A Jurisprudential Cesspool


When someone steals something, in this case a precious object, we call him a thief (to put it mildly), but when what has been stolen, and that by the highest officials of government and law, we can and should call them despots, for what has been stolen, most obviously, has been freedom of the press, and behind that, more important, freedom of speech, thought, organization, expression of a free people in all of its forms living in a democracy.  “Despot” is too good for those who deny freedom in the name of freedom, and deny the rule of law in the name of the law.  That is presently where we’re at, several baby steps away from peering directly into the abyss—a Police State under the fiction of protecting us, the people, from ourselves.  The Fetishism of Leaks, to Holder, DOJ, Obama, the internal subversion gnawing away at liberty (liberty for whom?), complements, and is a necessity in  the good fight of counterterrorism against our enemies apparently without limit, and therefore justifying a permanent-war doctrine and state of readiness.

Counterterrorism requires the authoritative, highly publicized, heavy-handed search for and prosecution of leaks—real and imaginary—to legitimize everything our government has become, trend lines starting in the aftermath of World War II, bipartisan and integral to maintaining unilateral superpower status, if  possible: a unitary historical process of counterrevolution to secure a globalized American capitalism, free from competing military-economic-ideological challenges, whether socialist and even alternative-capitalist modes.  Dissent is not wanted at home, impedances to absolute hegemony abroad.  Obama steps into a moving stream, but rather than divert it to reflect societal democratization, as his liberal-progressive mass followers claim (themselves unmindful of their own rightward shift and complacent burial of radicalism), accelerates its flow by removing any obstructions in its path (the elixir of market fundamentalism, deregulation, valued assistance to upper groups, and, his special contribution to the emerging structure of mature capitalism, its consolidation and monopolization, a systemic integration with militarism, witnessed in everything from staggering military budgets and modernization of the nuclear arsenal (now with attention to the weaponry deployed throughout Europe), to his trade-mark, targeted assassination.

Is punishment of so-called leakers surprising given this framework?  Does assassination conduce to respect for the law on other occasions?  Does “hit-lists,” an established fact of Terror Tuesdays as the National-Security gang sits around, at the Chief’s feet, planning summary executions from the skies, where habeas corpus, right to counsel, evidentiary preparation, are as remote as the 8,000-mile in distance from “pilot” of the drones to the victims, executed, vaporized, in plain sight.  The Obama Team is one set of tough cookies, not to be restrained by reporters, whistle blowers, soon perhaps, even demonstrators, as we saw when one CP writer, Medea Benjamin, was ejected from Brennan’s hearings for DCIA.  But now finally we are seeing some action in response to (a) abuses of the law, (b) the utter lack of government transparency, and (c) the chilling effect (a natural outcome of Obama’s own coldness with respect to civil liberties, as much else) on press freedom and the right to know in general, action, be it noted, taken by Republicans—not Democrats—and therefore easily dismissible by liberals, even when, as here, there is abundant merit in the criticism directed against government tactics in seeking to silence dissent and opposition.

Let’s look at the latest, the still developing story on DOJ’s subpoena for obtaining the calling logs of AP reporters to their phone lines, a subpoena that did not provide advance notice to AP (which might have enabled them to contest its issuance in court), obviously a slimy tactic.  Whether the Republicans on the House Committee on the Judiciary, Subcommittee on Crime, Terrorism, Homeland Security, Investigations, were motivated by partisanship, because the target of the investigation was James Rosen of Fox News, their letter, signed by Robert Goodlatte and James Sensenbrenner (the latter especially, not ordinarily one of my favorites), to AG Holder had in my judgment excellent arguments of a wider nature that could be applied to the Bradley Manning case and all who expose the secrecy and practice of overclassification of documents by government to shield itself from criticism of illegal acts—in foreign policy, categorized as war crimes.  Here Holder comes off badly.  Not least, we learn from the AP revelations, as a way of churning up the cesspool, that the search warrant for the e-mails of James Rosen occurred in May 2010, quite far back—with probably others unreported—in Obama/Holder’s tenure.  And the search warrant application came with the request that the court issue a non-disclosure order on Rosen (i.e., that the warrant not be disclosed), on the grounds that such disclosure “would endanger the life and safety of an individual, flight from prosecution, intimidation of potential witnesses, or otherwise seriously jeopardize the investigation.”

Hogwash, showing the Feds play hardball—secrecy to the nth power; yes, Rosen, but a formula, the non-disclosure order, that could be used against anyone, castrated into silence as Holder, DOJ, and Obama go about the management of the news.  But here, in the Goodlatte-Sensenbrenner letter, Holder is asked piercing questions about procedures, the clear implication being the unrestrained witch-hunting directed to the news media, and his own role in the search warrant application.  Because the search warrant referred to Rosen as a “co-conspirator,” he was therefore subject to prosecution under the Espionage Act—which these Republicans protested, while sadly, John Conyers, the outspoken liberal on Judiciary, covered for Holder, stating the investigation was troubling but not actionable.  What followed was the inevitable damage control, Holder offering to meet off the record with press representatives—he still defends secrecy as a way of life—presumably to tighten investigative standards, which the New York Times, but not the Washington Post, had the grace to refuse to attend, standing firm for public disclosure.

I suggest that 18 USC section 793d be spread across the entrance of the Department of Justice, or else stitched on Obama’s presidential attire—the frightening, and to me, evil, Espionage Act, which has for its purpose intimidation pure and simple, whenever government and its leaders are guilty of criminal activities and these crimes are threatened with exposure.  Secrecy and lack of transparency have no other purpose in a free society.  Kudos to Paul Gottinger, whose CP article, “Obama Hands Out the Hemlock,” May 30, assesses the significance of administration secrecy.  My New York Times Comment on the article discussing Holder and the Subcommittee’s Concerns (May 30) follows:

AG Holder and DOJ are currently our #1 enemy of press freedom and civil liberties in general, an out-of-hand menace that qualifies both by any common-sense definition to be home-grown TERRORISTS. Holder, always with Obama guarding his back, had trampled on habeas corpus rights affecting detainees; worse perhaps, he is responsible, along with his Boss, for employing the Espionage Act against whistleblowers, more than the combined total of Obama’s predecessors.

It’s time to clean the Augean stables. Holder is a disgrace to the rule of law. And Obama, given his signature weapon, armed drones for targeted assassination, clearly stands in violation of international law–possessing, no doubt, spurious legitimation from the Office of Legal Counsel and Holder. Why the extreme SECRECY which characterizes the administration, unless of course for fear that policies and practices would be disclosed showing Obama to be a war criminal?

Good riddance to lawbreakers who cloak themselves in the mantle of the law. The shame here is that only Republicans–and for their own partisan reasons–seem concerned about press freedom. Where can the people turn for honest, disinterested government?

Norman Pollack is the author of “The Populist Response to Industrial America” (Harvard) and “The Just Polity” (Illinois), Guggenheim Fellow, and professor of history emeritus, Michigan State University.


Norman Pollack has written on Populism. His interests are social theory and the structural analysis of capitalism and fascism. He can be reached at pollackn@msu.edu.

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