One would think that the American press, of all institutions, would be on the front lines of the battle to protect the Constitution and the Bill of Rights against the Bush administration, which has become a law unto itself. It has given us close to an imperial presidency, countenancing torture, extreme rendition, internal spying, outrageous claims of executive privilege, signing statements to bypass the law, and unprecedented secrecy that impedes a free press. Indeed we cannot be sure that reporters and editors have not been the subjects of illegal surveillance.
Certainly many reporters have given us good, substantial stories about the administration’s behavior. Books and magazine pieces have reported all sides of this aberration of a presidency. Columnists and editorials have weighed in on the administration’s usurpation of power. Even right-wing apologists have had to at least report on some of the administration’s assaults on the American system of justice. But so far the administration has rejected any restraints, the problem remains ambiguous among many voters and most members of Congress are inert, the Republicans standing by the president, Democrats afraid to be seen as soft on terrorism. And in too many instances, the major newspapers merely shrug at the latest outrage.
Here is a case in point: Have you heard of the States Secrets Protection Act? It’s not surprising if you don’t know what it is. There’s been almost nothing reported about it in the mainstream press. (Here’s the almost sole exception from the Associated Press.) I didn’t know about it until I was alerted to it by a friend, a former magazine editor who has kept an eye on what he calls “the imperial presidency.” Briefly, it was introduced early this year by Democrat. Ted Kennedy and Republican Arlen Specter, and if became law, it would be a small step in pulling back the administration’s curtain of secrecy and illegality.
Under current law, which the Supreme Court recently upheld, a person unlawfully imprisoned and even tortured can in some cases not be able to sue because of the “state secrets privilege,” which permits the administration to withhold evidence that the plaintiff needs to make his case, on the grounds that it is a state secret. Judges routinely dismiss cases when the privilege is invoked.
Thus, in one prominent case, Maher Arar, a Syrian-born Canadian who was detained as a suspected terrorist while waiting for a plane in New York, was sent by rendition to Syria, where he was tortured for nearly a year. It was a mistake, and Canada apologized and compensated him. But he was denied the right to sue in the U.S. Courts by the state secrets privilege, which the administration invoked.
The Kennedy-Specter bill, which was reported out of the Senate Judiciary Committee in April and is scheduled for hearings before a House Judiciary subcommittee, would provide (as in criminal cases) that a judge review the evidence and decide whether a plaintiff can see and use it. At the moment, however, no one can see behind The Decider’s curtain, not even, say, a reporter, who may have been spied upon or placed on a terrorist watch list. Even suits to unearth legitimate information may be blocked. But the bill is languishing in the senate, possibly because most Republicans oppose it and no one is pushing it.
The New York Times and Washington Post editorialized for the bill’s passage. The Los Angeles Times ran an op-ed in its favor. But if the organizations of journalism cared about the civil liberties and openness that make reporters’ work meaningful, they could lend a hand in getting such legislation passed.
So I have a question: Why would it compromise honest, accurate reporting if the press as an institution made an effort to protect its ability and its moral obligation to probe for truth? The administration’s high-handed secrecy and deceptions have made life miserable for good Washington reporters. At the moment, groups like the American Civil Liberties Union, the Electronic Frontier Foundation, some news organizations, and individual attorneys have gone to court against the administration to argue for a Freedom of Information request or on behalf of a victim of this administration’s lawlessness. And the press sometimes reports on these efforts, as if quoting the ACLU is reporting enough.
But would it be wrong if, on these issues of Constitutionally protected civil liberties like the FISA bill and the state secrets bill, Congress and the administration heard from say, the Society of Professional Journalists, the Nieman Foundation, the White House Correspondents Association, or the American Newspaper Publishers Association? If these groups and media executives can lobby for a shield law, or against a postage rate increase, why not take on issues that mean more, even life or death, to the future of a free press?
I remember the power the press demonstrated during Watergate and the Pentagon Papers affair, when editors and publishers put themselves on the line and spoke to the president and the courts in support of their reporters — say, when it was discovered that the White House had an “enemies list,” which included me. Now, if there is something like an enemies list or a watch list, the state secrets privilege could prevent the press from knowing about it.