On March 2, 2004, Anthony Lewis, a former New York Times columnist, spoke at Benjamin N. Cardozo School of Law at Yeshiva University in a conference called “Weapons of Mass Destruction, National Security, and a Free Press.” Lewis began his remarks by referring to past interactions involving the press and government—notably the government’s attempts to suppress publication of the Pentagon Papers and The Progressive magazine’s article about the H-bomb. What follows is an updated version of Lewis’s speech.
Today I am going to talk about where we are on the issues of national security and the Constitution. The first thing I have to say is that the issues now are utterly different from those in the Progressive or Pentagon Papers case. In 1971, in the Pentagon Papers and, in 1979, in The Progressive, the government tried to prevent the press from publishing material that officials asserted would threaten national security. Since the terrorist attacks of September 11, 2001, the government has not directly engaged the press. It has not sought to enjoin a newspaper or broadcast station from disclosing something. It has invoked national security, rather, to deprive individuals of fundamental rights. In the name of fighting terrorism, it has abruptly overridden guarantees in the Constitution and international law. Ideas that we had regarded as alien to American beliefs—detention without trial, denial of the right to counsel, years of interrogation in isolation—are now American practice.
Let me tell you—or remind you—of one far-reaching claim of national security authority by the Bush administration. It claims the power to designate any American citizen as a supporter of terrorism and then to hold that citizen in detention indefinitely, in solitary confinement, without trial and without the right to consult counsel. And the imprisoned person, according to the administration’s legal argument, is to have virtually no chance to challenge his designation as a terrorist.
Two American citizens have been imprisoned in that way for more than 20 months now. I shall briefly describe one. Jose Padilla was born in Brooklyn, became a gang member, served several prison terms, and in prison converted to Islam. In May 2002 he flew into O’Hare Airport in Chicago from abroad. Federal agents arrested him as a material witness before a grand jury in New York investigating the attack on the World Trade Center. He was taken to New York and brought before a federal judge, who appointed a lawyer, Donna Newman, to represent him. A hearing was set for June 11th. But on June 10th Attorney General [John] Ashcroft announced that Padilla would be held without trial as an enemy combatant.
“We have captured a known terrorist,” Ashcroft said on television. “While in Afghanistan and Pakistan, he trained with the enemy …. In apprehending him, we have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive ‘dirty bomb.’” That sounded frightening, but of course there had not been—and still has not been—any legal process to determine the truth of Ashcroft’s colorful pronunciation of Padilla’s guilt.
The Bush administration’s lawyers at first said that Padilla should have no right to challenge his imprisonment in court at all. Then it said he could have a habeas corpus proceeding—the traditional way to test the legality of imprisonment. But it argued that the government had to show only “some evidence,” not prove its case by a preponderance of evidence or, as in a criminal case, beyond a reasonable doubt.
Newman, Padilla’s lawyer, filed a petition for habeas corpus. The evidence produced by the Bush administration was a statement by a Pentagon official, not subject to cross-examination and without any firsthand witnesses. The judge found that that was enough to justify Padilla’s detention. But he did say that Newman should have a right to talk with Padilla, for the limited purpose of getting from him any facts inconsistent with his designation as a terrorist. The government reacted to that with outrage, saying that any visit to Padilla by a lawyer might damage his interrogation by destroying the necessary “atmosphere of dependency and trust between the subject and interrogator.”
On appeal a panel of the United States Court of Appeals for the Second Circuit held that President Bush had no authority to hold Padilla in detention. The vote was two to one, and even the dissenter thought Padilla should have an unrestricted right to counsel. The Supreme Court is reviewing the case.
In March, Newman and her co-counsel, Andrew Patel, were allowed to visit Padilla at the Navy brig where he is held in South Carolina. They did not expect to learn a lot—or even ask very much, for the Defense Department ordered that two department officials be present at the visit and that the conversation be videotaped. Under those circumstances, counsel cannot, of course, have a candid discussion of facts or strategy.
The Defense Department still maintains that it can deny the right to counsel to a citizen held, like Padilla, as an “enemy combatant.” It said it was allowing the visit to Padilla as a matter of grace. Two hours after announcing that the lawyers would be permitted to see Padilla under restrictive conditions, the government filed a brief in the Supreme Court arguing that the issue of the right to counsel in the case was now moot.
Press Coverage of Civil Liberties
The theme of this conference has been national security and a free press. You might be wondering what the free press has to do with the Padilla case and other repressive actions by the Bush administration. My answer is that the press has had little to do and, more to the point, little to say about them. Coverage of the administration’s record on civil liberties since September 11th has, in my judgment, been sadly inadequate. An example: I first heard about the administration’s claim that it could indefinitely detain American citizens simply by calling them enemy combatants when it held the other detainee, Yaser Esam Hamdi. I saw it in a story a few paragraphs long in The New York Times. I was bewildered. Why wasn’t that claim important news?
The fate of Hamdi and Padilla has rarely made it to Page One since then. When the Supreme Court agreed to hear, first, the Hamdi case, it was quite rightly a Page One story. But during the more than two years since the Bush administration first made its audacious claim, it has had little prominence in the print or broadcast press. I doubt that one American in a thousand knows about the cases—knows that his government claims a right to put an American citizen in detention forever on its own say-so.
The Bush administration is often accused of unilateralism in foreign affairs. But the unilateralism is just as striking at home in enemy combatant cases. The administration asserts, on its own, a legal right to detain citizens without trial. Then it claims the right to define not only the law but also the facts, because it allows the detained person no effective opportunity to challenge his designation as a terrorist.
