Pay close attention to what Barack Obama said, at Saddleback, was his principal reason for opposing the nomination of John Roberts to the Supreme Court. Obama expressed justifiable concern about the power that is now inherently vested in the executive branch, of which Chief Justice Roberts is an obdurate supporter.
Make no mistake: there is a defining difference between the two presidential candidates that must not be overlooked. The Democratic presumptive nominee wants to rein in a hyperactive, unitary executive that works to insinuate itself into every nook and cranny by intelligence overreach. Given how comfortably the senator from Arizona fits into his Texan predecessor's shoes, and his gleeful acquiescence with his pro-life, pro-terror Party, one can expect little by way of separation of powers should McCain take the reins in January.
So when the Senate convenes to decide the fate of a federal shield law for reporters, next month, it is imperative to keep in mind that a federal shield law will not just protect confidentiality, and keep journalists from facing prosecution for refusing to be government informers, it will also ensure the free flow of information, something the Bush administration has tried sedulously to obstruct while taking a monolithic wrecking crew to the Constitution in a transparent attempt to deconstruct the First Amendment.
We asked for transparency, and this is what we're getting, but the larger question is -- what do we plan to do with it?
Last week, as WaPo reported, Robert Mueller, FBI director, personally telephoned the editors of both the Washington Post and the New York Times to apologize for trampling on the privacy rights, and illegally obtaining phone records of four reporters in a covert Indonesian sting back in 2004. Wouldn't it be "poetic justice" if Mr. Mueller's phone is tapped, too?
Apology not accepted -- said a bipartisan team of Senators, Leahy and Specter, told Mueller, speaking instead to the importance of maintaining the integrity of separation of press and state, and the need for a federal shield law to preclude governmental intrusion into phone, and e-mail records, as well as require some kind of court review, or warrant, to prevent telecoms from buckling to demands to turn over confidential records of journalists.
And, while the Justice Department claims to be in the process of investigating "the F.B.I.'s misuse of records demand," Mueller takes commands from someone, and the demand for reporters' phone records undoubtedly comes from the top -- the White House, and/or Dick Cheney.
Doubtless, Cheney instructed Mueller to order the FBI to intercept phone, and e-mail, records from telecoms back in 2004, and continues to do so today, with impunity, and without oversight, which is in flagrant violation of Justice policy which requires approval from the deputy attorney general in order to requisition personal phone records in any investigation.
Apart from the obvious, when sources are compromised, the free flow of information is obstructed, a concern that Obama has addressed, and one that is on the minds of all who value not just a free press, but freedom of speech, is this newfangled ubiquitous presidency, and the creation of an intelligence infrastructure that is designed to long outlive the Bush years.
The attorney general, Michael Mukasey, just confirmed his plans to unleash restrictions on domestic surveillance put in place after the Watergate debacle, thereby effectively giving a vitamin B booster shot to the intelligence industry.
The new rules, in Mukasey's own words, "expressly authorize the FBI to engage in intelligence collection inside the United States." But, as he himself suggests, this is nothing new -- the FBI has long had the capacity for domestic surveillance thanks, in part, to the USA Patriot Act, and even back in the Hoover days. The difference is that the attorney general wants to blur the distinction between "criminal" and "national security" investigations in perpetuity, thereby creating an umbrella of immunity for future intelligence-gathering crews, and executives, from violating Fourth Amendment rights.
What's more, Mr. Mukasey wants to legitimize racial profiling, a policy not invented, but clearly enhanced, over the past seven years, to round up, arrest, detain, and hold without limitation, those of Muslim descent in the name of "national security," without court oversight. And, when the attorney general says that the new rules will "remove unnecessary barriers" what he means is remove the need for a warrant, court review and, essentially, eliminate the need for oversight. This speaks directly to the FBI's demand for reporters' phone records in 2004 -- if Mukasey gets his way, the new rules will mean that it's no longer justice policy to get a court order, or approval from a deputy attorney general, before demanding private phone records of reporters or anyone else.
As you recall, it was the attorney general's idea to officially declare war on terror. This is important because, while informants are customarily used in criminal investigations, Mukasey now wants to relax regulations such that FBI informants can be used in "national security" investigations, and yes, Martha, this means that your next door neighbor can inform on you if you listen to music that homeland security deems seditious, and big brother can track you if you e-mail a friend in Australia who just happens to have a friend in Bahrain who just happens to know someone who the government has on their terror hit list or, as was the case in 2005 and 2006, you can be under FBI surveillance simply because Maryland state police happen to spot you at a rally opposing the death penalty, or the war in Iraq.
What does this have to do with a federal shield law, and a free press? When the media becomes another branch of government, the executive branch is further insulated from future prosecution, thus the media becomes an effective enabler, not investigator, of government misconduct.
And, it doesn't stop there. To ensure that Joe McCarthy can rest in peace, it is this administration that domestic terrorist clauses of the USA Patriot Act are election-proof so that local law enforcement may be deputized as FBI informants. So, in a city like Los Angeles, for instance, where gang members outnumber police by a ratio of about 12 to 1, police have been imbued with the authority to attend Code Pink meetings instead of busting those who sell handguns to minors who are shooting up our inner cities.
So, instead of keeping the streets safe from drive-by shootings, your friendly neighborhood black and white might be out combing impeachment rallies. How's that for homeland security? Don't you feel safer already?
The 43rd President of the United States, George W. Bush, will someday be remembered not only for preemptive war, but for what some are already calling "preemptive law enforcement." The feds (FBI, and other federal agencies) are, essentially, outsourcing intelligence-gathering to local law enforcement who, apart from the training, simply don't have the manpower for it.
Mukasey would say this is nothing new either, and he'd be right. The Patriot Act provided for the blurring of lines of demarcation between FBI and local law enforcement; all the proposed rules will do is ensure that the marriage between criminal policing and "terrorist" hunting is finalized.
The same FBI overreach which brought telecoms to their knees, forcing them to turn over private phone records of four reporters is, in the end, a transparent tool of the executive branch to control the flow of information, what the public knows, and when they know it. And, the only branch of government with the horsepower to overrule Justice's proscription against misuse, by the Federal Bureau of Investigation, of the confidential records of reporters, is the executive branch.
It is the executive branch not the FBI that is criminalizing the flow of information in order to insulate the President from any accountability for his misdeeds, or misadventures, and if the attorney general has his way, this latest proposal will be a malpractice insurance policy for all prospective presidents.
By forcibly, and illicitly, confiscating the records of reporters, the FBI is turning the press and the media into government informers who, like Justice and the Supreme Court, are firmly under the thumb of the executive. Knowledge, the best defense against tyranny, is not merely neutralized, it is neutered.
Control of information is the first step in abuse of power. We must never forget that among the most important lessons of Watergate was the crucial role of the press as a safeguard against an imperial, and subversive presidency.
Should, as a consequence of legislation passed under Bush, the FBI yet again get to bully telecoms, and newspaper editors, into collaboration in their misadventures, and misdeeds, the ability to witness, and document, this intrusion will be our only recourse, and the means to do this will be unavailable without a federal shield law.
Impeachment isn't the only recourse against abuse of power, a free press is, too. It is only due to the efforts of two journalists, Woodward and Bernstein, that another executive who attempted to sabotage representative government as we know it, Richard Nixon, was forced to step down.
September's Senate vote to expand protection for journalists that all but a few states now provide must take into account that a federal shield law won't just protect reporters, and their sources, it will protect all of us from the excesses of any, and all, future unitary executives.