A specter is haunting Congress — the specter of rational thinking

Just when I thought all hope was lost, a real, live politician in the United States House of Representatives made a reasoned, responsible statement today. I’d almost forgotten that’s what they were there to do. Anyway, it was John Conyers (D-MI), chairman of the House Judiciary Committee, who, in his opening remarks, said the only thing that made sense, which is the following (as found here, with slight edits):

…In the 1989 case of Texas v. Johnson, the Supreme Court set forth one of the fundamental principles of our democracy:  “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

That was Justice William Brennan, a man who understood the founding principles of our nation. Today, the Committee will consider the Wikileaks matter.  The case is complicated, and involves important questions of national security. And no doubt important subjects of international relations and war and peace will be invoked.  But fundamentally, Justice Brennan’s observation tells us almost everything we need to know. As an initial matter, there is no doubt that WikiLeaks is very unpopular right now. Many feel that the WikiLeaks publication was offensive. But being unpopular is not a crime, and publishing offensive information is not either. And the repeated calls from politicians, journalists, and other so-called experts crying out for criminal prosecutions or other extreme measures make me very uncomfortable.

Indeed, when everyone in this town is joined together calling for someone’s head, that is a pretty strong sign we need to slow down and take a closer look. That is why it was so encouraging to hear Jack Goldsmith, former Office of Legal Counsel head under President George W. Bush caution us all last week. Mr. Goldsmith wrote: “I find myself agreeing with those who think Assange is being unduly vilified. I certainly do not support or like his disclosure of secrets that harm U.S. national security or foreign policy interests.  But as all the hand-wringing over the 1917 Espionage Act shows, it is not obvious what law he has violated.”

America was founded on the belief that speech is sacrosanct, and that the answer to bad speech is not censorship or prosecution– but more speech. And so whatever you think about this controversy, it is clear that prosecuting Wikileaks would raise the most fundamental questions about freedom of speech, about who is a journalist, and about what the public can know about the actions of its own government. Indeed, while everyone agrees that sometimes secrecy is necessary, the real problem today is too much secrecy, not too little…

Furthermore, we are far too quick to accept government claims about risks to national security, and far too quick to forget the enormous value of some national security leaks…And then on the other side of the ledger, there is no need to go all the way back to the Pentagon Papers to find examples of national security leaks that were critical to stopping government abuses and preserving a healthy democracy. They happen all the time…

…To close, the desire to respond to a controversy like this with new legislation is very understandable. And as many panelists will testify, the Committee should take a close look at these issues and consider whether changes in law are needed. But let us not be hasty, and let us not legislate in a climate of fear or prejudice. For, in such an atmosphere, it is our constitutional freedoms and our cherished civil rights that are the first to be sacrificed in the false service of our national security.

Gulp. I’ll admit it: it is a relief sometimes to know we don’t pay these guys for nothing. (Then again, I don’t live in Michigan, so a lot of good he’s doing me.) Conyer’s point, by the way, is one only reluctantly (and finally) mentioned by The New York Times, which sheepishly inserted a brief aside as to its similar role to WikiLeaks in the Cablegate affair, stating: “By bringing a case against Mr. Assange as a conspirator to Private Manning’s leak, the government would not have to confront awkward questions about why it is not also prosecuting traditional news organizations or investigative journalists who also disclose information the government says should be kept secret — including The New York Times, which also published some documents originally obtained by WikiLeaks.”

This just makes me want to write an entire other post on the politics of journalism. The New York Times, which devotes a mind-numbingly large amount of time (and newspaper space) to openly fretting about its industry’s impending demise, has been something quite other than equitable in its coverage of Julian Assange. Much like The National Enquirer‘s Pulitzer-buzz-spawning reporting on John Edwards’ affair with his videographer, this massive WikiLeaks scoop once again highlights the journalistic complacency of The New York Times.

As it turns out, it’s good practice for when they start charging for online content, at which point everyone will head for the exits en masse and go back to watching The Daily Show, which — strangely enough — actually takes the news seriously.


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