Free Press

A New Assault on Freedom of the Press

Obama's policies are soft compared to what Rep. Mike Rogers wants.

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Last week, a little noticed clash took place on Capitol Hill involving the fundamental values underlying the First Amendment. The issue was the lawfulness of publishing the secrets that were given to reporters by former National Security Agency (NSA) contractor Edward Snowden. The disputants were Rep. Mike Rogers (R-Mich.) and FBI Director James Comey.

Rogers is the chief congressional apologist for the massive NSA spying apparatus. He is the current chair of the House Permanent Select Committee on Intelligence, and in that capacity, he is one of the dozen members of Congress from both houses who were privy to much of the NSA spying before the Snowden revelations. In our perverse post-9/11 world, federal law actually permits this Gang of 12 to substitute for all 535 members of Congress with respect to knowledge of intelligence secrets.

Since 9/11, the Bush and Obama administrations have succeeded in claiming they have congressional consent for the massive NSA spying by merely getting a consensus from the Gang of 12. There is, of course, no provision in the Constitution for the substitution of all 535 members of Congress with a select group of 12 of them, but Congress and Presidents Bush and Obama have gone along with this. The kicker is that all members of the Gang of 12 have been sworn to secrecy and threatened with prosecution if they reveal to anyone, including other members of Congress, what the NSA and other intelligence agencies reveal to them. What kind of representative democracy is that?

Rogers is one of the chief architects and cheerleaders of this post-9/11 unconstitutional version of representative democracy. This is the same system that sends the NSA to judges of the Foreign Intelligence Surveillance Court for search warrants that purport to authorize the NSA to capture the content of every text message, email, telephone call, bank statement, credit card bill and utility bill of everyone in America. This apparatus, too, involves another Gang of 12: the 12 federal judges on the FISA court. They suffer from the same secrecy kicker as Rogers' gang does: They, too, are sworn to secrecy and have been implicitly threatened with prosecution if they violate their oaths.

These judges issue search warrants based on the NSA's unchallenged wishes, not based on the constitutional requirement of particularly identifying for the court the target of the search and then presenting evidence to the court that constitutes probable cause of criminal behavior on the part of the target. This, too, is unconstitutional, as it is the product of a congressional alteration of the Constitution. As most schoolchildren know, Congress cannot alter or amend the Constitution; only the states can. Yet, by instructing FISA judges to issue search warrants that do not meet the constitutional identity of target and probable cause standards, Congress has substantially altered the Constitution, and the judicial Gang of 12 has gone along with this.

As one of the architects of all this domestic spying, and as one of the believers that the public should be kept in the dark about it, Rogers has not been happy with the Snowden revelations. Snowden subscribed to the same oath of secrecy as the two Gangs of 12, but he also swore—as have both Gangs of 12—to uphold the Constitution.

To Snowden, the people have a fundamental right to know that their government has cooked up the most massive secret violation of civil liberties in the nation's history, and his oath to uphold the Constitution compelled his revelations. To Rogers, Snowden must be a traitor or a spy.

Even the Obama administration has not bought that argument, as it only charged Snowden with the delivery of classified materials to unauthorized persons. It did not charge him with treason (waging war on the United States or giving aid and comfort to enemies of the United States) or spying (giving classified secrets to enemies of the United States).

Frustrated that Snowden is apparently living freely in Moscow, Rogers summoned the FBI director before his House committee to float a truly novel and pernicious theory of First Amendment law. At that hearing last week, he attempted to persuade Comey to accept his idea that publishing classified secrets is a crime if the publisher was paid for his work. So, if the owners of and reporters at The Guardian of London or The New York Times or The Washington Post, who publicly revealed the secrets Snowden gave them, were paid for their work, the Rogers argument goes, they, too, could be prosecuted for espionage.

Rogers is not a lawyer, but he is an ex-FBI agent. He should know the law, but it was necessary for Comey to tutor him. The law is clear and was stated by the Supreme Court in the Pentagon Papers case, and Comey publicly reminded Rogers of this: If classified materials are of interest to the public, their publication is protected.

Stated differently, it matters not how the journalist acquires the classified materials or whether the journalist and his bosses are paid for his work. If the classified materials are newsworthy, they can be published, and no one can be sued or prosecuted for doing so.

In the clash between government secrecy and public transparency, the Framers placed a value judgment in the First Amendment. Since the press is the eyes and ears of the public, and since the public needs to know what the government is doing so it can make informed decisions when electing people to the government, publishers and reporters are immune from criminal prosecution and civil liability for lifting the veil on the governments' secrets. An informed public is more likely to make better decisions than an ignorant one.

I am happy that Comey did not fall for Rogers' ignorant argument, and I am happy, too, that the argument will fall on deaf ears. In a free society, knowledge is superior to ignorance. Politicians who would criminalize publishing the truth should be voted out of office.

NEXT: Brickbat: The Few, the Proud

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  1. People knowingly elected an ex FBI agent? That’s just asking for all kinds of bad juju.

