Governments hate leaks except, of course, those that they authorize. And when a leak embarrasses an administration, it will go to great lengths to deny the truth and even further to punish everyone involved.
This, however, is what has become of freedom of the press in America today:
WASHINGTON Attorney General Alberto Gonzales said Sunday he believes journalists can be prosecuted for publishing classified information, citing an obligation to national security.
The nation's top law enforcer also said the government will not hesitate to track telephone calls made by reporters as part of a criminal leak investigation, but officials would not do so routinely and randomly.
"There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility," Gonzales said, referring to prosecutions. "We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected."
Never one to stop a lack of laws "on the books" from pursuing any policy that Bush wants, this warning from Gonzales is not to be taken lightly. It's quite probable that he has already found a way to circumvent those laws and the Constitution and that reporters' calls are already being investigated, considering the fact that the NSA has those records at its fingertips.
"We don't engage in domestic-to-domestic surveillance without a court order," Gonzales said, under a "probable cause" legal standard.
Of course, there is absolutely no way to confirm that trolling of reporters phone call records would be based on probable cause because the program is classified. Therefore, the existence of a court order cannot be proven either.
When the former head of the NSA General Michael Hayden, who is now Bush's nominee for CIA director, doesn't even understand the 'probable cause' requirement of the fourth amendment, how secure should journalists really feel?
Landay went on to ask his question, which was whether the NSA, by bypassing the special court mandated by the Foreign Intelligence Surveillance Act, had "crafted a detour around the FISA court by creating a new standard of 'reasonably believe' in place of 'probable cause.'" Hayden's response returned to the issue of the Fourth Amendment:
"I didn't craft the authorization. I am responding to a lawful order, alright? The attorney general has averred to the lawfulness of the order. Just to be very clear, okay--and, believe me, if there's any amendment to the Constitution that employees at the National Security Agency is familiar with, it's the Fourth, alright? And it is a reasonableness standard in the Fourth Amendment. So, what you've raised to me--and I'm not a lawyer, and don't want to become one--but what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is 'reasonable.' And we believe--I am convinced that we're lawful because what it is we're doing is reasonable."
By showing that he was unaware of the "probable cause" language in the Fourth Amendment, Hayden revealed that his insistence that it was legal for the NSA to conduct warrantless surveillance was not based on even a nodding familiarity with the constitutional issues involved.
Hayden repeated his confused stand on the probable cause issue during his hearings this past week. He said that he relied on the NSA's lawyers to assure him that the NSA spying was lawful. Those lawyers, however, were certainly not on solid legal ground as indicated from the variety of legal opinions in the public square about this program - which are far from being unanimous.
There is no doubt that criminal behaviour at whatever level must be investigated and prosecuted. There is doubt, however, that an Attorney General like Gonzales - who found a way to circumvent international laws against torture while he was Bush's counsel - would not resort to the same types of justifications to find extra-legal ways to accomplish his mission to haul journalists into court by using their phone records to reveal their sources.
And the problem, in the end, is that since the administration won't even confirm that the NSA domestic spying program exists, lawyers for journalists who would oppose the evidence based on records discovered using the NSA's data mining would be blocked by 'national security concerns' from even examining the methods used to obtain them.
This administration has already shown that it will use the national security defense to stop anyone who seeks justice. They've successfully managed to have lawsuits by two torture flight victims, Arar and el-Masri, dropped on those grounds this year. Therefore, once a journalist is brought up on charges, they will virtually have no legal defense available to them. And, in the scheme of wrongs perpetrated against the people in America, that is perhaps the most egregious.
UPDATE: Crooks and Liars has the video of Gonzales' remarks.
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