Tag New York Times

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(2) cannot be obtained in any other way, the government should not be allowed to try to compel journalists to turn over unpublished research or provide testimony or rat out their associates, because that turns those reporters into de facto government investigators and will make people with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.

It’s not as hard as I thought it would be to praise Congress for doing its job

Pat Ryan 2 Comments

The Senate took action first, agreeing on spending authorizations to keep the government operating until the end of the fiscal year; the House did the same the next day. Thing is, they both did what needed to be done more than a week before the drop-dead-line that would have seen the government start to shut down for lack of operating funds. How uncharacteristic of them.

In the past few years the American Congress has never missed an opportunity to run right up to the brink of any fiscal catastrophe; like the Road Runner being chased by Wile E. Coyote, it safely came to a screeching standstill in a cloud of dust just on the edge of the abyss (beep beep). To what do we owe this unusual display of fiscal responsibility? I don’t know, but I’d like to order another round.

It had become too easy and too predictable for the thousands and thousands of voices online and on air and in print to chastise House and Senate, Republican and Democrat, for failing/refusing to take care of business. I’d begun to think it was ultimately ineffective as well, but maybe–just maybe–there was still some shard of humanness left deep inside our elected representatives that was tired of being ridiculed and abused, that knew that the voices raised in criticism had a point. It’s not that I’m pleased with the details of the budget the government will operate under for the next six months, but that I’m pleased “the government” got off of its ass and made a decision with something less than the usual quotient of bluster and drama…the “sound and fury” that, as is often the case in our politics, signifies nothing.

So, good on ’em for what they done (there, I said it; are you happy?). And fine, let them go ahead and propose future budgets, have debates and secret meetings and public hearings and horse-trading and try to persuade us all of the virtue of their ideas; that’s the way we’re supposed to try to come to a consensus on public issues. Just because I don’t have the heart or the stomach for this circus right now doesn’t mean the rest of you should miss out on the fun.

The only “real” reality show is just too depressing to watch

Pat Ryan 2 Comments

Americans today “are turned off and tuned out of the sequestration mess in Washington. To a person, they are sick of the antics of those to whom they have entrusted enormous power.”  So begins David Gergen in his column today, and I can’t find anything in his argument with which to disagree.

The clowns we elected to represent us in Washington—and in many many cases, re-elected…shame on us—have failed to take care of one of the most fundamental things we send them to Washington to do: set a budget for the operation of our government.  Actually, as Gergen correctly notes, they have failed to do that one thing for four years running—so far.  Back in the summer of 2011 they set a trap to force themselves to act, promising across the board budget cuts at the end of 2012 at such a severe level that it was inconceivable they wouldn’t act to stop them from going into effect; when they still couldn’t beat that deadline they passed a law giving themselves two more months to wrap it up.  Well, here we are, two months later, but this time there doesn’t even seem to be the possibility that they can get together to give themselves more time.  The ineptitude is astounding!

It’s not unusual to have the legislative and executive branches of government  disagree about taxes or spending or any other policy issue; historically, someone on one side or the other finds a way to force a resolution.  But as Gergen points out, “we have a rare moment when both Congress and the president are retreating from their responsibilities. It’s hard to recall a time when we were so leaderless.”  The Republicans and the Democrats, the president and Congress, everyone is busy running from microphone to microphone insisting that there’s nothing they can do about it.  And the whole argument has become so tiresome that even in the face of budget cuts that threaten basic services, things we can all pretty much agree that government should be taking care of, a lot of Americans are just yawning and looking the other way.  How many times can the boy cry “wolf” before the villagers ignore the call?

Let’s hope we haven’t thrown in the towel yet, because this sequestration circle jerk isn’t the end of the line: whether these cuts go into effect this Friday or not, there’s a potential government shutdown only four weeks down the road if there’s no agreement on new spending authorization.  If we don’t dig up some leadership somewhere, what’s been going around for the last few years is going to come around again and again and again.  No winners here, America, not if we aren’t willing to find a compromise that keeps the whole thing from crashing down on our heads.