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.