Separating Press and State

In May of 2000, a journalist/terrorism expert named Steven Emerson appeared before a US House of Representative’s Committee on the Judiciary to give testimony on the use of Secret Evidence, or "classified information" in immigration cases here in the United States. In his testimony, Emerson recommended that our judiciary adopt the use of Secret Evidence in immigration cases against certain illegal aliens. He also said, the issue of secret evidence had come to the fore as the foremost legislative and public relations priority of an "emerging new and unprecedented force" (emphasis added) on the American political landscape." He added that this "new force" was, "seeking to roll back anti-terrorism laws, deter their enforcement and in the end make the US a safe haven for international terrorists, and their supporters." Few citizens knew at the time that Emerson’s reference to a "new force" was a reference to Palestinian Muslims, and Muslim Americans who supported them in their efforts to expose the injustices of the Israeli occupation of Palestine, and to bring the occupation to an end. Few citizens understood the nature of the political battle that was raging here in the US as Muslims and Jews squared off publicly on issues related to Israel’s continued illegal occupation of Palestine, and the human rights, and other crimes, and abuses related to the occupation. Few of us knew, because the US media never told us. The majority of the Palestinian political activists organizing, speaking out and challenging Jewish American organizations, and their historic dictation of US foreign policy in respect to the conflict, were not terrorists, they were immigrants. Many had immigrated to the US as students, and others as business people, and religious leaders, while others had immigrated as simply ordinary people seeking like many immigrants, an opportunity to better their lives under the umbrella of US Constitutional rights and freedoms. Such freedoms as free speech free, political association and the right to challenge government policies had been denied these activists not only in Israeli occupied Palestine, but also in most of the Muslim world.

Emerson’s access to, and appearance before this Committee under the cloak of press immunity, and privilege would make it almost impossible for anyone to challenge his assertions as untrue, and possibly seditious. His freedom of press rights and his self-styled expertise in the field of terrorism served to protect him from the scrutiny that any other so-called expert, who would suggest such sweeping and undermining changes in our interpretation of the US Constitution, and law would undergo. The media never reported either prior to, during, or following Emerson’s presentation before the committee, the fact that before emerging on the political landscape as a journalist and terrorism expert, (he never called himself an anti-terrorism expert), he had served as a political operative for one of our nation’s most liberal Democrats, Congressmen, and Presidential candidates. The media never reported to the American people that the journalist sitting before us, arguing that more than 200 years of legal tradition, and Constitutional law should be scrapped to accommodate Israel’s continued illegal occupation of Palestine, had studied and written a master’s thesis on Hitler’s successful use of propaganda in the demonization and vilification of Jews prior to the Holocaust. This man, who some might call a modern day Goebels, was given access to a congressional committee where he argued for undermining the US Constitution, and rules of evidence. His media colleagues never once asked who is this man, what are his objectives, what’s his angle, and what makes him qualified, even if he is a journalist, to appear before a Congressional committee to argue that we should suspend our nation’s laws, our Constitution, and legal traditions, etc., to facilitate a political purging of anti-Israeli occupation activists. More importantly, no one asked, not even the Congresspeople, why, even though they are sworn to uphold and protect the US Constitution, they provided a platform for this man to advocate its suspension, and never asked, from where such "secret evidence" would materialize. The media, who so thoroughly covers, and reports on the nominations and confirmations of Supreme Court Justices, and their views on abortion, never once mentioned that part of the secret evidence conspiracy, is that such evidence is manufactured and supplied, almost exclusively by journalists. Ironically, although not surprisingly, the very person, the journalists who became a jurist, and terrorism expert, and who appeared before a Congressional Judiciary committee advocating, unchallenged, the undermining of our US Constitution, is suspected of being a primary provider of such evidence, along with many of his pro-Likud associates who are also journalists.

It is journalists who create the unsubstantiated allegations that becomes secret evidence in articles, op-eds, editorials, and even in academic journals about Palestinian or other Muslim political activists, leading to detainment without charges that have lasted for years. It is journalists, who use rumor and innuendo to suggest that such activists, and their political positions, present a national security threat, when the threat they pose is actually to undemocratic Muslim governments and Israel. Ironically such journalists can not be held legally accountable for falsifying evidence, or for violating or depriving US citizens of rights in such cases, since as members of the press, their First Amendment rights are more sacrosanct than the Constitutional rights of US citizens, and our Bill of Rights. Their First Amendment rights are seen as more important even than our Constitution, which is ridiculous since they derive their rights from the Constitution, don’t they? They have undone more than 200 years of legal precedent and law in respect to the rules of evidence, burden of proof, and the presumption of innocence until proven guilty in a court of law, and not the newspapers, tabloids or cable TV, and no one has said anything.

