Proceed At Own Risk

Benghazi, IRS vs. Tea Party, Ryan Fogle, Justice Dept. vs. Associated Press.... is the Obama White House facing the same cascade of scandal that ensnared the Nixon, Reagan, and Clinton administrations in turn?  Perhaps, though one must subtract the Republican reality distortion field that surrounds at least two of the scandals.  It might also speak to a Justice Department that has always seemed incapable of serving the needs of justice (not just under the deplorable Eric Holder, but perpetually, harking back to the days of John Mitchell).

But the biggest source for scandal is the proverbial living-room elephant that neither major party dare name: the fundamental incompatibility between global imperial national-security state and bottom-up democracy, which has served as a drag on a constitutional republic since 1947.  A nation that runs according to the parameters of the National Security Act of 1947, NSC 68, Patriot Act, FISA Bypass, and various cryptography and atomic energy statutes, is simply not one that can be managed according to the rules of a democracy.

Since so many Americans enjoy specific perks from the U.S. maintaining its top-dog role in this game of King On the Mountain, I'm not too optimistic about taking this discrepancy to a direct vote.  A majority may well favor ditching the Bill of Rights in order to keep their toys,  But here's what I would demand: If the nation is going to accede to the existence of covert divisions of acknowledged agencies, or entirely covert agencies and operations, then those agencies must operate from the principle that the risk they take through plausible deniability remains with the agency itself.  Journalists cannot and must not be prosecuted by learning what they can of agencies' missions.

Frankly, I was a little surprised when the Obama administration did not attempt some form of prior restraint when pictures of sloppy Moscow CIA agent Ryan Fogle (above) appeared worldwide on May 14.  Of course such an effort would be futile in a Web and social network age, but it doesn't mean that the White House (particularly Attorney General Eric Holder) wouldn't try.  After all, the U.S. Supreme Court ruled in the mid-1980s that the Intelligence Identities Protection Act, which made it a crime to publish the names of CIA agents, was perfectly constitutional.  Later that same decade, the USSC said that covert agents with CIA, DIA, or Special Ops Command need not behave with any constitutional constraint when operating in other countries.  And all indications are that the USSC will approve the warrantless monitoring, operated globally by NSA and NRO on a 24/7/365 basis, and approved by Bush in 2002 and given ex post facto validation by Congress in 2008, under something called "FISA Bypass."

This impunity and arrogance to protect government from the eyes of probing media may have gotten a thumbs-up from all three branches of government, but it is still unconstitutional and wrong.  Eric Holder has prosecuted nine journalists under the Espionage Act.  The only time such prosecution is warranted is when a journalist is handing over information to a foreign power.  Publishing something the government wants to keep secret is not a crime - it merely means that the covert agency is not doing its job.  Whether the media source is WikiLeaks or a small Baltimore newspaper covering the headquarters of NSA, it is not legitimate to prosecute that source for leaking secrets.

Our laws actually are worse than that.  IIPA and FISA would criminalize the dissemination of secrets that originate with the government.  But under the Atomic Energy Act of 1954, all information on fusion energy and H-bomb technology is "born secret."  That means that if you figure out in your head the architecture of the H-bomb, the government can classify your brain.  Many people think that this law was tossed out after The Progressive won its H-bomb case in 1980, but all that happened was that the Justice Department dropped its prosecution when it became untenable.  The Atomic Energy Act still stands.  And sections of various cryptography acts passed over the last century make it a crime to publish information about electronic monitoring -- even if such information is informed speculation coming from a reporter, and is not based on government information.

The only way to move to a just society is to demand that covert agencies take their own responsibilities for maintaining secrets, and not get the Justice Department involved in prosecuting those that would expose government behavior.  The second and necessary step is to de-link all government branches and agencies from the strictures of the national security acts passed in the Cold War years of the 1940s and 1950s.  Oh, so you thought Obama was leading us in that direction?  Haven't seen much sign of Gitmo closing, have we?  Haven't seen any Espionage Act cases against journalists dropped, have we?

The global imperial infrastructure is not going to end tomorrow.   There are hundreds of U.S. military bases, intelligence bases, and embassies the size of military compounds, flung worldwide across every continent, which are not going to close tomorrow.  But the time to begin the process is now.  Ending the Republican and Democrat reliance on the national security state would help ease the budget crisis, and make our nation more genuine in its supposed interest in democracy.  But it sure is hard to see any interest in moving in this direction from either major party in mid-2013.