By PHIL HOSKINS
Currently Frontline on PBS is in the middle of a four part series about the current state of the news media in our country. I highly recommend it. Last nightÃ¢â‚¬â„¢s episode focused on the relationship of the current Ã¢â‚¬Å“war on terrorÃ¢â‚¬Â and the right of the media to reveal information about government programs which search for information.
Just this week we discovered from the news media that all email messages sent by anyone to anyone else, whether in this country or not, are subject to intercept and review by our government. We discovered that the major internet service providers, such as AT&T, are cooperating in this program by voluntarily routing all emails through a series of secret government facilities where they are screened before being sent to their intended recipient.
Last year we learned about government intercept programs for telephone calls, also secret until the N. Y. Times and Washington Post told us about them. The Administration sought to suppress this information and even threatened prosecution under the Espionage Act for those disseminating such classified information.
The justification for keeping these and other spying programs secret put forth by the administration is that to reveal them Ã¢â‚¬Å“gives aid and comfort to our enemiesÃ¢â‚¬Â and that Ã¢â‚¬Å“they are necessary to prevent future attacks.Ã¢â‚¬Â Accepting the premise for the moment, there yet remains a larger issue Ã¢â‚¬â€œ when and under what circumstances is the media justified in reporting on secret or classified government programs?
Past decisions by the Supreme Court seem to go in the direction of permitting the government to preventing the publication of such information only in the most exigent of circumstances. This is the doctrine of prior restraint under which a publication can almost never be stopped in advance, although prosecution afterwards is perfectly allowable. So the N.Y. Times could publish the Pentagon Papers yet be brought up on criminal charges after publication if the government so desired.
So far the Bush Administration has not sought by court action to apply a prior restraint to the disclosures of its Ã¢â‚¬Å“anti-terrorÃ¢â‚¬Â programs, ranging from the CIA rendition program to the phone and email tapping efforts. But should they even be threatening to punish after the fact, as they have done?
This administration has argued that the press is not one of the Ã¢â‚¬Å“checks and balancesÃ¢â‚¬Â in our system of government. They describe them as simply another commercial venture that does not deserve a special status when it comes to things such as revealing state secrets or protecting sources of information from legal scrutiny.
I would suggest that this reveals a great deal about the startling lack of understanding of what a free society and representative democracy actually is, despite their claims to bringing the very same to the rest of the world. A free, aggressive and unfettered press is more important than any other element of our society. The founders knew this well and enshrined it in the very first Amendment to the Constitution to make the matter abundantly clear. That anyone, much less the President fails to understand this is possibly the most frightening of all the scary characteristics of this gang.
By its very nature, a Ã¢â‚¬Å“warÃ¢â‚¬Â against those who use the tactic of terror to press their issues or simply to harass us is a Ã¢â‚¬Å“warÃ¢â‚¬Â without a discernable end. It is not like WW II which not only had a beginning but also an end point. Wars of that nature end when the enemy nation is defeated. This conflict against those who use terror against us will never end. There will always be someone using this kind of tactic, even if they are domestic rather than foreign.
So if we are to be governed by the Ã¢â‚¬Å“warÃ¢â‚¬Â standard, we have just closed shop on our democracy and become a dictatorship in which only the government can make decisions about our privacy. We will never be permitted to keep anything from our masters because to do so is a threat to our Ã¢â‚¬Å“safetyÃ¢â‚¬Â. This is Orwellian in the extreme and insulting to anyone with a free bone in their body.
If we are to have any freedom at all we must always have the right to know about, debate and make decisions about any government program that impacts our personal lives in any way. It is our right as a citizen and there is never a justification for abrogating this right, at least absent Ã¢â‚¬Å“exigent circumstances.Ã¢â‚¬Â
And there is that phrase again, the one that this administration contends has already come into existence because some idiots flew planes into buildings and killed Americans. If this is all it takes to be Ã¢â‚¬Å“exigentÃ¢â‚¬Â we are in deep trouble. A common definition might be Ã¢â‚¬Å“Generally, an emergency, a pressing necessity, or a set of circumstances requiring immediate attention or swift action.Ã¢â‚¬Â If this is a never ending war, the AdministrationÃ¢â‚¬â„¢s reasoning is merely a cover up for a power grab of unprecedented dimension.
I would argue there should be neither prior restraint of such revelations nor subsequent prosecutions. In a free society, there are certain costs, sometimes very high, that must be borne by the people as a whole in order to preserve liberty. A free and unfettered press is one of them. It can result in greater danger to ourselves from real threats, it may result in real harm to our national interests. But anything less poses an even greater danger.
Any restrictions on the press, whether it by the N. Y. Times or Joe Blogger must be denied. It is our only hope of regaining control of our lives, our government and our freedom.
(Phil Hoskins is a Hollywood attorney who founded Ã¢â‚¬Å“Take Back West Hollywood.Ã¢â‚¬Â)