In the written findings of US Justices who have been confronted with secret evidence cases, they have found that the use of secret evidence is unconstitutional, and that it violates due process rights. Supreme Court Justice Jackson wrote in reference to the case Knauff v. Shaughnessy, " the plea that evidence of guilt must be secret is abhorrent to free men because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected." In another case where a Muslim activist was detained for nearly three years in a US prison without being charged with a crime, the secret evidence against him was revealed, and found to be only three or four newspaper clippings where a journalist claimed that the defendant had known suspected terrorists in his native country, prior to coming to the United States, nearly 20 years ago. When you are all growing up together in a refugee camp, it’s hard not to know one another. Where is the respect for, and adherence to legal precedent that everyone is talking about in respect to Roe v. Wade, does it only apply to abortion?

The use of such evidence and its manufacture continues until today, and is used primarily as a political weapon against Muslim political activism, particularly the Palestinian brand. It is used primarily to silence the political opponents of Israel. It found its way, with little resistance, into our legal consciences and institutions through the lobbying of Jewish American organizations. These organizations would obviously undermine the US Constitution, our legal institutions and anything else, if that is what it takes to protect Israel from any challenge to its illegal occupation of Palestine and war crimes. It is used to prevent the American taxpayer from knowing the amounts of US taxpayer money spent regularly to facilitate an illegal and brutal occupation of an indigenous people in Palestine. It is used to prevent the American taxpayer from knowing how that money is spent, to bulldoze homes, and to purchase military weapons to kill unarmed civilians, and to torture, and to repress and violate and deprive US citizens, and others of Constitutional and human rights, both here and abroad.

The media does not report, and has not reported that under the US Patriot Act, US citizens are now subject to secret evidence. That means essentially that now, the erosion of our Constitution has reached such levels that it does not even protect US citizens. Journalists don’t seem to care. No one is scrutinizing the use of secret evidence in US courts with the same vigor that journalists cover abortion, and even the legalization of medical marijuana. No one is talking about the chilling effects that this has on liberty and the exercise of Constitutional rights in our country with the same vigor that we discuss the war in Iraq, or Afghanistan, or even freedom and democracy as a foreign policy objective. What about freedom and democracy as a domestic policy objective?

The media is increasingly functioning as an agent of the government, rather than as a watchdog for the people, and that has become very apparent. The Valerie Plame case is an example, as is the creation of a cause for war in Iraq, and the media manufactured, and circulated fiction that Iraq had a threatening nuclear weapons program and weapons of mass destruction are other examples. There are more. How about media attempts to steer US foreign policy according to the dictates of foreign governments, and their operatives here in the US? Their attempts to instigate attacks on Iran, Syria, and Sudan? How about obscuring and hiding important and relevant facts from the American people like the role that Israel’s unregulated nuclear weapons program has played in the nuclear arms race in the Middle East? What about the fear that such technology will end up in the hands of Al-Qadea because it is unregulated? What about the Armstrong Williams case and other instances where the government bought journalists and used them as propagandists to advance various domestic policies, should we believe that foreign policy is an exception? What about the mock media trials where pundits convict US citizens in the court of public opinion, while contaminating potential jury pools with tabloid type gossip, and character assassination?

Title 50 USC Section 403-7 prevents the United State’s government from using journalists and media outlets for the collection of intelligence, or as its agents, either here in the US or in foreign countries. Yet, this law explicitly states that the prohibition does not prohibit voluntary service. Journalists who volunteer to serve the government as propagandists, spooks, and informants can do so under the color of law, and still be protected from accountability, even if they lie, or maliciously defame, hurt, and destroy others by doing so. Ironically, they or their state sources can even jeopardize national security, as in the Plame case, and still perhaps be safe from prosecution due to special media, and government official’s privilege and immunity. That is a potent combination of privilege and power that is a threat in itself, since it places the joint enterprise of press and state for all intent and purpose, way above the law.

It might be time for the people in the United States to re-think the freedoms and the power of the Fourth Estate, and to push for a balance. We need our media to be free and independent. We need journalists to return to the service of the people and the cause of a free and democratic republic where truth gathering and truth telling is more valuable than gold, fame, or any foreign government interest. We need a press in the United States that is sworn to uphold the US Constitution, our nation’s laws and traditions, and not a foreign, or US government co-opted press that makes it a preoccupation to blacken our nation’s soul and poison our conscience with propaganda that feeds fears, causes our nation to be isolated, or that turns citizen against citizen, the people against the state, and vice versa. As our Congress considers expanding, rather than limiting the privileges and immunities granted to the previously "free" press in the United States, they might shake a big stick at the media moguls, while reminding them that they exist to serve, and not to destroy this Republic. The protections that citizens confer upon the media is part of an until now mostly unspoken covenant that is premised upon the agreement that they will "do no harm," and in return, the people will grant them the protection, and privilege required to gather and report the news without fear of undue retaliation, intimidation, or other unfair, or undue impediments to that process. Our Congress has the difficult job of protecting the free press in the United States, while striking the balance between the freedoms of the press and the rights of the people. That might require, along with immunity laws, a law that keeps the press separate from the state, and independent, and that also returns the media’s focus to serving as a watchdog over the Republic, on behalf of the people, rather than as an agent of governments, a dictator, and a purveyor of classified, and sometimes falsified information.