By Dan Kennedy • The press, politics, technology, culture and other passions

A cold wind blows

The New York Times and the Boston Globe yesterday both published chilling stories about the Bush administration’s attitude toward freedom of the press and the rule of law. Unfortunately, for all their digging, the papers were unable to determine the administration’s intentions. But the signs are ominous, to say the least.

In the Times, Adam Liptak reported that the White House is looking into the possibility of using the Wilson-era Espionage Act to prosecute journalists for revealing national-security secrets. In the crosshairs are newly minted Pulitzer Prize winners James Risen and Eric Lichtblau of the Times, who revealed the existence of the NSA’s no-warrant wiretapping program, and Dana Priest of the Washington Post, who blew the whistle on undercover CIA prisons in Eastern Europe.

Liptak observes that the government in recent years has put more and more pressure on journalists to reveal their confidential sources. Most notoriously, former Times reporter Judith Miller went to prison last year rather than tell prosecutors what she knew about the Valerie Plame investigation. But Liptak adds:

It is not easy to gauge whether the administration will move beyond these efforts to criminal prosecutions of reporters. In public statements and court papers, administration officials have said the law allows such prosecutions and that they will use their prosecutorial discretion in this area judiciously. But there is no indication that a decision to begin such a prosecution has been made. A Justice Department spokeswoman, Tasia Scolinos, declined to comment on Friday.

Certainly it would be no great shock if the White House decided to travel down this road. I believe the first to raise the possibility of criminal prosecution was Boston lawyer Harvey Silverglate, writing in the Boston Phoenix earlier this year.

Even so, it could well be that if the administration decides not to prosecute, the rumblings surrounding these cases could serve their intended purpose. Scaring the media into acquiescence may prove to be just as effective for the president’s purposes as dragging the Sulzbergers and the Grahams into a criminal courtroom. What’s especially frightening about this is that if the Times and the Post broke the law, it was in the course of revealing government operations that were almost certainly illegal in and of themselves. The idea that the government can prosecute journalists for exposing official wrongdoing is something that should have been settled with John Peter Zenger. We may be learning that each generation gets only as much freedom of the press as it is willing to fight for.

Meanwhile, Globe staffer Charlie Savage, who has consistently come up huge on the national-security beat, reported yesterday that Bush “has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.”

Savage notes that the practice of issuing such presidential “signing statements” goes back to the presidency of Ronald Reagan (whose statements were drafted by a young legal adviser named Samuel Alito), and that George H.W. Bush and Bill Clinton issued them as well. But President Bush’s use of them is reportedly unprecedented both in terms of quantity and substance: Bush has gone so far as to sign legislation banning torture and then quietly issue a statement that he didn’t have to obey it.

As with Liptak’s story, it’s hard to tell exactly what’s going on here. Bush critics claim that the president is using these statements to do exactly what he wants — essentially abrogating the rule of law and setting up something akin to a presidential dictatorship. His supporters say the president is merely placing his interpretation of the law on the record so that it can be considered if and when it’s reviewed by the courts.

Yet, as Savage points out, we already know that the Bush supporters’ contention is not entirely true. Savage writes: “[W]ith the disclosure of Bush’s domestic spying program, in which he ignored a law requiring warrants to tap the phones of Americans, many legal specialists say Bush is hardly reluctant to bypass laws he believes he has the constitutional authority to override.”

Here is the heart of Savage’s piece:

Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation’s sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files “signing statements” — official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills — sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.

“He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises — and more often than not, without the Congress or the press or the public knowing what has happened,” said Christopher Kelley, a Miami University of Ohio political science professor who studies executive power.

This is truly chilling stuff, and gives us an entirely new understanding of the president’s record of never having vetoed a bill (something that’s often held against him by his conservative critics, especially when it comes to spending). Given Bush’s defiance of the Foreign Intelligence Surveillance Act of 1978, which requires warrants to engage in the kind of wiretapping exposed by the Times’ Risen and Lichtblau, it suggests that there is nothing even remotely benign about Bush’s signing statements.

Bush’s attitude seems to be that he will follow the law — but that only he has the right to decide what the law is.

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  1. mike_b1

    Wonder if Bush has ever heard that it’s not a good strategy to fight a war with folks who print ink for a living?

  2. Lis Riba

    Regarding the crackdown on journalists, how do you think this ties into FBI efforts to go through Jack Anderson’s files?Further intimidation and hopes of a chilling effect, or something more serious?

  3. Philocrites

    Surely you meant to say “Yet, as Savage points out, we already know that the supporters’ contention is not entirely true,” because you go on to highlight Savage’s account of instances when Bush has clearly ignored provisions of the law.

  4. John Galt

    The blatant disregard of law, the depraved indifference of truth, the chronic failures and frauds, plus the inept attempts to masque these bumblings all have been recorded before. Unfortunately, the press/media sat comatose for five years as its credibility eroded and is forced by its own inactions to recover and defend what it had. Only the stupidest of commanders fights for the same territory twice.The handwringing now ought be done in front of a mirror.