Think about those enemy combatant cases in comparison with the Progressive case. Which constitutes a worse threat to the constitutional freedoms of Americans? It seems to me obvious that our rights are far more menaced by the proposition that the government can put any of us in prison without trial or access to counsel.
In the Pentagon Papers’ case Justice Potter Stewart, in his separate opinion, addressed the role of the press on issues related to the national security. On those matters, he said, the usual legislative and judicial checks on executive power scarcely operate; Congress and the courts tend to defer to the President. So, he wrote: “the only effective restraint upon executive policy and power … may lie in an enlightened citizenry—in an informed and critical public opinion which alone can protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened citizenry.”
It is not only in the enemy combatant cases that the press seems to me to have failed to perform the function described by Justice Stewart. Another example is the sweep of aliens ordered by Attorney General Ashcroft after September 11th. Thousands were arrested on suspicion of having something to do with terrorism. They were held for weeks or months, their names and places of detention kept secret, then mostly charged with such immigration violations such as overstaying a visa and deported after secret hearings. In prison, while they were being detained without charge, they were humiliated and assaulted. At the Metropolitan Detention Center in Brooklyn they were allowed one telephone call a week to try to find a lawyer. Guards informed them of that by asking, “Are you okay?” That was supposedly shorthand for, “Do you want to call a lawyer?”
We found all that out when the Justice Department’s inspector general, Glenn A. Fine, investigated and filed a report. He told about the abuse of the prisoners. He said they had been arrested more or less at random, with no probable cause to think they had a connection with terrorism. The whole process of arrests and confinement had relatively little coverage in the press—until the inspector general’s report. Then there were serious reports. The New York Times’s legal writer, Adam Liptak, wrote in an analytical piece that the treatment of the aliens “inverted the foundation principles of the American legal system.”
The secrecy that pervaded the alien sweep—even families were not told where their missing members were—is the sort of thing that usually arouses the press. But with some honorable exceptions, notably a fine series in the Chicago Tribune, the detentions were not treated as a major story. Again, I wonder why.
Why the Press Ignore These Stories
One reason for the relatively tepid response to the incursions on civil liberties since September 11th, I think, is that they have on the whole been directed at marginal figures. Editors are not going to see a Jose Padilla as a person with whom readers or viewers can readily identify. But the principle that the Bush administration seeks to establish in his case—that a President can jail any American indefinitely without a trial—is what matters.
Another reason may be that the interests of the press itself have not been directly attacked. A case like [the] Pentagon Papers, in which the press’s freedom is at issue, always gets more attention from editors. Justice William J. Brennan, Jr., who was one of the press’s great friends, once noted its habit of crying “doom” or “fascism” whenever it lost even a minor case in the courts.
Finally, I think the press, like politicians and the rest of us, were so traumatized by September 11th that we felt it right to unite behind the President. That urge was so strong that we hardly reacted when Attorney General Ashcroft told us that dissent—concern about civil liberties—was unpatriotic.
It was not an offhand statement by Ashcroft. In his prepared testimony for a Senate Judiciary Committee hearing three months after September 11th he said: ‘To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies.” I know of no other attorney general in my lifetime who has expressed such contempt for First Amendment values.
The impulse to get on the national security team in the face of a terrorist threat had a particularly egregious example about a month after September 11th, when five major television networks broadcast a taped message from Osama bin Laden. President Bush’s national security adviser, Condoleezza Rice, got top executives of the networks on a conference telephone call and urged them to cut “inflammatory language” from any future bin Laden tapes. She also warned that his talks might include coded instructions to terrorists—a singularly unpersuasive notion, since the original tapes had already been broadcast by Al Jazeera, the Arabic-language station. The network executives agreed among themselves to broadcast only short segments of future tapes. Walter Isaacson, who then was CNN’s president said, “We’re not going to step on the landmines Dr. Rice was talking about.” A more candid explanation would have been, “We don’t want to look unpatriotic.”
There was a similar press tendency to take its lead from the White House, I think, in the run-up to the Iraq War. Diligent digging would have found the doubts that we now know existed in the intelligence agencies about the existence of weapons of mass destruction in Iraq. If the press had been more critical—more independent—the public would not have been led so easily from al-Qaeda to Iraq as the enemy that 44 percent of respondents in a poll thought there were Iraqis among the airplane terrorists on September 11th. I think The New York Times would have reported more fully what political opposition there was to the rush to war on Iraq, including a masterful speech by Senator Robert Byrd that it ignored. I think The Washington Post would not have reported an antiwar protest with a snide article calling the demonstrators “dudes” and “patchouli girls.”
I earlier quoted Justice Stewart on how we need an informed and free press to check the great power of the President when he invokes national security. To those two adjectives I think we have to add a third: courageous. When we look back at the Pentagon Papers’ episode, it is the courage of The New York Times and then other newspapers that stands out. I have been critical of the profession I love, so it is only right that I now quote a ringing statement in praise of that courage. It is from the concurring opinion of Justice Hugo L. Black in the Pentagon Papers’ case.
“Paramount among the responsibilities of a free press,” Justice Black wrote, “is the duty to prevent any part of the government from deceiving the people and sending them off to foreign lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, The New York Times, The Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam War, the newspapers nobly did that which the Founders hoped and trusted they would do.”
The duty is not only to report with courage what underlies government decisions to send Americans off to die of foreign shot and shell, but government actions menacing the constitutional protections that have kept us free.