For years, this space has been arguing – railing, really – that the ideological and legal currents unleashed by America’s response to the 9/11 attacks have been leading us down the road to dictatorship: see here, here, here, and here. Back in those halcyon days, circa 2007 and much earlier, it was easy to dismiss such charges as the mental effluvia of the somewhat overwrought libertarian imagination: after all, if we’re headed for an authoritarian order of Orwellian proportions, then where are the Thought Police?
What we didn’t know was that they were lurking in the woodwork all along – spying on us, recording our phone calls, scooping up our emails, and tracking our every move. We didn’t know about the National Security Agency’s data dragnet: we hadn’t heard of PRISM, or any of the other programs that allow government snoops to sniff out dissidents and other "subversives" who might be "linked" to "terrorism."
Don’t say we didn’t warn you.
I take very cold comfort in having been right about this, because, for one, it’s actually much worse than I thought it would be. In the wake of the Snowden revelations, and the government’s reaction, we have an ominous new development in the works, one I never foresaw: the criminalization of journalism.
The Washington Post reported, the other day, on an exchange between FBI Director James Comey and his Republican interlocutor, Rep. Mike Rogers of Michigan, reproducing the relevant and most striking part in full. The occasion was Tuesday’s session of a hearing of the House Intelligence Committee on "Worldwide Threats," with Rogers questioning Comey on the Snowden documents:
"REP. ROGERS: You – there have been discussions about selling of access to this material to both newspaper outlets and other places. Mr. Comey, to the best of your knowledge, is fencing stolen material – is that a crime?
DIRECTOR COMEY: Yes, it is.
ROGERS: And would be selling the access of classified material that is stolen from the United States government – would that be a crime?
COMEY: It would be. It’s an issue that can be complicated if it involves a news-gathering and news promulgation function, but in general, fencing or selling stolen property is a crime.
ROGERS: So if I’m a newspaper reporter for – fill in the blank – and I sell stolen material, is that legal because I’m a newspaper reporter?
COMEY: Right, if you’re a newspaper report[er] and you’re hocking stolen jewelry, it’s still a crime."
You can see where this is going, but let’s stop for a moment and check Comey’s premises: who has stolen what from whom? This is the real question at the heart of the debate over the Snowden revelations, and as usual the inhabitants of that Bizarro World known as Washington, D.C., have turned reality on its head. It was Snowden who blew the whistle on the real thieves: the NSA and the government officials who presided over the wholesale hijacking of our privacy in brazen violation of the Fourth Amendment. If anyone is "hocking" "stolen property" it is the government, which has contracted out its illegal surveillance programs to private vendors who profit from Washington’s crimes against the American people.
In the alternate universe inhabited by Comey and Rogers, the criminal is the victim, and any witnesses to the crime are denounced, hunted down, and jailed. Those witnesses include not only Snowden but also his alleged "accomplices," i.e. the journalists who exposed the NSA’s crimes to the world. Rogers, an instinctive authoritarian, homes in on the "legal" logic that would permit the arrest of Glenn Greenwald and/or Laura Poitras at the airport should they be so foolish as to re-enter the land of their birth:
"ROGERS: And if I’m hocking stolen classified material that I’m not legally in possession of for personal gain and profit, is that not a crime?
COMEY: I think that’s a harder question because it involves a news-gathering functions – could have First Amendment implications. It’s something that probably would be better answered by the Department of Justice."
Comey doesn’t want to entangle the administration in a debate that would force them to come out of the closet as basically backing Rogers’ argument in principle, but the pro-NSA zealot with deep ties to the military-industrial lobby is far less shy:
"ROGERS: So entering into a commercial enterprise to sell stolen material is acceptable to a legitimate news organization?
COMEY: I’m not sure I’m able to answer that question in the abstract.
ROGERS: It’s something we ought to think about, is it not?