  5. Dan Kennedy

    Philocrites — Fixed! Thanks. Caught another ding, too. Ecto and Blogger aren’t getting along this morning, which makes it harder to edit.By the way, enjoy preaching in Middleborough. It’s my hometown, although I was not a UU when I was a kid. (Even though my grandmother was. It’s a complicated story.)

  6. Anonymous

    Seems the Globe was on this signing statement story a while ago, but it was ignored more than Stephen Colbert’s slaying of all things Bush (including Faux News) at the correspondents’ dinner this weekend. I remember thinking, before the 2004 election, man, Bush has been such a f**kup, there’s no possibility Kerry loses this election. And that was when we only knew about a quarter of this administration’s crimes and blunders. Is it possibly, just maybe, getting close to the point where there might be some sort of revolution in this country, whether it’s like the Republican revolution of 1994, or something else entirely? I mean, how much more does the Constitution need to be crumpled up before people get the overall picture here?

  7. Don

    A newspaper has two separate major sections: the news and the editorials. The “freedom of the press” applies only to the editorial section. In the news, only facts should appear. Interpretation of these facts can appear in the editorial section which should be staffed with persons who are especially trained and have done sufficient research to comment on the facts. It is also permissible to allow everyday citizens to make comments, with the understanding that they (and many reporters) are not experts.A quick example: My local newspaper printed two articles about The Day of Silence using the expression “honoring” gays and lesbians. The correct word for the news is “recognizing.”

  8. Anonymous

    This seems to be more of an exercise in futility or an acedemic debate at this point, rather than a credible concerted effort by the nation’s media and misc groups to stem these infractions.You know very well it isn’t stopping anytime. They’ll go on doing what “they need to do.”If being shown off on all these failings in front of national audiences, just like this past weekend, is not stopping them, what do you think will?If anything, it will accelerate since there is a chance Dems will gain one or both of the chambers, potentially unearthing many of these transgressions, by the record numbers.The key to all of this in my mind is this: Mr Bush and his advisers seem to think that not only the Nation will forgive and minimize these actions just like they did with great presidents before in tough times like John Adams, Jefferson, Lincoln and FDR, but that he will go down in History as one of our Great Presidents, Reagan-style.He won’t. It doesn’t look like History will be kind to his tenure and his legacy will be cloudy one. He is looking in his head at a big monumental monument erected around the National Mall already. It is only a matter of more water flowing under bridges before “Americans realize how great and righteous he [had] been.”If they functioned in terms of doing what is legal and best TODAY, they wouldn’t be doing what they do. They can do everything they need done LEGALLY and with Dem cooperation. But they are muscling in in a way that will not be appreciated in hindsight by History. We don’t live in an era or mindset that would accept such style easily anymore. They’re mistaken and counterproductive at this point, to a degree that is alienating many principled conservative and undercutting their own support on the Hill and in other areas, like courts, thinktanks and conservative media corners.N.

  9. Anonymous

    One local ironic sidebar to this charade. Over the weekend, there were a couple of headlines and stories quoting Lt Healey at the convention warning about the dangers and downsides of “One Party Rule”Someone hand here a mirror. We blame Mitt for caring too much about Washington. We have someone else who is or wants to appear completely dissociated from it.How ironic! Not the best time to chant that, Moffie!

  10. MeTheSheeple

    The Boston Globe article said a -lot- more than that, unfortunately. Take a look at the affirmative action section, and set aside your views on affirmative action for a moment. It’s the process, not the immediate example, that’s the concern.Bush’s signing statement showed he wanted the executive branch to overrule the legislative branch in at least nine cases. Bush’s signing statement also clearly contradicts a recent, clear ruling by the U.S. Supreme Court, the judicial branch.In short, Bush has decided that checks and balances do not matter, and the executive branch has the power to simulateously overrule the judicial and legislative branches. This, IMO, is an obvious case of extra-Constitutional action — it’s a dictatorship working under the pretense of a republic. I don’t care who the individual in the executive office is; this is not an American government.An eighth-grade student understands what our president does not, or will not.

  11. Anonymous

    Hatlo,No, freedom of the press refers to the news department as well as the editorial department. The idea is the press is supposed to seek out the truth — the facts, if you will — no matter whether it shakes the assumptions of the time. The reason it’s called the Fourth Estate is a free press is supposed to serve as the watchdog guarding democracy and abuses of power. If you throw reporters in jail for doing that, democracy loses.

  12. John Galt

    Facts??? Facts???Are you not aware that Ronald Wilson Reagan, conqueror of Grenada, defender of stage 33, marionette extraordinaire, and foundation the duplicitous G0P is built upon stated proudly, “Facts are stupid things.”Evidently the press/media saw the light.

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