Bush should steer clear of fight with press

WASHINGTON -- In addition to all his other problems, President Bush now has an attorney general who seems not to believe in the First Amendment and wants to make criminals out of journalists who print "classified" information of an embarrassing nature.
"There are some statutes on the books which, if you read the language carefully, would seem to indicate that that is a possibility," Attorney General Alberto Gonzales said on national television recently. "That's a policy judgment by the Congress in passing that kind of legislation. We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected."
Do you really want to pick that fight, Mr. President? Haven't you enough problems without pursuing action that would have serious constitutional implications?
If you or Gonzales actually believe the Espionage Act of 1917 was designed to bring reporters to court for printing stories about government actions, classified or not, that may be illegal, you are as deficient in your understanding of our democracy as an increasing number of Americans have begun to think. The law was aimed mainly at spies during World War I, and while there are two pending cases against lobbyists for revealing to Israeli organizations information that they had been given, it never has been used against reporters.
There is, after all, a huge question about the legality of the revelations that has prompted Gonzales' imprudent stance -- the disclosure that NSA has been eavesdropping on the international calls and emails of Americans without the requisite court approval demanded in a law passed by the same legislative body whose policy decisions Gonzales claims his Justice Department has an obligation to enforce. It would appear that the president and by fiat the attorney general would pick and choose the laws they have to uphold.
Illegal action
And, oh yes, is it appropriate to ask under the circumstances whether a potentially illegal action can be legitimately classified? Wasn't that really what the Pentagon Papers were all about, a historic study of U.S. actions in Vietnam that was classified to hide a series of internationally illegal and embarrassing acts, including the CIA's engineering of the assassination of Vietnam President Ngo Dinh Diem? Even the much-maligned Nixon administration knew better than to challenge the publication of the papers on the grounds of the Espionage Act after the Supreme Court had established the act of printing them was constitutionally protected.
While Gonzales said he respected the protection of the press under the First Amendment, he said that "it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity." Good, Gonzales. But doesn't that mean that there are many Americans who would like you to determine the criminality of warrantless wiretapping or the National Security Agency's inspection of millions of their telephone records?
Few presidents in recent memory have faced such a swell of justified discontent. The decision to use the terrorist attack of Sept. 11, 2001 as justification for every questionable curtailment of civil liberties from the Patriot Act to the aforementioned eavesdropping is without precedent even when this country was engaged in two world wars. Why should terrorists plot to upset our rights when this administration seems to be doing the job for them?
If this seems over the top, so be it. But every day brings some White House authorized action that on the surface skates close to if not across the edge of legality. Legitimate state secrets should have some measure of protection without a doubt. But some disclosures are the price we pay for an open and free society.
Constitutional brouhaha
The last thing this president really needs with the polls trending from bad to worse and the distinct possibility of spending the last two years of his administration with an unfriendly, vindictive Democratic Congress is to become embroiled in a constitutional brouhaha with the press. Nor should he allow members of his Cabinet to drag him into positions that he cannot defend by threatening steps that have no precedent in American history. Even the censorship rules of World War II were less disruptive to a free press.
A press that would ignore the establishment of overseas prisons by a U.S. government agency; that would turn its head away from evidence of warrantless wiretapping, and that refused to challenge the morally reprehensible treatment of prisoners would fail miserably in its assigned role in this democracy. Thank goodness it has not done so despite the threats.
Dan K. Thomasson is former editor of the Scripps Howard News Service.