National Security Depends on Press Freedom

Pulitzer Prize-winning reporter James Risen

The U.S. Supreme Court and U.S. Court of Appeals for the Fourth Circuit have spit on our U.S. Constitution, demanding that a journalist reveal an anonymous source or go to jail.

They’re obviously banking on two things: (1) most Americans don’t know enough about our own Constitution to notice or care, and (2) we’ve been beaten down enough by the military-industrial complex and growing surveillance-police state so that we’ll remain silent to their actions. (For any of these aggressive phrases that might alarm you, notice we’re including links to support our assertions, all of which affect you, the American public.)

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The conservative federal judges are hoping you’ll think backwards, growing fearful enough to believe that your national security depends on government intelligence and surveillance rather than press freedom. After all, that’s what they seem to think. But then again, they get their paychecks from the same Millionaire Congress that the Central Intelligence Agency (CIA) and National Security Agency (NSA) receive their big bucks from, as do the federal prosecutors who answer to the Millionaire President.

But don’t think their way. Here’s what you should recall:

The First Amendment

The First Amendment to our Constitution reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment and the rest of the Bill of Rights were adopted by We the People in 1791. No one had even heard of the CIA or NSA then. That’s because they didn’t exist. Most folks probably knew our nation had spies. We even had spies when we fought the British to become free.

But the press did exist. And the Founding Fathers knew that–to keep the federal government in line, from its spying, to its policing, to its use of our tax dollars—we’d require a press with liberty to investigate and report on government, free of its interference. Which is why the First Amendment reads in part: “Congress shall make no law…abridging the freedom…of the press.”

That reads “NO LAW.” So, what the federal Congress can’t do, the federal courts have decided to do. The federal high court and most of the Fourth Circuit judges have recently found it complicit to override the “NO LAW,” and to abridge press freedom. They chose to side with the government and its ongoing propagandized argument that release of almost any classified information will endanger national security. And what it deems classified is surely excessive.

This limiting of press freedom goes back to 1972, when the Supreme Court ruled in Branzburg v. Hayes that a journalist was not protected by the First Amendment and could be subpoenaed by a grand jury.  The decision was 5-4. Writing a concurring opinion for the conservative majority, Justice Lewis F. Powell said that press privilege “should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.”

That’s the same Lewis F. Powell who, as a corporate and tobacco lawyer before his appointment to the high court, wrote the infamous “Powell Memorandum”–a year before his Supreme Court opinion on press freedom.  He wrote his telling memo to the U.S. Chamber of Commerce.

Titled “An Attack on the American Free Enterprise System,” Powell opened his message to the organization of major corporations by saying, “No thoughtful person can question that the American economic system is under broad attack.”

He went on to say later, “The most disquieting voices joining the chorus of criticism came from perfectly respectable elements of society: from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians.” He then called for “constant surveillance” and purging of society’s left-wing elements.

Get the picture?

Ever since Powell stated his rationale in the Supreme Court case a year later, courts have cited it in opinions on the press, which led to the current case.

USA v. Jeffrey Alexander Sterling

Right now, we’re speaking specifically of the Fourth Circuit’s ordering a New York Times Pulitzer Prize-winning reporter, James Risen, to testify in the trial of a former CIA operations officer, Jeffrey Alexander Sterling. In 2010, Sterling was indicted under the Espionage Act of 1917.

us constitution

Opening section of your U.S. Constitution.

It was a sign of the White House’s growing effort to quell transparency in government, to keep secret from the public more and more government activity. Rarely had a federal official been punished under law for alleged contact with a journalist. But the Obama administration has consistently increased efforts to legally harass federal whistleblowers—i.e. government agents who have tried through their agency channels to correct legal wrongs or growing agency errors and, when authorities tried to quiet them, then went to the press to make the damaging activities public.

