Category Justice

Why seizing journalists’ records is the last option, not the first

Pat Ryan 1 Comment

The latest revelations about the Obama Administration overstepping its moral authority, if not entirely its legal one, in dealing with enemies both real and perceived have left me melancholy.  At best.  While I am buoyed to see that the concept of using the IRS as a blunt instrument  to punish one’s political opponents seems to have won near-unanimous disapproval, the idea that the government shouldn’t be investigating reporters seems not to be getting quite so much support, at least not outside of journalism.

This government is out of bounds—and out of its mind—if it believes that treating journalists as suspected criminals is legally or morally the right way to go.  A government led by a former professor of constitutional law should know better, even if that government has prosecuted more alleged leakers than any previous one.  The things we’re learning about, or which have been alleged, in just a matter of a few days, are stupefying: not just secretly seizing reporters’ phone records and examining their emails, but treating the reporter as though he were a criminal suspect and investigating his associates—even looking at the reporter’s parents’ phone records!

(Look here for links to a number of good stories, editorials and op/eds on government overreach of authority, the attack on civil liberties, and uncomplimentary comparisons to the administrations of George W. Bush and Richard Nixon.  Look here for a first-hand account of the “Kafkaesque” experience of a reporter who had his phone records secretly seized by two government agencies more than 20 years ago.)

Government has a right to protect its secrets; and yes, I think there are circumstances in which government should properly keep information from general distribution.  But unless the information is (1) critical to preserving public safety and security and (2) cannot be obtained in any other way, the government should not be allowed to try to compel journalists to turn over unpublished research or provide testimony or rat out their associates, because that turns those reporters into de facto government investigators and will make people with stories to leak and asses to protect choose their asses over the story. Seizing journalists’ records or compelling testimony is the last option, not the first one, and it’s up a court to decide that, on a case by case basis.

I don’t think journalists have a legal “right” to protect sources; others disagree.  I think they must protect sources if they hope to be effective at their job, but I don’t think the law shields them from any and every effort by the government to uncover information.  (Unless there’s a shield law.)  And I think journalists should be prepared to pay the price under law when they choose to protect their sources, as a good journalist should, while simultaneously refusing to comply with a lawful court order, as a good citizen should.

Yes, Sarah Palin, it’s possible to be a good journalist and a good citizen.  All good citizens are not good journalists, but all good journalists are good citizens when they fulfill a critical role in the functioning of a free society: to tell citizens those things that people in power don’t want us to know; to inform us of what is being done in our name and on our behalf.

I’m not making a case for the purveyors of “news you can use”—things like consumer news, what’s trending on social media, breathless reports on developments on a TV network’s prime time entertainment program as if it was the explosion of the Hindenburg (yes, I’m talking to you, KTRK-TV in Houston); that’s the sissified bullshit kind of “news” we get from outlets that sold their souls when they bought the line of crap peddled by non-journalist consultants whose only real goal is increased profitability.  (I’m not opposed to profit, by the way—I’d like to have been better at it myself—but I am opposed to those organizations for which profit is the only or primary reason for being, and to the people who see journalism as just another product to sell like cook pans or bicycles or bird seed.)

I mean to make the case for the journalism that is there to confront those in power, one citizen to another, and to tell the rest of us what’s going on with the people we’ve authorized to spend our money and operate our governments, from Washington, D.C. to the state capitols and from counties and cities to utility districts and homeowner’s associations.  I mean the journalism that is envisioned in the First Amendment to the U.S. Constitution when it guarantees us the right to a free press right alongside the freedom of religion and freedom of speech and freedom of peaceable assembly and redress of grievances.

How well do American journalists do in living up to that standard?  Each according to his talents, like the rest of us.  The ones Don Henley sang about a generation ago are still around and (still) aren’t even trying, but the ones who are trying to do the job the right way for the right reasons deserve our respect and the respect of our government, regardless of who is president at the moment.

