Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears.
Louis Brandeis, Whitney v. California
It was another great week on the national scene. First it was George Bush showing his lack of scruples and then it was the New York Times belying its motto: “All the news that’s fit to print”. (The Times would probably explain that the question is what the meaning of “fit’ is.)
The New York Times’s contribution to the week was its acknowledgement that it learned before the 2004 election that George Bush was a law breaker yet chose to remain silent. The broken law was Mr. Bush’s habit of repeatedly approving a policy that permits the National Security Agency to eavesdrop on U.S. citizens without obtaining a court order. Historically the N.S.A. has only conducted spying operations abroad.
When the White House learned what the paper had learned, it urged the paper not to publish the information lest terrorists learn that they were being scrutinized by the Bush administration. The administration did not suggest disclosure would affect the 2004 election although it might have since a number of those who voted for Mr. Bush might have voted for his opponent had they known of Mr. Bush’s fondness for illegal spying. As Senator Chuck Hagel said: “If this is true, then it needs to stop. It’s very clear in the law that the National Security Agency is prohibited from domestic spying, from spying on citizens of the United States unless there are extenuating circumstances.” One way of stopping it would have been to vote for Senator Kerry. Had that happened Mr. Bush could have continued his spying as a private citizen, using one of the decoder rings he got as a child with a box top and $.25 instead of the N.S.A.
As offensive as news of the Times’ self-censorship was, the week still belonged to George Bush. When asked by Jim Lehrer of “The NewsHour With Jim Lehrer” about the eavesdropping he said: “We do not discuss ongoing intelligence operations to protect the country. And the reason why is that there’s an enemy that lurks, that would like to know exactly what we’re trying to do to stop them.” He went on to say it was being done to fulfill his obligation to “protect the civil liberties of the American people.” By spying on thousand of citizens he is making those on whom he is not spying safer. Leaders of many third world countries would find that a compelling argument.
By the following morning Mr. Bush had a new answer to the question asked by Jim Lehrer the preceding day. He said the practice was a “vital tool in our war against terrorists” and said he had authorized the spying more than 30 times since the events of 9/11. He did not mention that by acknowledging the existence of the program he was contradicting the previous day’s George Bush who said he did not want to help lurking terrorists by responding. When protecting his image competed with protecting the country, his image won out. Self interest also manifested itself in an interview with Fox News.
On July 9 Mr. Bush had been asked to comment on the investigation by special prosecutor, Patrick Fitzgerald, of his deputy chief of staff, Karl Rove. He said he would not prejudge the investigation based on media reports and would not comment until the investigation was complete. When press secretary Scott McClellan was asked at a press conference about the president’s opinion of Scooter Libby’s guilt or innocence Mr. McClellan said the president had a policy of not talking about an investigation while it was ongoing. When Mr. Bush was asked to comment about Tom DeLay’s indictment in an interview on Fox news, Mr. Bush assumed the comical pose of legal scholar and said without hesitation that he was sure Mr. DeLay was not guilty.
When Mr. McClellan was asked to contrast and explain this comment with the consistent refusal to comment about the Libby and Rove indictment and investigation while they were underway, Mr. McClellan explained that Mr. Bush’s expression of an opinion about the innocence of Mr. DeLay was an exercise of “presidential prerogative.”
Mr. Bush has a closet full of presidential prerogatives. Commenting or not commenting on ongoing investigations if he thinks he can influence their outcome is one. Spying on his subjects is another. Seeing what wonderful prerogatives a president has may awaken in some a wish to be president. In others it gives birth to the wish that we had a different one.
CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Brauchli.firstname.lastname@example.org or through his website: http://hraos.com/