Out of My Mind

-- to fascism (there's no other word for it).

The leaders of American democracy clearly hate it and are using their best efforts to destroy it. An here's another example.

Anyone understand why the federal government is going against guys who reported on the BALCO steroid matter? WTF does that have to do with anything of any importance to the country fom a gevernmental perspective?

Nothing and everything.

By this way, a clearly illegal action of the government turns into a legal one by establihing precedent when this matter is not sufficiently and vigorously opposed. (In all liklihood, there will be some sort of compromise that will leave some sort of precedent for the next time.)

The piece that follows shows that rightwing yahoos have it completely wrong: Big Government is not per se the fear. It's not size of government but the sheer evil of our elected officials that is the danger. The worst Big Government can do (other than the fear of same enabling nutjobs to get elected) is to temporarily damage the economy. The anti-government leaders we have now have done, are doing and will do far worse amnd more lasting harm.

Example: Putting an active-service general in as the leader of the nation's primary ciilian intelligence agency.

Example: The 2000 election, more particularly the Supreme Court's decision. To overly simplify Justice Scalia's decision: "Of course this decision is legally wrong but it's the one five of us want to make."

Example: Read this and weep, from the New York Law Journal (sub only, maybe someone posted the whole thing for free on the web):

Communications and Media Law
James C. Goodale
05-30-2006

If it wasn't clear before that President George W. Bush has declared war on the press, it is now. Two reporters in San Francisco are facing possible jail time for refusing to disclose their source for a series of articles in 2004 about the "baseball" steroid investigation. Attorney General Alberto Gonzales has suggested he is "seriously" considering indictment of The New York Times. The FBI is reported to have been tapping reporter's phones. The FBI is seeking 20-year-old classified documents from the estate of Jack Anderson. The government is seeking to turn an 89-year-old law, The Espionage Act, into an official secrets act.

This is a chilling list. It is hard to believe it is coincidental.

Appearing on ABC's "This Week" on May 21, 2006, Attorney General Gonzales stated the administration's objectives: It will indict the press if necessary and send its reporters to jail when the administration thinks it's appropriate.

The New York Times won a Pulitzer Prize for publishing a story on the National Security Agency's (NSA) domestic wiretapping program. The Times got the story from a leak. Mr. Gonzales believes there is a law on the books that makes that publication criminal.

The law in question, §798 of the U.S. Code, primarily criminalizes the publication of codes. The Times did not publish codes. This law does not mention the First Amendment.

Under the First Amendment, Mr. Gonzales' interpretation of this law would be unconstitutional. It would have to show a publication "will surely result in direct, immediate, and irreparable damage to our Nation or its people."

Mr. Gonzales could not meet that test in the NSA leak case. He is apparently not a friend of the First Amendment.

Previous attorneys general recognized the First Amendment. Generally, they would not permit federal prosecutors to subpoena reporters for their sources.

The Justice Department set out guidelines many decades ago to prevent such subpoenas. Attorney General Gonzales has made all but a dead letter of these guidelines.

He personally authorized federal prosecutors to subpoena two reporters from The San Francisco Chronicle. He wants to know who the source was for their stories on steroids in baseball.

* * *

One suspects the real reason to threaten reporters with jail sentences and to threaten The New York Times with an indictment is that this administration wishes to criminalize the newsgathering process.

* * *

The First Amendment protects publication of over-classified material. Otherwise administrations could cover up malfeasance with a classification stamp.

Without a law to cover leaking, President Bush's administration has invented one: The Espionage Act of 1917. This law does not cover leaking or publication. Its legislative history is clear. Congress, in 1917, intentionally did not cover the press.

Nonetheless, the present administration is attempting to convert it into an official secrets act. It is prosecuting a lobbyist under it (The Aipac Case). It has threatened to use it against newspapers.

If the lobbyist is convicted, it could be a bad precedent for publications. The lobbyist did not commit espionage.

The apparent irrelevance of The Espionage Act to leaking has made the presiding judge in Aipac uneasy. He has set a hearing to determine whether it is constitutional.

ABC reporters have said their phones are tapped. In his ABC interview, Mr. Gonzales did nothing to dispel the view that he will tap reporter's phones under the appropriate circumstances. But his idea of appropriate circumstances is significantly broader than what the Constitution allows.

* * *

James C. Goodale is the former vice chairman of The New York Times and producer/host of the television program "Digital Age."