Maybe the guy in the tin foil hat was right

Pat Ryan 2 Comments

We should all be in line to take a whack at the idiots responsible for these completely avoidable exercises in governmental overreach and hubris.  All together now: what the hell were they thinking?  I can’t decide which is more disturbing: the government using its power to harass and tacitly threaten law-abiding citizens based on a perception of their political views, or the government using its power to harass and tacitly threaten journalists in the pursuit of their constitutionally-recognized role as government watchdog.  Both are abuses of government power that fly in the face of what this country is meant to stand for.

Today the attorney general ordered the FBI to investigate the Internal Revenue Service for apparently singling out for enhanced scrutiny the applications for tax-exempt status from what were perceived to be conservative political groups.  Yep, it looks like the party in power has been using the authority of the taxman to reward those with whom it agrees and punish those with whom it does not.  Is there any more textbook definition of abuse of power than that?

I’m not saying that the IRS shouldn’t be thorough in reviewing applications for tax-exempt status; the IRS should be exceedingly thorough in investigating such requests.  Wouldn’t we all be willing to believe there are those among us who would do whatever they could to reduce their tax bills, even lie about the true purpose of their organization?  There are entire political movements built on the effort to reduce taxes, but that doesn’t mean they deserve extra scrutiny.  Whatever’s determined to be the proper amount of review for gaining tax-exempt status should the bar for everyone to pass, and it’s just flat wrong for an arm of the government to single out persons or groups for extra scrutiny based on their actual or perceived political views, including their views about taxes!  (Is this a great country or what?)  The whole idea has conjured up in my imagination that happy visage of Richard Nixon and enemies lists.

It’s just as wrong, and just as dangerous to our liberty, for the Justice Department to seize phone records of journalists.  The DOJ notified The Associated Press last week that at some point earlier this year, and clearly without prior notice, it had seized records for 20 phone lines belonging to AP offices and journalists, including home phones and cell phones.  It did not state a reason why these records were seized; it’s believed to be in relation to an investigation into leaks about how the CIA disrupted a terrorist plot to bomb an airliner.

Our system envisions a strong press as a watchdog on government at all levels, acting as a representative of the people seeking out information that the government wants kept quiet…the stuff that the politicians and the bureaucrats don’t want you to know, that they’ve kept from you out of embarrassment or guilt.  There have been people in the government from the beginning who understood the importance of that role to the overall functioning of society, and who’ve provided sensitive information to reporters despite being told not to do so.  Today we call those people whistleblowers.  When that whistle gets blown the government’s first response is often to decide who will take the blame, and they devote a terrific amount of energy to learning who told the truth.  In some cases they ask a court to order the journalists who ran the story to tell where they got their information; in others, like this one, they just take private information without the knowledge of its owner in the hopes that they’ll be able to deduce who ratted them out.

We used to talk about the “chilling effect” that a variety of government actions would have on the newsgathering process, on the minds of the reporters who might think twice—or more than that—about pursuing a story when faced with the possibility, or the likelihood, that the government was going to fight back.  And this is that.

It’s inconceivable to me that all the people involved in these two growing scandals are merely misunderstood or made poor decisions about how to achieve a legitimate objective, but I don’t think the blame goes all the way to the top.  This president is neither that paranoid nor that stupid…although you’d think that a professor of constitutional law might have impressed on his subordinates some of his relevant thoughts about the proper use of governmental power.  If this news had come out while the last man was president, I would have accepted it as prima facie evidence of the evilness of his administration and its soulless pursuit of instituting theocratic capitalism as our new form of government.  I would have been wrong, but I admit I would have thought it.

When the government spies on reporters and appears to punish political enemies, it gives the tin foil hat crowd encouragement: “The government is spying on you—it’s keeping track of who you call and who calls you, it’s watching what you do and where you go and who you meet, it’s keeping information on your income and your taxes and your friends and who you associate with, and it’s using that information against you.”  Today that sounds a little less ridiculous that it did last week.

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Stand by for American history

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The United States Supreme Court hears arguments this week in two cases involving same-sex marriage that could make civil rights history.  For those who can get beyond a knee-jerk reaction to the very idea of same-sex marriage, who are interested in the nuts and bolts of how the court operates, how this court operates, who want to be able to read the reports of the oral arguments or listen to the arguments themselves (yes, listen—the same day!) critically and develop their own insight into what’s happening and what the results may be, check out Emily Bazelon’s post in Slate today.

