(For those joining our story already in progress, here's the Twitter-length summary: I've worked for the State Department as a Foreign Service Officer for some 24 years. I spent a year in Iraq, wrote a book critical of the State Department's waste and mismanagement in Iraq, blogged about it and now am being fired from the State Department for all that.)
The American Civil Liberties Union (ACLU), in a letter to the Department of State, said recently that the Department's actions against the book and blog are unconstitutional, that State's actions "constitute a violation of Van Buren's constitutional rights."
Straight up, no qualifiers.
The ACLU reminds the State Department that the Courts have said that "Speech concerning public affairs is more than self-expression, it is the essence of self-government" and cites the numerous legal challenges the State Department has willfully ignored that grant government employees the same First Amendment rights all Americans enjoy.
After reviewing the State Department's policies and regulations, the ACLU writes that "The State Department's pre-publication review process, as it applies to blogs and articles raises serious Constitutional questions," then goes on to detail those questions. The ACLU notes that State's actions toward me are but one example of its unconstitutional actions and apply to other employees as well. They conclude that "it is highly unlikely that the State Department could sustain its burden of demonstrating that its policy is constitutional... There is no justification for such expansive prior restraint on State Department employees' speech."
Now them's fightin' words, folks. As the ACLU says, freedom does not defend itself.
What It Means
The ACLU's announcement that the Department of State has violated the Constitutional rights, the First Amendment rights, of one of its own employees comes to the day, 225 years later, that the Constitutional Convention opened in Philadelphia and the founders began writing an extraordinary document. The First Amendment was added later, but the spirit of free speech underlies every clause and sentence of the original document. It is embedded in the very parchment.
The Founders would retch to see what has become of the spirit of the Enlightment that drove them, simply because America got frightened after 9/11. Those beautiful words of the First Amendment, almost haiku-like, are the sparse poetry of the American democratic experiment. The Founders purposely wrote the First Amendment to read broadly, and not like a snippet of tax code, in order to emphasize that it should encompass everything from shouted religious rantings to eloquent political criticism. Madison and Jefferson were strong enough to give away the power of a government they would run, and place it in the hands of the people that government would serve. There's courage most of us can never fully understand.
Now, very sadly, our first Cabinet agency, the Department of State, the part of the U.S. government that speaks most directly to people abroad about freedom and democracy, is run by much smaller men and women. They are afraid of their own employees and afraid of what you -- The People -- will know the way they go about their wretched business. Hillary Clinton, herself a candidate to take over the seat once held by giants like Jefferson, Adams and Madison, is now the leader of an organization that has turned its internal security against a blog, to get rid of one employee because of a book. Her State Department's acts now have a label that will follow her Department long past my departure: unconstitutional.
Every fluffy speech she makes to Syrian bloggers, or Chinese dissenters, will carry an asterisk -- but Madame Secretary, as you criticize oppressive regimes for shutting down free speech, didn't your State Department order its employees to silence a critic? Didn't your Department act unconstitutionally? Are your Department's actions somehow different than Beijing's?
Did not your Department violate, willfully, clearly and repeatedly, Madame Secretary, the First Amendment rights of an American citizen? How will you answer them, Madame Secretary? Will you lie? Will you defame the ACLU? Will you apply your own legal skills to the analysis of the State Department's wrongs? Mumble about a disgruntled employee? Or will you remain silent?
No One Home at Foggy Bottom
Of course the State Department has not responded. They have not answered me, they have not answered your letters and emails, they have not answered Members of Congress and they have not answered the ACLU. Why not? There is the ACLU letter, five dense pages of legal justification that leads to the core statement:
The ACLU said State's actions "constitute a violation of Van Buren's constitutional rights." There is the question. Now, finally, Madame Secretary, how will you answer?