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November 4, 2009

A Privileged Press?

By Lance Fairchok
It is a free press. ... There are laws to protect the freedom of the press's speech, but none that are worth anything to protect the people from the press.
-Mark Twain, "License of the Press" speech
The New York Times reported on Saturday that the "Obama administration, leading Senate Democrats and a coalition of news organizations have reached tentative agreement on legislation providing greater protections against the fining or imprisonment of reporters who refuse to identify confidential sources." The "Free Flow of Information Act" would allow federal courts the power to stifle subpoenas for information from reporters or privileged "covered" persons if the judge determines the public interest is better served by protecting their source information.

Senator Arlen Specter articulated the bill-writers' perspective on February 13, 2009, when he introduced the original S. 448:

This bipartisan legislation would establish a qualified reporter's privilege protecting them from being compelled to identify confidential source information. The bill seeks to reconcile reporters' need to maintain confidentiality, in order to ensure that sources will speak openly and freely with the media, with the public's right to effective law enforcement and fair trials. The situation in the United States today is that journalists are subject to a compulsory process to disclose confidential informants--at least in Federal courts.

It is bipartisan only insofar as the usual suspects jumped the aisle.

What will the legislation do? The bill's authors claim it will provide "conditions for the federally compelled disclosure of information"; in practice, it will protect a reporter or "covered" person who is the recipient of leaked privileged or classified information. This includes, of course, information that could damage national security, leaked for partisan reasons to "covered persons" who will use that information for political purposes disguised as journalism.

A reporter or "covered" person can receive protection from subpoena or prosecution by an ideologically allied court or judge. Such a person can also be freed from the threat of jail time, fines, or having to reveal the source of information in question. Using the "public interest" as an excuse, it will be a simple matter to break the law and funnel sensitive information to "covered persons" protected by the privileged legal status of a journalist, removing the implicit threat of prosecution for committing that crime, and making a mockery of equal protection and equal application under the law. It will cut the legs out from under our vital security laws and regulations.

This is not just about the press; it is about leakers and the politicians who enable them. Every time one of our security laws is broken for political purposes, those laws are diminished and the standards for public servants are lowered. The list of criminal, politically motivated leaks is long. The press perpetuates the damage to our security and usually are rewarded for it with Pulitzer prizes from the Left. Some historical examples:

  • New York Times reporters James Risen and Eric Lichtblau won a Pulitzer Prize for revealing the Terrorist Surveillance Program. They compromised a highly sensitive program that focused on overseas communications to known terrorists and depended on secrecy to be effective. They used a source that broke our most stringent national security laws and endangered us all. Risen and Lichtblau were instrumental in concocting the "domestic surveillance" propaganda to hammer the Bush administration, who could not refute them without further compromising their vital intelligence collection. The two intrepid journalists have been silent as the Obama administration continues on the same course.
  • A congressional staffer leaked the secret US Army Report on Abuse of Iraqi Prisoners by members of the 800th Military Police Brigade at Abu Ghraib. The investigation conducted by Maj. Gen. Antonio Taguba was thorough and resulted in the arrest, removal, and courts-martial of the guilty parties. Press hysteria multiplied the consequences far beyond what the original abuses would have elicited had they received proportionate coverage. Our enemies took advantage of the propaganda opportunity and American soldiers died because of press sensationalism. The press congratulated themselves for their bravery in reporting.
  • Mary McCarthy, who worked in the CIA Inspector General's Office, admitted to leaking information about secret CIA detention and interrogation programs to Dana Priest of the Washington Post and of having numerous unauthorized contacts with the press. She "acknowledged having unauthorized discussions with reporters in which the officer knowingly and willfully shared classified intelligence, including operational information," according to the official CIA statement. She was probably the source who revealed that the CIA had covert detention centers in Eastern Europe to encourage recalcitrant Jihadists to reveal their plans. McCarthy and her husband were big Democrat party contributors and John Kerry supporters.
The list goes on and on, almost inevitably involving officials associated with the Democrats leaking to sympathetic press organizations and journalists in order to elicit a political effect. Meant to damage political opponents at pivotal times in policy debates or election cycles, leaks are notoriously difficult to pinpoint. Our national defense and the lives of our soldiers mean nothing to people who would perpetrate serious crimes in the name of partisan politics, exactly the kind of people who by extension are granted special protection under this legislation.

By codifying privileged legal status for a press that already acts as if it is above the law, we open ourselves to a wide range of abuses, none of which will serve the citizen or the nation. The first amendment does not bestow special status for the press beyond the public's collective freedom of speech.

The 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.

Freedom of the press is a guarantee insofar as the government cannot limit press speech, which is an extension of the freedom of speech every citizen enjoys. It allows for the publication and dissemination of speech beyond individual speech, but it does not put the press above the nation's laws or its citizens. The "Free Flow of Information Act" gives the press special standing and exceptional treatment above every American citizen's birthright.

Make no mistake: if the average citizen leaked sensitive national security information or used that information for his own benefit, he would serve jail time, and rightly so. This bill takes America farther down the road to an oligarchy -- a rule of elites where the law applies to the average citizen but not to the privileged in the press or in politics. It is a cynical Democrat Party granting a boon to a loyal ally. The "Free Flow of Information Act" is not an expansion of freedom; it will protect lawbreakers who use the press for political purposes. It will help these hacks to control the flyover "public" of simple, second-class citizens who lack "privileges" in an America where all men and women are no longer created equal.
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