our science in any way," Barbara Wainman, the agency's communications director, said Wednesday. "What it was designed to do is to improve our product flow."...

"...I worry that it borders on censorship," said Jim Estes, an internationally recognized marine biologist in the USGS field station at Santa Cruz, Calif.

...From now on, USGS supervisors will demand to see the comments of outside peer reviewers' as well any exchanges between the scientists who are seeking to publish their findings and the reviewers.

Of course, there is something to be said for not blindsiding top officials of your organization with shocking new findings; but as one who has been there, in this era this kind of thing has proved to be about more than coordination -- it's about top-down message control, no matter how slickly worded the rationalization.

In the context of everything else that is going on, it's reasonable to interpret this as another case of publicly funded research and information being converted to the private property of the party in power -- to use or suppress as they see fit, for political gain.

Thursday, December 07, 2006

A Shot Over the First Amendment's Bow

The commotion has already died down concerning last month's shot over the First Amendment bow by Newt Gingrich, former speaker of the U.S House of Representatives. There was a great deal of commentary on the Web, but next to no news coverage beyond the Union Leader, which had the original story. This suggests it is not being taken seriously; but it should be taken as seriously as any potential risk to our Constitution and way of life.

Indicator 1: What a forum for it! An event specifically dedicated to the First Amendment, at which a newspaper, in fact, was honored for setting public service ahead of advertising revenues. If that is not a shot over the bow, what is?

Indictor 2: Possible signs of an echo chamber at work.

Example 1: A few days before the Gingrich remarks, I happened to attend a specialized legal forum where one attorney, well known in his industry, opined that "The First Amendment may well be a bad idea." This is not on the Web; but I do have it on tape. The context was in light of the personal pain that news coverage sometimes causes individuals who find themselves in the news.

Example 2: A few days ago, a similar idea cropped up in an exchange on a liberal "humor" blog that I see see occasionally, . The proprietor of this site enjoys taking on reactionary types who send him email. I take the liberty of quoting the full exchange; the incoming email is in bold italic, and Bartcop's rsponses in plain italic. I "bleeped" the profanity, as I don't want it on my blog.

Subject: [U] Scumbag
Classification: UNCLASSIFIED
Yeah I got a comment for you mother f****r.

I always like hearing from my fans in the military.

You don't like how Mr. Bush is running things, to bad. He is the boss.

It's my understanding that you have to say that, since you're on active duty. When will you be free to express thoughts of your own?

Its reasons like you that I don't believe the U.S. should have freedom of speech amendments.

You're a soldier who don't believe in the US Constitution?
Isn't that like a nun who doesn't believe in God?
The Military oath is just once sentence and it includes the words:
"I will support and defend
the Constitution of the United States
against all enemies, foreign and domestic..."
When you took that oath, were your fingers crossed?

OK, so we have a similar meme that the First Amendment is illegitimate coming from three very different sources within a short period. Three data points are not definitive, but it's something to keep an eye on.

Here are extracts from the original article on the Gingrich speech, and from a followup run by the same newsaper:

Union Leader Staff
Tuesday, Nov. 28, 2006

MANCHESTER – Former Speaker of the House Newt Gingrich yesterday said the country will be forced to reexamine freedom of speech to meet the threat of terrorism
Gingrich...said a "different set of rules" may be needed to reduce terrorists' ability to use the Internet and free speech to recruit and get out their message.

"We need to get ahead of the curve before we actually lose a city, which I think could happen in the next decade," said Gingrich...

Gingrich spoke... last night at the annual Nackey S. Loeb First Amendment award dinner, which fetes people and organizations that stand up for freedom of speech.

...The Citizen of Laconia was given the Nackey S. Loeb First Amendment Award, which is named after the longtime President and Publisher of the Union Leader Corporation, owner of New Hampshire's statewide newspaper.

The Citizen scrutinized the Newfound Area School Board beginning last year over a series of e-mail discussions held before public meetings. It also used the right-to-know law to uncover costly decisions by the town of Tilton this year.