Yes, by all means let us think about the question Rogers is raising: now that the government has effectively abolished the Fourth Amendment, shouldn’t they get on with the job of demolishing the First? After all, why not jettison even the pretense of being a liberal democracy and get right down to the real nitty gritty, as we used to say:
"ROGERS: And so if there are accomplices in purveying stolen information, shouldn’t we be concerned about that?
COMEY: We should be concerned about all the facts surrounding the theft of classified information and its promulgation.
ROGERS: Hmm. And interesting that over the – again, the Munich Conference, where we had individuals tell us that in fact there are individuals who are saying to be in possession of this information who are eager to sell this information to other news organizations, would that be a legitimate exercise on behalf of a reporter?
COMEY: That’s a question – now you’re getting from the general to the particular. I don’t want to talk about the case in particular because it’s an active investigation of ours.
ROGERS: It’s an active investigation for accomplices brokering in stolen information?
COMEY: We are looking at the totality of the circumstances around the theft and promulgation."
In any authoritarian regime, reporters who don’t belong to the David Gregory school of journalism are always considered "accomplices": that’s because their adversarial position in relation to the political class, by the standards of today’s Washington, is inherently treasonous. Any journalist who takes his or her job seriously is, in the post-9/11 era, a suspect in a potential crime against the State.
Which brings us to the question of why Greenwald has so far hesitated to return to America from Brazil where he’s been living with his partner. I say so far because Salon is reporting that he’s determined to come back this April to receive the Polk award for journalism.
Rogers’ threat is clearly aimed at Greenwald: yes, that’s what it’s come to – a native born American who dares speak truth to power cannot set foot on US soil without fear of arrest. In a Bizarro World inversion of the cold war era, our dissidents are going to Moscow, where they languish in exile hoping for a better day. And a broad coalition extending from Cass Sunstein to a Republican congressman from Michigan is demanding a revision of the First Amendment that would render it impotent.
What’s next – concentration camps for dissidents? Supreme Court Justice Antonin Scalia thinks so:
"U.S. Supreme Court Justice Antonin Scalia told law students at the University of Hawaii law school Monday that the nation’s highest court was wrong to uphold the internment of Japanese-Americans during World War II but that he wouldn’t be surprised if the court issued a similar ruling during a future conflict.
"Scalia was responding to a question about the court’s 1944 decision in Korematsu v. United States, which upheld the convictions of Gordon Hirabayashi and Fred Korematsu for violating an order to report to an internment camp.
“’Well, of course, Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again,’ Scalia told students and faculty during a lunchtime question-and-answer session.
"Scalia cited a Latin expression meaning ‘In times of war, the laws fall silent.’
"’That’s what was going on – the panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification but it is the reality,’ he said."
Interestingly, Scalia makes the key connection between what’s going on abroad, i.e. our foreign policy of perpetual war, and the state of civil liberties at home, which is more than one can say about many if not most of his conservative admirers.
When I was a wee libertarian lad, we used to have a slogan, the kind you put on stickers and leave in public places: SAVE YOUR CANDLES, THE DARK AGES ARE COMING! Back then, in the 1960s, if anyone had suggested that by 2014 we’d be living in the kind of country where one’s every communication is recorded and stored – the kind where journalists fear to report the truth about what their government is doing, and where the abolition of the First Amendment is being openly considered by elected officials – they would’ve been ridiculed as purveyors of pure speculative fiction. And with no small justification: in retrospect, however, it turns out that old bumper sticker was prescient as hell.
NOTES IN THE MARGIN
You can check out my Twitter feed by going here. But please note that my tweets are sometimes deliberately provocative, often made in jest, and largely consist of me thinking out loud.
I’ve written a couple of books, which you might want to peruse. Here is the link for buying the second edition of my 1993 book, Reclaiming the American Right: The Lost Legacy of the Conservative Movement, with an Introduction by Prof. George W. Carey, a Foreword by Patrick J. Buchanan, and critical essays by Scott Richert and David Gordon (ISI Books, 2008).
You can buy An Enemy of the State: The Life of Murray N. Rothbard (Prometheus Books, 2000), my biography of the great libertarian thinker, here.