Tuesday and Wednesday, the Supreme Court will dive into back-to-back arguments about gay marriage. These cases that are probably the biggest of the term, and certainly the sexiest. First up is an hour of Hollingsworth v. Perry, the suit challenging the constitutionality of California’s voter-approved gay marriage ban. Next comes an hour and 50 minutes on United States v. Windsor, which takes on the definition of marriage in the federal Defense of Marriage Act. That definition—the union of a man and a woman—denies gay couples more than 1,000 federal benefits that come with marriage, relating to everything from inheritance taxes to health insurance for veterans, even when their marriages are legally recognized in the states they live in.

The arguments will feature top lawyers including Ted Olson (former Bush solicitor general, pro-gay marriage), Paul Clement (former Bush solicitor general, anti-gay marriage), Donald Verrilli Jr. (Obama solicitor general, pro-gay marriage, though the Obama administration is still enforcing DOMA), and Vicki Jackson (Harvard law professor who will argue that the Obama administration doesn’t belong in court). What should we watch for to gauge how these cases will come out? Here’s my checklist.

Meanwhile, in case you missed it, here are the stories about the amicus briefs from the White House and Bill Clinton,  now both in favor despite earlier efforts to the contrary, and from major businesses that have always tried assiduously to avoid taking sides on anything as controversial as same-sex marriage, but now argue that the ban hurts business.  Even prominent Republicans, including Clint Eastwood, are making a case in favor of same-sex marriage.  The times, they are a-changin’…we should find out in June, when the decisions are expected to be announced, just how much.

A thought for the day, every day

Pat Ryan 1 Comment

“Each time we gather to inaugurate a president, we bear witness to the enduring strength of our Constitution. We affirm the promise of our democracy. We recall that what binds this nation together is not the colors of our skin or the tenets of our faith or the origins of our names. What makes us exceptional – what makes us American – is our allegiance to an idea, articulated in a declaration made more than two centuries ago:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.

Today we continue a never-ending journey, to bridge the meaning of those words with the realities of our time.”

–Barack Obama, Second Inaugural Address, January 21, 2013

In the wake of the Newtown school shooting

Pat Ryan 1 Comment

Passing along links to what I think are worthwhile reads on the school shooting in Newtown, Connecticut, and the aftermath…

For starters, here’s a dispassionate chronology from the Hartford Courant of just what happened in that school that morning. Just the facts ma’am, as best as they are known at the time.

Adam Lanza blasted his way into the Sandy Hook Elementary School. He fired a half-dozen thunderous rounds from a semiautomatic rifle to open a hole big enough to step through in one of the school’s glass doors.

Once inside, he had to make a choice.

Principal Dawn Hochsprung’s office was straight ahead. To the right, 25 or so children were rehearsing a play in the school cafeteria. To his left were the first-grade classrooms.

Lanza turned left.

The initial reaction of most people is disbelief that such a thing could happen…yet it’s been happening more and more frequently in recent years. In Slate Emily Bazelon wonders, if this doesn’t make us change our attitude about guns, what would?

In the United States, we’re divided, and we have no universal basic knowledge of weapons. We make it incredibly easy to buy the kind of weapons that shoot and shoot again instantly, but we don’t search people at the doors of schools or malls or movie theaters, and we don’t post armed guards in these places. We have the guns without the safety checks. We call that freedom.

Of course there are plenty of people renewing calls for more gun control, for outlawing assault weapons, for some kind of change in the law to make us feel safer. But it’s not just “gun control” people; some pretty staunch gun rights advocates are urging another look at the subject with an open mind.

Joe Manchin III, the pro-gun-rights West Virginia senator who drew attention in 2010 after running a commercial that showed him firing a rifle at an environmental bill, said that “everything should be on the table” as gun control is debated in the coming weeks and months.

