Wednesday, July 31, 2013

fragile freedom

Contrary to the mythology, the Supreme Court's record of protecting the press is very weak when it comes to reporting military secrets.

  1. Wikileaks, The Guardian and Glenn Greenwald could potentially be prosecuted under the Espionage Act of 1917. Here’s the relevant text of 18 USC § 798 - Disclosure of classified information -- Whoever … publishes, or uses in any manner prejudicial to the safety or interest of the United States or … to the detriment of the United States any classified information … concerning the communication intelligence activities of the United States or any foreign government … Shall be fined under this title or imprisoned not more than ten years, or both....The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients.
  2. The Pentagon Papers case, while a victory against prior restraint of publication, was not a sweeping endorsement of a free press. Indeed, five of the nine justices (Chief Justice Burger and Justices Harlan and Blackmun, who all sided with the government and wanted to block the publication of the Pentagon Papers, plus Justices Stewart and White, who voted against prior restraint) mentioned explicitly that the government could prosecute the newspapers under the Espionage Act after publication. Justice Brennan—normally a friend of a fully free press—was also shaky, writing that our judgments in the present cases may not be taken to indicate the propriety, in the future, of issuing temporary stays and restraining orders to block the publication of material sought to be suppressed by the Government. Similarly, Justice Marshall, another generally progressive force on the court, concurred on very narrow grounds, and seemed to suggest that the government had a strong argument that newspapers could be prosecuted for publishing certain secrets. Only Justices Black and Douglas stood firm against any attempt to muzzle the press. (full text of concurrences and dissents here)
  3. Daniel Ellsberg and fellow defendant Anthony Russo were not acquitted of the Espionage Act charges against them. Rather, the government’s case collapsed into a mistrial after it was revealed that the Watergate plumbers E. Howard Hunt and G. Gordon Liddy had broken into Ellsberg’s psychiatrist’s office seeking salacious stuff to embarrass the leakers.

Our freedom to know what our government is doing in the name of safety and security is, it seems, quite limited. And the ability of whistleblowers to reveal it is incredibly fragile. I am a patriotic American, but all this stuff makes me feel like burning the flag.

Monday, July 22, 2013

inspiration for the fight against stop & frisk

Beat it, I said to him, you cop, you lousy pig, beat it, I detest the flunkies of order and the cockchafers of hope.
-- Aimé Césaire, Notebook of a Return to the Native Land
translated by Clayton Eshleman & Annette Smith

Sunday, July 07, 2013

the shits are killing us...

... even as they kill themselves--each day a few more lies eat into the seed with which we are born, little institutional lies from the print of newspapers, the shock waves of television, and the sentimental cheats of the movie screen. Little lies, but they pipe us toward insanity, as they starve our sense of the real. We have grown up in a world more in decay than the worst of the Roman Empire, a cowardly world chasing after a good time (of which last one can approve) but chasing it without the courage to pay the hard price of full consciousness.

Norman Mailer, 1959

Friday, July 05, 2013

this pusillanimous business

When I was about to graduate journalism school, I gave my professor a giant button that I picked up in Times Square. It said: I smell shit. Is there a journalist in the room? (He was ready for my snottiness and, in return, handed me a framed photo of a patient in a mental institution with a blanket over his head, and said, This is you.)

So can't say I'm surprised to see all the hand-wringing by my colleagues in this pusillanimous business about who or whom is or isn't a journalist.

I guess it has to be said:

Yes, Glenn Greenwald is a journalist. He's a columnist who reports. So was the late Mike McAlary, who broke the story of the police abuse and torture of Abner Louima with a toilet plunger in his Daily News column (“Be afraid, be very afraid if this story is true, and I am afraid it is,” McAlary, normally a staunch supporter of the cops, wrote in the first of his columns on the case. Would that he were around now to blast the NYPD for the insane criminality of doing 600,000 stop-and-frisks a year.)

And, yes, Alexa O'Brien is a journalist. The government may not like her blog posts and may question her methods, but she is reporting, trying to get the word out about a case that the government doesn’t want people to hear about—the court martial of Bradley Manning. Her work may be positional--but that is no different from how the late William Safire operated when he was writing for the Times Op-Ed page. Americans, he wrote in a 2001 blast against the Bush Administration for denying foreign fighters and terrorists the right to a fair trial, "have no need of kangaroo courts to betray our principles of justice."

And wikileaks is a journalistic organization. Whether you like or dislike Julian Assange is not the issue. Rather, ask yourself: in reproducing actual documents, in getting them published by newspapers around the world, how is wikileaks any different from The New York Times when it printed the Pentagon Papers?

Speaking of which, here’s a relevant portion of the eloquent concurrence penned by Justice Hugo Black (and joined by Justice William O. Douglas) in the Pentagon Papers case: The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”