Prying
by the press exposes spying on Americans Inside the First Amendment By
Paul K. McMasters, First Amendment Center
Earlier this month, The New York Times reported that
since shortly after the 9/11 terror attacks in 2001
the National Security Agency, whose mission is to
monitor the communications of foreigners outside our
borders, has been focusing its futuristic spy technology
on Americans.
The electronic eavesdropping was conducted under orders
from the president and without benefit of warrants
from the special court set up to make sure such domestic
spying is necessary and lawful.
Immediate reaction to the report proved its importance.
Political leaders from both parties condemned the
warrantless surveillance. The president assailed the
report on the radio and in a press conference. Congress
delayed a vote on renewal of the Patriot Act. Senate
Judiciary Committee Chairman Arlen Specter said he
would conduct a hearing. The Foreign Intelligence
Service Act court that was circumvented in the NSA
surveillance called for an immediate briefing by the
administration; one member of the highly secretive
court resigned. And defense attorneys for some terrorism
suspects announced that the disclosures could lead
to legal challenges on behalf of their clients.
Not surprisingly, the Times also came under blistering
attack - from the president and other political leaders,
intelligence officials, pundits and bloggers, even
competing news organizations. On one side, detractors
claimed that the report had dangerously compromised
national security; The New York Post headlined a Dec.
27 editorial with the suggestion that the Times was
toying with treason.
On the other side, critics complained that the story
should have been published much sooner; a Los Angeles
Times article suggested that the Times' motive for
publishing had as much to do with a pending book deal
as with news judgment.
Administration officials had tried for more than a
year to keep the newspaper from publishing the story.
The president himself even summoned Times officials
to the White House to persuade them not to go ahead
with the report. The newspaper agreed to withhold
some information but not the story.
At a press conference two days after publication,
President Bush accused the Times of committing a "shameful
act" and of "helping the enemy."
It is a wonder that journalists dare bother. Yet they
do. Here are just a few of the important issues brought
to the public's attention in just the past few weeks:
--The CIA has been dropping off terrorism suspects
at secret prisons in Eastern European nations where
interrogation can be conducted under less-stringent
restrictions than our own policies allow.
-- The Pentagon has been engaged in a massive initiative
to collect, store and share data on thousands of American
citizens involved in peaceful protests and demonstrations.
-- The FBI has been using national security letters
to secretly access the personal records of thousands
of U.S. citizens.
-- Federal, state and local law enforcement has been
conducting surveillance and collecting data on a number
of organizations and anti-war protesters.
Keep in mind, this is information the White House
and federal agencies actively work to hide from us
and that our elected representatives and the courts
have failed to reveal or uncover. Indeed, a formidable
barrier of official secrecy has made it very difficult
for the press to bring these issues to light.
Americans will disagree over whether the press should
report these highly sensitive matters. But all thinking
citizens should agree that they need such news to
participate fully and effectively in the public discourse
that determines not only how their personal lives
are affected but how their nation is defined.
We have learned the hard way that government power,
no matter what individual, agency or party holds it,
is abuse waiting to happen. That is why so many checks
and balances have been built into the system. Ideally,
each branch holds the others accountable. But the
public must hold all of them accountable.
Obviously, in extraordinary times there will be assertions
of extraordinary power for law enforcement and intelligence
authorities. But when Congress and the courts are
reluctant to exercise oversight, the people must step
in. They are powerless to do that without the vital
information that the press provides.
More and more, Americans are being forced to navigate
the tricky terrain between the needs of government
officials trying to make the nation safer and the
needs of individual citizens for personal privacy
and the right to engage in even mundane First Amendment
activities without worrying whether their most innocent
of utterances or casual of contacts might look sinister
in a government dossier or database.
As government investigators peer and pry ever deeper
into our private lives and terrorists fan our fears,
essential elements of the democratic compact between
a government and its citizenry become vulnerable.
The rule of law fades. Security for speech and press
freedom deteriorates.
When it ventures into areas so sensitive, the press
should expect criticism, even attacks. Criticism of
the press is one thing. But when government officials
aggressively attempt to filter the news for the public,
when the Pentagon pays for the publication of "news"
in Iraqi newspapers, or when misinformation, disinformation
and propaganda are actively pursued as antidotes for
news, then the role of the press in a free society
is in real danger.
Those who prefer to keep themselves and fellow Americans
in the dark about these matters must confront at some
point the possibility that ignorance is neither democratic
nor American, neither security nor freedom.
We should count ourselves fortunate that we have a
press that labors to penetrate the fog of an undefined,
unlimited and possibly unending war to bring us news
that informs us not only of how the battle is going
but how freedom is faring.
Paul K. McMasters is First Amendment ombudsman at
the First Amendment Center, 1101 Wilson Blvd., Arlington,
Va. 22209. Web: www.firstamendmentcenter.org. E-mail:
pmcmasters@fac.org.