David Frum makes a great point about the nuts and bolts part of any change in gun laws: he believes the push must come from outside government, along the lines of what Mothers Against Drunk Driving did to change the culture, to avoid politically polarizing the debate and dooming any chance for agreement.

That campaign should be led from outside the political system, by people who have suffered loss and grief from gun violence. Only that way can the campaign avoid being held hostage by the usual conflict of parties — Democrats who fear that gun control will lose them rural congressional districts; Republicans who exaggerate for partisan gain exactly what gun control would mean.

Gun control should no more mean the abolition of guns than Mothers Against Drunk Driving abolished the car.

(snip)

Responsible gun owners have a right to their guns. The challenge for the grass-roots gun-safety movement of the future is to focus on the danger posed by irresponsible owners. The goal should be less to ban particular classes of weapons — such a goal puts the law in a race against technology, a race the law will likely lose — and more to change the rules defining who may keep a gun.

Impossible, you say—there’s no way we could change the culture on guns. Well, we’ve done things like this before…

To modern sensibilities, the injustice [of lynching] once again seems obvious, as do the solutions: Prosecute lynchers, fight for racial justice, strengthen the rule of law, and mobilize public opinion to condemn rather than excuse outbursts of brutality. And yet it took more than 100 years for lynching to begin to disappear as a feature of American life, and even longer for Americans to fully acknowledge the depth of its horror. In the meantime, thousands of influential people, including many esteemed congressmen and senators, argued that lynching was simply a fact of life, a random act of violence about which nothing could be done. It was not until 2005 that the U.S. Senate, spearheaded by Mary Landrieu, apologized for failing to pass federal anti-lynching legislation, and for leaving hundreds of innocent people to be sacrificed to official inaction.

But just changing gun laws isn’t the answer; we should look at changing not only laws but our attitudes toward mental illness, and be better at seeing the warning signs that disturbed people give before they commit such an extreme act of attention-grabbing.

One reason shooters tip their hands is that they are trying to solve a problem. Though they are often intelligent, high-performing boys, their peers tend to see them as unattractive losers, weak and unmanly. In a school culture that values sports prowess over academic accomplishment, they face rejection. The shooters are rarely loners, but tend instead to be failed joiners, and their daily social experience is full of friction. Since they are almost always mentally or emotionally ill, those rejections — so common in adolescence — take on greater importance and become a fixation. Rebuffed after trying to join friendship groups, they look for ways to gain attention, to reverse their damaged identities.

The shooting is the last act in a long drama: a search for acceptance and recognition. The earlier acts fail miserably. But once a shooter starts to talk about killing people, ostracism can turn to inclusion. Suddenly, he is getting the attention he has been craving.

Help for mentally ill. A change to the culture of guns. David Gergen makes the case that we must take action to honor these dead and do it now or next time the blood will be on our hands.

Some years ago, no one thought that we could change our tobacco culture. We did. No one thought that we could reduce drunk driving by teenagers. We did — thanks in large part to Mothers Against Drunk Driving.

Years from now, no one will note what we say after this latest massacre. But they will hold us morally accountable for what we do. To honor all of those who have been slain in recent years — starting with the first-graders in Connecticut — we should highly resolve to change our culture of guns.

Meanwhile, to some measure of surprise, the National Rifle Association is laying low. Out of respect? Don’t know; they’re not talking.

On Dec. 13, the National Rifle Association’s Twitter account announced a giveaway promotion, thanked its followers for getting its Facebook page up to 1.7 million “likes,” and related a story from Wyoming in which a gunman apparently retreated from a nail salon after realizing one of its customers was “packing heat.” It tweeted the Wyoming case using the hashtag #ArmedCitizen.

On Dec. 14, the day an armed citizen killed 26 unarmed women and children at a Connecticut elementary school, the NRA’s Twitter account went silent. It has not tweeted since. Meanwhile, its Facebook page has disappeared, along with those 1.7 million “likes.” Navigating to www.facebook.com/nationalrifleassociation now redirects to the Facebook homepage.

 

UPDATE Dec. 18: The NRA ends its silence with this statement.