Slate has two recent articles that illustrate a growing fear of facts. The first looks at the Republican party generally and Mitt Romney specifically.
It’s tough times for facts in America. First Mitt Romney—interviewing for the position of president—declined to release his tax returns because, as he explained, the Obama team’s opposition research will “pick over it” and “distort and lie about them.” He isn’t actually claiming that his opponents will lie. He’s claiming he’s entitled to hide the truth because it could be used against him. As Jon Stewart put it, “You can’t release your returns, because if you do, the Democrats will be mean to you.” These are tax returns. Factual documents. No different than, say, a birth certificate. But the GOP’s argument that inconvenient facts can be withheld from public scrutiny simply because they can be used for mean purposes is a radical idea in a democracy. It has something of a legal pedigree as well.
Probably not coincidentally, last week Senate Republicans filibustered the DISCLOSE Act—a piece of legislation many of them once supported—again on the grounds that Democrats might someday use ugly facts against conservatives. The principal objection to the law is that nasty Democrats would like to know who big secret donors are in order to harass, boycott, and intimidate them. The law requires that unions, corporations, and nonprofit organizations report campaign-related spending over $10,000 within 24 hours, and to name donors who give more than $10,000 for political purposes. Even though eight of the nine justices considering McCain-Feingold in Citizens United believed that disclosure is integral to a functioning democracy, the idea that facts about donors are dangerous things is about the only argument Senate Republicans can muster. Last week even Justice Antonin Scalia told CNN’s Piers Morgan that “Thomas Jefferson would have said the more speech, the better. That’s what the First Amendment is all about. So long as the people know where the speech is coming from.”
That’s a ringing defense of the need for disclosure, which Scalia has always supported.
Not to be outdone, the State Department just won a case about the secrecy behind the diplomatic cables Wikileaks released in 2010 and 2011.
The government, it appears, would like to pretend that never happened even though anyone who cared has taken a look, and their contents have been reported around the world. If you want to double check that they’re out in the public, you can do so here.
Back to Slate:
It sounds like something from Catch-22. A U.S. district court judge on Monday ruled that diplomatic cables published worldwide by WikiLeaks, the New York Times, the Guardian, et al., are actually still secret. Why? Because the government says they are secret…
…The government’s logic, and the judge’s, is—and I do not think I am exaggerating or distorting their arguments here—that just because something is public doesn’t mean it isn’t also secret. In this case, the cables are secret because they contain information that could be harmful if released. Never mind that they’ve already been released by WikiLeaks. They still could be harmful if released by the government.
The ruling seems to uphold a broader U.S. government philosophy that even when everyone knows the government is doing something—conducting drone strikes in Yemen, waterboarding prisoners in Guantanamo—the government can continue to pretend that it is not doing it, and the courts will back it up.
Related: See Glenn Greenwald’s article in today’s Salon about Dianne Fienstein, California Democrat and Chair of the Senate Intelligence Committee, and her continued calls to prosecute those disclosing sensitive government information (eg. drone wars). In it he writes about how government is defining what is a permissible leak and who permissible leakers are (spoiler alert: themselves).
“In sum,” Greenwald writes, “leaks of classified information are a heinous crime when done to embarrass or undermine those in power, but are noble and necessary when done to bolster them.”
This is an important victory for the First Amendment, and for the freedom of the press in the United States. Some people don’t seem to understand the connection between the ability of journalists to protect their confidential sources and a free press. But if whistleblowers in government, in corporations, and elsewhere in society can be hounded and persecuted, and if the Justice Department is able to use its power to turn reporters into informants, then investigative journalism in America will surely wither and die. The First Amendment will have lost its meaning.
Email from the New York Times’ James Risen to Salon’s Glenn Greenwald.
On Friday, a judge ruled that Risen would not have to testify about the identity of a source during the trial of Jeffrey Sterling, a former CIA official.
Sterling was arrested in January and is accused of leaking classified information to Risen.
Glenn Greenwald, Salon. Obama’s whistleblower war suffers two defeats.
I take very seriously my obligations as a journalist when reporting about matters that may be classified or may implicate national security concerns. I do not always publish all information that I have, even if it is newsworthy and true. If I believe that the publication of the information would cause real harm to our national security, I will not publish a piece. I have found, however, that all too frequently, the government claims that publication of certain information will harm national security, when in reality, the government’s real concern is about covering up its own wrongdoing or avoiding embarrassment…
…Any testimony I were to provide to the Government would compromise to a significant degree my ability to continue reporting as well as the ability of other journalists to do so. This is particularly true in my current line of work covering stories relating to national security, intelligence and terrorism. If I aided the Government in its effort to prosecute my confidential source(s) for providing information to me under terms of confidentiality, I would inevitably be compromising my own ability to gather news in the future. I also believe that I would be impeding all other reporters’ ability to gather and report the news in the future.
When President Barack Obama took office, in 2009, he championed the cause of government transparency, and spoke admiringly of whistle-blowers, whom he described as “often the best source of information about waste, fraud, and abuse in government.” But the Obama Administration has pursued leak prosecutions with a surprising relentlessness. Including the Drake case, it has been using the Espionage Act to press criminal charges in five alleged instances of national-security leaks—more such prosecutions than have occurred in all previous Administrations combined. The Drake case is one of two that Obama’s Justice Department has carried over from the Bush years.
Gabriel Schoenfeld, a conservative political scientist at the Hudson Institute, who, in his book “Necessary Secrets” (2010), argues for more stringent protection of classified information, says, “Ironically, Obama has presided over the most draconian crackdown on leaks in our history—even more so than Nixon.