Fundamentally Illegal

J. Edgar Hoover once said, "Justice is incidental to law and order," and this maxim might apply as well now as back in Hoover's day, but even Hoover might be surprised were he to visit the so-called new normal, and see just how far from the rule of law even the best legal minds have come.

As the past 50 years have shown, the first casualty of war is freedom of the press. The firing of war correspondent Peter Arnett, a reporter with 40 years of experience and a Pulitzer Prize under his belt by NBC, and National Geographic back in 2003 may be seen as a turning point. Coverage of war, whether it be in the gulf or in the middle east, would never be the same.

When Arnett reportedly spoke disparagingly of the Iraq war on state-run Iraqi TV, he unwittingly acted as a catalyst for the current clampdown on the press at military commissions trials of detainees at Guantanamo Bay.

On Monday, August 2nd, as McClatchy reports, journalists who have been covering the trials at Gitmo will have their first opportunity to air their grievances against some of the most draconian restrictions imposed on them. They will get to vent their rightful indignation over being subjugated by a Pentagon on steroids, one that resembles an animal in captivity more than the prime mover of an empire.

And, what a circus it has been not merely for many of the "enemy combatants," 90% of whom are now believed to be no more members of al Qaeda than of the Crips, but for reporters who have been banned from tribunal proceedings and also, as according to McClatchy, who are routinely denied access to "essential and unclassified court records."

While the ban has been lifted for all but one journalist, McClatchy joins the New York Times, The Washington Post, the Wall Street Journal, Reuters, the Associated Press, and others in a lawsuit against the Pentagon which holds the ban as unconstitutional as a violation of First Amendment rights.

Ironically, the Pentagon's move also breaks the law that set up military tribunals in the first place, the Military Commission Act which asserts that only a judge has the power to bar a reporter from covering military trials.

Attorney David Schulz, who represents McClatchy and the other newspapers in their legal action, says that the proscriptions against Gitmo press coverage reflect "a fundamentally illegal system."

Moreover, on Monday, journalists will insist that the Pentagon allow them the freedom to write and broadcast information that is already public knowledge, or that doesn't compromise the confidentiality of protected testimony, surely a reasonable demand except in a climate of fear and repression.

9/1l, and "national security" have been used as a pretext to turn newspapers and the mainstream media into mass propaganda-making machine. Peter Arnett, whose professional banishment had as much to do with being disliked by the Bush dynasty, and his prescience while interviewing bin Laden four years before the Twin Towers fell, as it did with anything he may have said in his brief appearance on state-run Iraqi television, but he wasn't to be the only victim of openly speaking out against the war in Iraq, or the administration in charge.

Another 40 year veteran of broadcast journalism, Dan Rather, would follow Arnett three years later, and be forced out of CBS after 60 Minutes ran a story about President George W. Bush's national guard service in Vietnam. While many defend CBS's move by claiming Rather was sloppy about authenticating his documentation, undoubtedly the impetus for his resignation came from the same source that called Arnett a "propagandist," George H.W. Bush. There are others who contend that Rather's ratings went south, but bottom line: Dan Rather, like Peter Arnett before him, made a powerful enemy of the Bush clan.

Arguably, it certainly wouldn't appear that the Pentagon is micromanaging the press given the release of "Top Secret America," The Washington Post's last week, a series showing how counter-terrorism now ranks up there with the construction of prisons as a cottage industry for the Department of Defense. If nothing else, WaPo's series shows, while the private sector is hurting, federal employees, especially spooks, have unprecedented job security. This would make J. Edgar Hoover proud.

Reportedly, it took two years to complete "Top Secret America" with the help of a dozen journalists. More than likely, the articles about intelligence were screened by intelligence before being cleared for publication. After all, this was not a leak, but a timed release intended to simulate transparency. The metastasizing of counter-terrorism arsenal is no more "breaking news" than the report of mineral riches found in Afghanistan, nor is this the first time the Defense Department has tried to control how newspapers cover a war.

In the days right after the invasion of Iraq, according to an article in the New York Times, Pentagon officials routinely met with news analysts of major U.S. papers to ensure that everybody was on the same page, and onboard as to how to massage the war for maximum efficacy. Yes, that's it, in other words, how to most effectively propagandize, or to "spin" which is a way to spin propaganda. What's different now is that massage is no longer on the table, but has been replaced by elimination of coverage altogether. The number of casualties in Iraq and Afghanistan is a footnote to most primetime news broadcasts, if it appears at all. There is another war that is constantly fought---the war for TV news ratings.

Why then isn't suppression of information itself covered by the press more than it has been? Isn't it sexy enough? It may have something to do with the fact that most classified, or restricted information has to do with active combat, thus if every article dealing with war has to be massaged by the Pentagon, one would essentially need permission from the Pentagon to cover censorship by the Pentagon; an enterprise strictly worthy of Sisyphus.

Anyone who gives a flying fajita about freedom of expression in this country will want to watch what happens when the press meets up with the Pentagon at Gitmo on Monday, as well as the outcome of the McClatchy suit.

One thing is for sure: the framers, when composing the First Amendment, never intended for freedom of the press to be mistaken with freedom to suppress.