So You Think You've Got "Rights"?

The Plot Against the First Amendment

Scott Horton
Harper's magazine
Sat, 21 Apr 2007 19:09 EDT

In June, a case is slated to go to trial in Northern Virginia that will mark a first step in a plan to silence press coverage of essential national security issues. The plan was hatched by Alberto Gonzales and his deputy, Paul J. McNulty - the two figures at the center of a growing scandal over the politicization of the prosecutorial process. This may in fact be the most audacious act of political prosecution yet. But so far, it has gained little attention and is poorly understood.

In the summer of 2005, Alberto Gonzales paid a visit to British Attorney General Peter Goldsmith. A British civil servant who attended told me "it was quite amazing really. Gonzales was obsessed with the Official Secrets Act. In particular, he wanted to know exactly how it was used to block newspapers and broadcasters from running news stories derived from official secrets and how it could be used to criminalise persons who had no formal duty to maintain secrets. He saw it as a panacea for his problems: silence the press. Then you can torture and abuse prisoners and what you will - without fear of political repercussions. It was the easy route to dealing with the Guantánamo dilemma. Don't close down Guantánamo. Close down the press. We were appalled by it." Appalled, he added, "but not surprised."

Britain has of course never had a media with the freedom of the American press. John Milton railed against the abusive requirements of licensing without making headway. Britain had the tradition of Royal Prerogative, a tradition of branding political rabble rousers with the mark "SL" for "seditious libeler." Of course, many of those seditious libelers emigrated to America, which helps explain why this was an issue contributing to a revolution that broke out in 1776. The erstwhile colonists heard Milton's appeal and followed it, producing a decisive parting of the ways in the English-speaking world. But that's all very inconvenient history, which is certain soon to be expunged from the history books. After all, those who control the present, control the past. And Gonzales had come down with a very bad case of Official Secrets envy.

By May 2006, Gonzales was on ABC's "This Week" program, convinced he had found the link. Could the United States gag the media to prevent its publication of classified information? "It depends on the circumstances." Gonzales explained, "There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility. That's a policy judgment by the Congress in passing that kind of legislation. We have an obligation to enforce those laws." This, to be sure, is the same Alberto Gonzales who appeared before the Senate Judiciary Committee and insisted in the face of an incredulous Senator Arlen Specter that the Constitution incorporated no guarantee of habeas corpus. He is an attorney general possessed of a copy of the Constitution which is strangely different from that ratified by the states in 1789 and amended to include the Bill of Rights in 1791. And he is the attorney general who felt that the limitations of FISA with respect to surveillance without warrants didn't matter, though he couldn't coherently articulate a reason why. (That, after all, is why you have John Yoo.) When he says "we have an obligation to enforce those laws," he means of course to enforce the laws the way he and the president secretly understand them.

Even before Gonzales came to the Justice Department, secrecy had emerged as the hallmark of the Bush Administration. Security classifications were wielded with vigor to protect information which was politically sensitive, and measures were taken to put real teeth in the protections. At the same time, the administration consistently made clear that it viewed security classifications essentially as a partisan political tool. As emerged in the prosecution of Scooter Libby, Cheney, Rove, and Bush all discussed declassifying highly sensitive information when they felt the declassification would serve to embarrass a political critic.

Rather than approach Congress with a proposal to enact the British Official Secrets Act - a proposal which would certainly be defeated even in the prior Republican-led Congress - Gonzales decided to spin it from whole cloth. He would reconstrue the Espionage Act of 1917 to include the essence of the Official Secrets Act, and he would try to get this interpretation ratified in the Bush Administration's "vest pocket" judicial districts - the Eastern District of Virginia and the Fourth Circuit. The key man for this project was to be Paul J. McNulty, the man he soon picked as his deputy.

In May 2005, they had found the perfect case. Lawrence Franklin, a key aide to Undersecretary of Defense for Policy Douglas Feith, passed a classified policy memorandum to two employees of AIPAC, a lobbying group geared to advocate Israeli interests with the U.S. Government. It seems clear that Franklin and the two AIPAC employees had a common object, which was to invite critical public attention to U.S. policy towards Iran.

The case was passed to Paul J. McNulty while he was the U.S. attorney for the Eastern District of Virginia. Even at that point, Virginia's Eastern District had a well-established reputation as the most political U.S. attorney's office in the country. Among McNulty's key cases had been the "American Taliban" John Walker Lindh and the mentally unhinged Moroccan "twentieth hijacker" from 9/11, Zararias Moussaoui. Both cases had been sensationalized in the media. Less well known were the dozen odd cases of contractor abuse emerging from the Abu Ghraib scandal, investigated by the Pentagon's CID, and referred to McNulty. Nothing ever came of those cases; indeed, McNulty made sure of that.

McNulty quickly concluded that the AIPAC case would provide the perfect opportunity for the Gonzales project - converting the Espionage Act into the equivalent of the British Official Secrets Act. The core of the extraordinary theory advanced by McNulty can be found in these words from one of its recent briefs:

The government respectfully submits that an 'ordinary person exercising ordinary common sense' [...] would know that foreign officials, journalists and other persons with no current affiliation with the United States government would not be entitled to receive information related to our national defense.

By this theory, any receipt by an unauthorized person of classified information and correspondence concerning it is converted into an act of espionage, and thus made prosecutable.

The object of this exercise has been broadly misunderstood by many who have followed it - and particularly by Iraq War critics who delight in a perceived slap-down of AIPAC. But this is tragically short-sighted. If the prosecution succeeds, the Bush Administration will have converted the Espionage Act of 1917 into something it was never intended to be: an American copy of the British Official Secrets Act. It is likely to lead quickly to efforts to criminalize journalists dealing with sensitive information in the national security sector, as well as their sources.

Let's imagine America with the Gonzales-McNulty contortion of the law in effect. We'd never know how the Bush Administration came to embrace torture as a tactic in the war on terror. We'd know nothing about the torture-by-proxy system developed with key administration allies such as Jordan, Saudi Arabia, and Yemen - not to mention the system of "blacksites" established by the CIA in Eastern Europe, the Middle East, and Southeast Asia. We wouldn't know that the administration was violating the FISA statute with a massive surveillance program. And to paraphrase Donald Rumsfeld, that's just the known unknowns.

This would be a dream world for Karl Rove and Alberto Gonzales. And a nightmare for the rest of us. And the AIPAC case could, if it succeeds, bring the nation much closer to its realization.