  2. Original comments removed!!

    demanding that publishing classified secrets be considered a crime if the publisher was paid for his work

    So, just publish them in a blog and then quote the blog in your paper’s article.

  3. “In a free society, knowledge is superior to ignorance. Politicians who would criminalize publishing the truth should be voted out of office”

    In a free society, there would be no office for individuals to control others, and individuals would face a free well armed populace and the consequences of violating individual rights. You have to wait years before you can attempt to vote someone out whom is robbing or committing acts which violate natural law. Would you wait four years to finally expel a robber from your home? Would you wait four years to finally get someone in power that might not come in and steal your food? I doubt individuals would even vote to let a robber into their home Yet they do when it comes to politicians.

    Governments never increase freedom and liberty. They slowly devour them over time, and attempt to make themselves look good by restoring a freedom, or reducing the number of crimes committed while still fleecing and murdering (when necessary to protect their institution) the people. The individuals and the politicians are shielded from consequences, and must further weaken those whom support freedom and liberty through disarmament. They must know everything about the people through mass data collection, especially their opposition. This way, they can pounce on their prey like a lioness in wait. Imagine how easier it would be if the lioness knew every move a heard of animals made. Locations, what time they ate, and where they gathered.

    1. In a free society, there would be no office for individuals to control others, and individuals would face a free well armed populace and the consequences of violating individual rights.

      Are you suggesting these representative should be violently removed from office? That seems to be contrary to a civilized society.

      1. George III’s colonial governors would agree.

      2. OK, leave them in office. Just impale them on sharp stakes in the public square.
        Worry about replacing them when their absence proves problematic. They were probably surplus to requirements in the first place.

    2. Officer, am I not free to gambol across plain and meadow?

      /White Idiot

    3. Well we are supposed to be able to recall elected officials right?

      Of course that would require a well-educated and informed electorate… tell me again about these government schools?

  4. Mike Rogers seems to be a prime target for a primary. Any prospects?

    1. Don’t know about primary challenges but he, according to Wikipedia, he won the seat in 2000 by 111 votes. It used to be Debbie Stabenow’s seat but she had vacated it so it was an open seat.

      Last October he said: You can’t have your privacy violated if you don’t know your privacy is violated.

      1. And, I suppose, “You can’t have terminal cancer if you don’t know you have terminal cancer.”

        Fuck Rogers.

      2. —“It used to be Debbie Stabenow’s seat”—

        NO. It used to be the seat held by Debbie Stabenow. Big difference.

        1. Yes, good point.

    2. According to Ballotpedia, there is not currently a primary challenge to Rogers. There is, of course, a primary challenge to Justin Amash.

      1. well, of course, there is. Repubs are nothing if not consistent – giving lip service to limited govt but usually acting to expand it.

        1. Show me a compassionate conservative politician, and I’ll show you a big government liberal who opposes abortion.

          1. Oh, that’s very good.

        2. Its worse than that, wareagle. The establishment Repubs would rather a seat go Dem than Tea Party. They actively undermine their “own” candidates when necessary to keep a seat in the TEAM BE RULED camp.

      2. There is, of course, a primary challenge to Justin Amash.

        I am Jack’s complete lack of surprise.

  5. the Gang of 12 have been sworn to secrecy and threatened with prosecution if they reveal to anyone, including other members of Congress, what the NSA and other intelligence agencies reveal to them. What kind of representative democracy is that?

    It’s *meta*-democracy, Judge!

  6. How f*cked up is it that the head of the FBI is defending our rights against Congress?

    1. Really, really fucked up.

  7. Rogers represents my district. I’m sorry.

    1. It’s okay John Boner represents mine. We can have a competition to see which one hates the Constitution more!

      1. You guys don’t have a CHANCE!
        Pelosi.

        1. Sorry, Maxine Waters trumps all.

  8. Does willfully subverting the constitution count as Treason? Is that waging war on the United States?

    Maybe Rogers is right and we should be trying people for Treason. But in that case he might want to move to Russia before the trials start. Maybe while he’s there Edward Snowden can become Ed the Bounty Hunter and bring Rogers to justice!

  9. “Are you suggesting these representative should be violently removed from office? That seems to be contrary to a civilized society.”

    It appears you are trying to infer the want to be free must utilize violence, while ignoring the violent state itself. Are you suggesting we live in a civilized society? The evidence is to the contrary.

    Suppose individuals came in your house, and took half of everything you owned against your will. You let them know you do not consent to such acts of thievery and aggression. They then threaten you with further confiscation, imprisonment and if you resist, their armed guards will kill you. That would be a chaotic household. We are surrounded by such chaos and uncivilized acts daily, yet somehow folks lie to themselves and believe all is well, because its the government is protecting their freedom.

    The politicians should be told to go home. Individuals should revoke their consent. This is nonviolent. So how you can attempt to equate peaceful actions as going against being civilized holds no water. I can tell you what party would use violence. That would be the state. To preserve their power, they would use force and threats or acts of violence against anyone whom revoked their consent to be governed. The state has a long history in using violence to maintain power, so what would be different this time around?

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