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Fox and Furious Friends Wanted DOJ to Prosecute the New York Times

May 22, 2013

Throughout the tenure of George W. Bush, many of us to the left of center warned that unchecked presidential power was putting Americans' civil liberties in jeopardy. Now with the revelations that the Obama Justice Department seized AP phone records in one leak case and monitored a reporter's communications in another, some on the right are finally furious about infringements of our First and Fourth amendment rights. Apparently, all it took for this belated conservative change of heart was a Democrat in the White House and a Fox News reporter in the government's crosshairs. After all, when Americans learned of President Bush's illegal warrantless wiretapping by the NSA, many of the same voices called for the prosecution of the New York Times. Then, Republican Senator John Cornyn warned in a talking point regurgitated by myriad conservative mouthpieces, "None of your civil liberties matter much after you're dead."
Word that the Justice Department obtained emails and phone records for James Rosen of Fox News after the publication of his June 11, 2009 story which references CIA findings from "sources inside North Korea" produced a torrent of criticism from the New York Times, the Washington Post and many other liberal voices. Over at Fox News, anchors and guests announced they were "appalled" at the "dangerous lunacy" of DOJ snooping on Rosen, calling it an unindicted co-conspirator "a huge assault on the First Amendment" (Charles Krauthammer) and "Big Brothers stuff" (Sean Hannity). Fox News executive vice president Michael Clemente issued a statement declaring:

"We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter. In fact, it is downright chilling. We will unequivocally defend his right to operate as a member of what up until now has always been a free press."

Of course, when Republican George W. Bush sat in the Oval Office, the shoe was on the other foot. And Fox News and its right-wing allies wanted to kick the New York Times' ass with it.
On December 16, 2005, Eric Lichtblau and James Risen of the New York Times reported that President Bush had ordered the National Security Administration (NSA) to intercept Americans' overseas electronic communications without first obtaining a warrant as required by the 1978 Foreign Intelligence Surveillance Act (FISA). Three days later, President Bush raged about what he deemed "a shameful act" that is "helping the enemy" and added "the Justice Department, I presume, will proceed forward with a full investigation." On December 30, 2005, that investigation was announced, when White House deputy press secretary Trent Duffy told reporters that the Justice Department department "undertook this action on its own" and that Bush had only learned about it from senior staff earlier in the day. Then in May 2006, Attorney General Alberto Gonzales suggested on ABC News' This Week that the New York Times itself could face prosecution over its publication of the NSA domestic surveillance program story:

On the talk show, when asked if journalists could be prosecuted for publishing classified information, Gonzales responded, "There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility."
He was referring to the 1917 Espionage Act, which made it a crime for an unauthorized person to receive national defense information and transmit it to others.

The next month, Deputy U.S. Attorney Matthew W. Friedrich told the Senate Judiciary Committee that the Bush DOJ thought that journalists or "anyone" could be prosecuted under the Espionage Act for publishing classified information.
As it turned out, those words came as music to the ears of Fox News and the conservative commentariat. After all, they had been cheerleading for the Bush administration to prosecute the New York Times for months.
Their voices were numerous and loud. Right-wing blogs like Powerline, Red State and Riehl World News published pieces with titles like "Prosecute the New York Times" called for charges to be brought against its editor Bill Keller and journalists Lichtblau and Risen. Cliff Kincaid of Accuracy in Media demanded, "Quit wasting time, Mr. Attorney General. Bring forward the indictments." New York Congressman Peter King argued the Times had "compromised" the program and "violated the Espionage Act." King urged the attorney general to prosecute the "reporters, the editors who worked on this, and the publisher." While Brent Bozell accused the New York Times of "aiding and abetting the terrorist movement" and Melanie Morgan called the paper's reporting of the illicit NSA program, "treason, plain and simple," Fox News regular and Weekly Standard Bill Kristol explained:

"I think the Justice Department has an obligation to consider prosecution, and I think Congress can weigh in here, too, because The New York Times' rhetorical defense is well, we're exposing the Bush administration."

Commentary editor and later Romney campaign adviser Gabriel Schoenfeld agreed. In 2006, he claimed "There are some statutes on the books, which, if you read the language carefully, would seem to indicate that that is a possibility." After news of the FBI's raid on whistleblower Thomas Tamm's home in the summer of 2007, Schoenfeld again called for the scalps of Risen and Lichtblau:

"With the investigation making progress, the possibility remains that even if the New York Times is not indicted, its reporters - James Risen and Eric Lichtblau - might be called before the grand jury and asked to confirm under oath that Tamm, or some other suspect, was their source. That is what happened to a whole battalion of journalists in the investigation of Scooter Libby in the Valerie Plame fiasco.
If Risen and Lichtblau promised their source confidentiality, they might choose not to testify. That would potentially place them, like Judith Miller in the Libby investigation, in contempt of court and even land them in prison."

For Fox News host Stuart Varney and his guest John Podhoretz, that sounded like a great idea. Just days after the NSA story was published, Varney told Fox News viewers:

"Should the New York Times be tried for treason? In a scathing editorial today, the New York Post says the New York Times is badly in need of adult supervision and asks if the newspaper is fighting against the war on terror by exposing top secret programs... John, I just used a very strong word there. I used the 'treason' word. Would you use it?"

Radio host Hugh Hewitt and Senator John Cornyn doubtless would have been comfortable with it. "This is a violation of the Espionage Act for people to leak this kind of information," Cornyn complained in September 2006, adding "It's subject to debate in legal circles, as you know, Hugh, whether it's an indictable offense to publish it."

"Unfortunately, some people feel eminently justified in reporting anything and everything, without regard to the negative consequences on national security. And I think that's a real, frankly, very disturbing."

Now that it is Fox News reported James Rosen who is in the spotlight for his role in possibly exposing U.S. intelligence assets in North Korea, conservatives' tune has changed about reporters doing their jobs. Well, not all conservatives. For its part, the blog Flopping Aces called for some consistency:

"It's clear that this is a political vendetta against Obama's enemies and it represents an abuse of the justice system as well as a suppression of journalistic investigation but let's harken back a ways. If Rosen's actions are a violation of the Espionage Act, several New York Times reporters should already have been imprisoned, if not executed."

After all, as Senator John Cornyn used to claim, "None of your civil liberties matter much after you're dead."


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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