Sterling is being tried for allegedly revealing details regarding Operation Merlin, a reportedly covert effort under the Clinton administration to supply Iran with flawed nuclear-weapon design information. The government charges that Sterling provided these details to journalist Risen, who revealed them in his book State of War. Risen reported the CIA supplied the flawed information to a defected Russian nuclear scientist for him to supply Iran. But the scientist realized the flaws and pointed them out to the Iranians, and may actually have helped them.

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Federal prosecutors have demanded that Risen should testify about who his anonymous source is. (Somehow, the CIA and its 21,500+ employees with a $14.7 billion budget evidently haven’t been able to find that out.) Risen argues that the First Amendment protects him and his sources, that without that protection federal employees would never come forward to challenge secret government practices. He has said that, rather than reveal his source, he will go to prison.

Obama’s prosecutors obviously would love that. Why? Risen is a respected, nationally known journalist—a two-time Pulitzer Prize-winning reporter honored for his stories on (1) President George W. Bush’s warrantless wiretapping program, and (2) 9/11 and terrorism. Lately, he’s written about the NSA. If prosecutors can get a court to imprison him, that’s a powerful, intimidating statement to all American journalists that the federal government will go after them, and probably win with conservative majorities in the higher courts. And if they can get journalists, that surely will put a clamp on critics within the government.

That’s one reason why so many news organizations filed as a friend of the defendant in the government’s case against Sterling. Those organizations include Newspaper Association of America, the National Association of Broadcasters, Reporters Committee for Freedom of the Press, as well as companies like the Associated Press, Gannett News, Hearst Corporation, Reuters America, The Washington Post, and more.

If you want to read the legal court filing, that’s here. If you want to read a news story summarizing the case, that’s here.

We will point out that one of the appellant court judges dissented from ordering Risen to testify. Judge Roger Gregory argued:

The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society.

Peculiar Progressive concurs with Judge Gregory. If you do too, we suggest you write President Obama and demand he follow our Constitution and instruct the Justice Department to no longer try to intimidate journalists with threats of prison. You can also write your Congressional delegation and demand that it challenge the president on this issue and support freedom of the press. Also, to not allow appointment of federal judges who want to limit press freedom. And let your elected reps know that, if they don’t do as you wish, you’ll work to find a respecter of our Constitution to replace them.

That’s particularly true of the Senate, which is currently trying to form legislation to limit press freedoms. Surely an unconstitutional plot.

It’s appearing more and more that it’s time for you to protect yourself and your children’s future through Peaceful Revolution: i.e., getting organized, educated and active in defending your Constitutional rights. In this case, the legal right to a free press that can keep you apprised of government’s legal and illegal activities. Protecting the press is, in effect, protecting yourself and your national security.

 

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  • Carole Adornetto

    Why oh why does history have to repeat itself? We’ve been through this fight before. A free press always wins. . . but we live is terrifying times so the future is unknown. Roger – brilliant column !

  • F. D. Barlow

    A brilliant column. I’m putting your name forward to address my Rotary Club on the Monday nearest 19 September, the anniversary of the signing. We are not only celebrating the signing,
    but have adopted an elementary school, We provide copies of the Constitution and Bill of Rights, and Declaration of Independence, but we go in and team teach the classes. The youngsters are NOT bored, and seem to really grasp the importance of the Constitution. They seem to have a natural reverence for it.
    I have but one other comment. Over the years almost the only time we get a real rise out of the Fourth Estate on a Constitutional issue is when some idiot on the bench threatens or jails one of its” members. Many more violations of those rights take place, and the only one to raise the issue seems to be the ACLU, which has been tarred with the brush of liberality of the more bleeding heart kind. Indeed, this SHOULD be addressed by doctrinaire conservatives. Unfortunately that “wing” has been captured by those in the limited issue culture. This obscures the greatness of the Constitution by making it confrontational and exclusionary. To me, it is inclusive and rationally dialectic, but that’s just my opinion. Roger, please keep raving!
    With deepest respect,
    Dave

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