The Plot Against the First Amendment

By Scott Horton / posted in Harper's

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.

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.”

Britain has of course never had a media with the freedom of the American press. John Milton railed against the abusive requirements of licensing without making headway. Britain had the tradition of Royal Prerogative, a tradition of branding political rabble rousers with the mark “SL” for “seditious libeler.” Of course, many of those seditious libelers emigrated to America, which helps explain why this was an issue contributing to a revolution that broke out in 1776. The erstwhile colonists heard Milton's appeal and followed it, producing a decisive parting of the ways in the English-speaking world. But that's all very inconvenient history, which is certain soon to be expunged from the history books. After all, those who control the present, control the past. And Gonzales had come down with a very bad case of Official Secrets envy.

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.