When I first started reading about the Lawrence Franklin espionage scandal , I was intrigued and wondered, with the politicising of the DOJ, which has been evident to many of us in the blogosphere long before the current controversy, how this came to be. It seemed to me that the Bushistas would have kept this from coming to light or at least given it their best shot. But now Scott Horton from No Comment explains it perfectly. Not only did Abu Gonzales not care if Lawrence Franklin's deeds were revealed, he and Paul Mcnulty couldn't wait to get this into a courtroom. Follow me beyond the flip for why this matters.
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In his post The Plot Against the First Amendment, Horton lays it all out. I suggest reading the whole thing, but here are a few of the more salient points:
In June, a case is slated to go to trial in Northern Virginia that will mark a first step in a plan to silence press coverage of essential national security issues. The plan was hatched by Alberto Gonzales and his deputy, Paul J. McNulty—the two figures at the center of a growing scandal over the politicization of the prosecutorial process. This may in fact be the most audacious act of political prosecution yet. But so far, it has gained little attention and is poorly understood.
I, like many others I would assume, fell into the group of people for whom this was all "poorly understood". I remember following the "scandal" early on at TPM and thinking "Good, they need to get this guy." But I was only looking at the surface and not the implications even though Josh was nice enough to point them out with this link to an August 6, 2006 post on Secrecy News . The latest post at Secrecy News goes into some detail about the developing issues in the case and shares this interesting point:
Another "novel and distinctive" feature of the government proposal noted by Judge Ellis is that prosecutors were prepared to share classified evidence with jurors who do not hold security clearances. ("Interestingly, there is some authority for that," he observed.)
Now I ask you fellow Kossaks, does that sound like normal behavior from the DOJ who uses "National Security Issues" and not wanting to divulge anything that will damage National Security interests as an starting point to keep anything embarrassing out of the courts? No, I didn't think so either. But back to the inimitable Mr. Horton.
In the summer of 2005, Alberto Gonzales paid a visit to British Attorney General Peter Goldsmith. A British civil servant who attended told me "it was quite amazing really. Gonzales was obsessed with the Official Secrets Act. In particular, he wanted to know exactly how it was used to block newspapers and broadcasters from running news stories derived from official secrets and how it could be used to criminalise persons who had no formal duty to maintain secrets. He saw it as a panacea for his problems: silence the press. Then you can torture and abuse prisoners and what you will—without fear of political repercussions. It was the easy route to dealing with the Guantánamo dilemma. Don't close down Guantánamo. Close down the press. We were appalled by it." Appalled, he added, "but not surprised."
"Appaled but not surprised." My sentiments exactly.
By May 2006, Gonzales was on ABC's "This Week" program, convinced he had found the link. Could the United States gag the media to prevent its publication of classified information? "It depends on the circumstances." Gonzales explained, "There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility. That's a policy judgment by the Congress in passing that kind of legislation. We have an obligation to enforce those laws." This, to be sure, is the same Alberto Gonzales who appeared before the Senate Judiciary Committee and insisted in the face of an incredulous Senator Arlen Specter that the Constitution incorporated no guarantee of habeas corpus. He is an attorney general possessed of a copy of the Constitution which is strangely different from that ratified by the states in 1789 and amended to include the Bill of Rights in 1791. And he is the attorney general who felt that the limitations of FISA with respect to surveillance without warrants didn't matter, though he couldn't coherently articulate a reason why. (That, after all, is why you have John Yoo.) When he says "we have an obligation to enforce those laws," he means of course to enforce the laws the way he and the president secretly understand them.
We all know that secrecy has been a cornerstone of this administration's philosophy which made me one of the people who originally was cheering for Franklin to get what I thought was his comeuppance for trying to use AIPAC and secret information to influence US policy towards Iran. Here is where Horton gets to the meat of it all:
McNulty quickly concluded that the AIPAC case would provide the perfect opportunity for the Gonzales project—converting the Espionage Act into the equivalent of the British Official Secrets Act. The core of the extraordinary theory advanced by McNulty can be found in these words from one of its recent briefs:
The government respectfully submits that an 'ordinary person exercising ordinary common sense' [...] would know that foreign officials, journalists and other persons with no current affiliation with the United States government would not be entitled to receive information related to our national defense.
By this theory, any receipt by an unauthorized person of classified information and correspondence concerning it is converted into an act of espionage, and thus made prosecutable.
The object of this exercise has been broadly misunderstood by many who have followed it—and particularly by Iraq War critics who delight in a perceived slap-down of AIPAC. But this is tragically short-sighted. If the prosecution succeeds, the Bush Administration will have converted the Espionage Act of 1917 into something it was never intended to be: an American copy of the British Official Secrets Act. It is likely to lead quickly to efforts to criminalize journalists dealing with sensitive information in the national security sector, as well as their sources.
Let's imagine America with the Gonzales-McNulty contortion of the law in effect. We'd never know how the Bush Administration came to embrace torture as a tactic in the war on terror. We'd know nothing about the torture-by-proxy system developed with key administration allies such as Jordan, Saudi Arabia, and Yemen—not to mention the system of "blacksites" established by the CIA in Eastern Europe, the Middle East, and Southeast Asia. We wouldn't know that the administration was violating the FISA statute with a massive surveillance program. And to paraphrase Donald Rumsfeld, that's just the known unknowns.
This would be a dream world for Karl Rove and Alberto Gonzales. And a nightmare for the rest of us. And the AIPAC case could, if it succeeds, bring the nation much closer to its realization
So, once again, we see hoe the DOJ and the Bush Administration use whatever means necessary and whatever excuse fits the moment to achieve their desired end. Sometimes we can't go to trial because of "Official Secrets" and "National Security Interests", but all at once, when they see an opportunity to trample the First Amendment, that reasoning becomes quaint and they will do anything they can from sharing classified information with a jury and arguing in the affirmative for it while hanging out to dry a guy who was most likely acting on instructions from Feith, not spying in the DOD.