Executive Editor John Howe said the decision to pursue the stories led to at least one advertiser canceling its business with the paper.

"We try to practice what we preach, even if it costs us business," Howe said...

On the other side, Gingrich also reportedly had some things to say about ways the country could further promote free expression -- specifically, by getting rid of campaign finance restrictions and breaking down the wall between church and state.

The followup article elaborates, based on a speech text posted on Gingrich's website:

Gingrich suggested that country should "look seriously at a level of supervision that we would never dream of if it weren't for the scale of threats....

"This is a serious problem that will lead to a serious debate about the First Amendment, but I think that the national security so real that we need to proactively, now, develop the appropriate rules of engagement.....

"This is a sober topic, but I think it is a topic we need a national dialogue about, and we need to get ahead of the curve..."

Gingrich yesterday elaborated:

Union Leader December 6 2006
Newt Gingrich

... free speech should not be an acceptable cover for people who are planning to kill other people...

...The fact is not all speech is permitted under the Constitution. The 1st Amendment does not protect lewd and libelous speech, and it should not -- and cannot in 2006 -- be used as a shield for murderers.
...We need a serious dialogue...about the 1st Amendment, what it protects and what it should not protect. Here are a few baseline principles to consider:

We should be allowed to close down Web sites that recruit suicide bombers and provide instructions to indiscriminately kill civilians by suicide or other means, or advocate killing people from the West or the destruction of Western civilization;

Wait a minute here...only people from the West? And "Western civilization"?

We should propose a...convention for fighting terrorism that makes very clear that those who would fight outside the rules of law, those who would use weapons of mass destruction and those who would target civilians are in fact subject to a totally different set of rules...

Those who use weapons of mass destruction? Like government officials, among others?

...this convention should define the international rules of engagement on what activities will not be protected by free speech claims; and

We need an expeditious review of current domestic law to see what changes can be made within the protections of the 1st Amendment to ensure that free speech protection claims are not used to protect the advocacy of terrorism, violent conduct or the killing of innocents.

As Gingrich points out, there can be and are already rules within the First Amendment to protect against specific abuses of free speech, so why attack the First Amendment? Moreover, such high-sounding intentions too easily devolve into suppression of speech with which the authorities disagree.

For the sake of personal libery, Americans have always assumed a certain amount of personal risk, from the Founders -- who risked hanging for treason -- on down.

Or to repeat, with apologies to Partick Henry, "Is life so dear, and security so sweet, as to be purchased at the price of chains and slavery?"

Or in a homelier vein -- if your roof is leaking, it does not follow that you need to tear down the house.

"Eternal vigilance is the price of liberty," and here's another case to keep an eye on.

Friday, December 01, 2006

Blog Redux

This blog started back in 2004, but after a short while, I found it was too much to keep up, together with my other work, and retired it. I was also a little unofocused at the time on exactly what I wanted the blog to be.

It's easier to manage now, thanks to experience and better computer equipment, and the subject is equally important today. The focus is on bringing to one location current news specifically relating to this phrase in the First Amendment: freedom of speech, or of the press.

Up front, I have a P.O.V. on the subject of free expression, I've always had it, now and before, when I used to work in the civil service, and before that when I was a schoolteacher:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This is the bedrock of self-government; without it, there would be, in a vitally important sense, no "America" to defend.

With apologies to Ben Franklin:

Those who would give up essential Liberty, to purchase a little temporary Safety, will find that they have neither Liberty nor Safety.

With apologies to Patrick Henry:

Is life so dear, or security so sweet, as to be purchased at the price of chains and slavery?

And finally, a text that many recognize, but may not know is required of all entering federal government employees, or at least used to be: solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

A couple of things about this. One, it doesn't bear a termination date. It doesn't say, "Until I return to a job in private industry, or retire, or go out on disability."

The other thing is this: it is a pledge to defend the Constitution. Not the present policy. Not even the homeland. The Constitution. That is the basis of America, and as long as the Constitution remains vital, America survives.