Covering a Multitude of Sins

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John F. Kennedy
once recounted a revealing joke told by Nikita Khrushchev, the
Soviet premier during the 1950s and '60s, in response to Kennedy's
complaints about the uncontrollable Washington press corps: a
Russian ran through the Kremlin shouting, “Khrushchev is a fool!
Khrushchev is a fool!” For this outburst, the man was sentenced
to 23 years in prison. When Kennedy retorted that in the United
States it was impossible to imprison a newsman for insulting the
nation's leader, Khrushchev explained that only three years of
the sentence were for insulting the premier – the remaining
20 were for “revealing a state secret.”

officials too often avoid accountability by sweeping incompetence
and dishonesty under the rug of “national security.” Yet our country
– unlike Khrushchev's Soviet Union – has a tradition of counterbalancing
such secrecy by protecting a free press, allowing citizens to
converse without risk, and honoring the efforts of brave whistle
blowers – those who defy the culture of secrecy and leak information
to the press to inform the public of governmental wrongdoing,
mistakes, and deceptions. The Bush administration, however, is
aggressively working to prevent such public scrutiny in four distinct
ways: it has widened the range of classified and otherwise confidential
(but non-classified) materials. It has expanded its ability to
criminally prosecute government employees who leak such materials.
It has signaled a willingness to move against reporters who publish
those leaks. And, most significantly, it is using new “material
support” statutes to do an end run around the First Amendment
and criminalize many forms of political advocacy.

The Bush
administration's assault on free speech, free press, and free
association threatens to constrict our “threshold” liberties.
This category of liberty, which also includes the right
to be free from arbitrary arrest and indefinite detention (see
the Threshold
,” News and Features, March 5), lies at the heart
of what it means to live in a free society and is essential for
our other institutions to function as intended. If the press is
free, if open elections are held, and if the courts are performing
their sworn duty, even a president who tries to assume the powers
of an emperor can be dealt with. But the more the press, the public,
and the courts allow a president to chip away at the threshold
rights that restrain his or her powers, the less democratic, free,
and safe the nation becomes.


The Bush
administration's push for greater government secrecy began as
soon as the president took office. Between March and August 2001,
for instance, the White House issued three successive orders to
the National Archives to postpone the scheduled public release
of some 68,000 pages of Reagan-era documents. But in the wake
of the September 11 terrorist attacks, Bush took advantage of
the confusion and fear to accelerate his restrictive agenda. On
October 15, 2001, the Justice Department issued new rules for
how agencies should handle Freedom of Information Act requests,
reversing the Clinton administration's policy of making files
available by default if there was no apparent reason to keep them
classified. The new policy required an affirmative reason
to declassify the files. Then, on November 1, 2001, the White
House added Executive Order 13233, allowing the sitting president
to block disclosure of past presidential records even when past
presidents want records disclosed.

The information
blackout cast by this preference for secrecy makes it nearly impossible
for citizens to judge for themselves whether their government
is using effective and appropriate means to, among other things,
combat terrorism. Yet just how essential it is for citizens to
be able to assess our leaders' performance has been made clearer
than ever by the proceedings of the 9/11 commission. A policy
of excessive secrecy, it appears, served largely to conceal enormous
incompetence at the top, bureaucratic bungling throughout the
national-security apparatus, and inconvenient facts about the
way the Bush White House does business.

One particularly
stunning example of how secrecy can interfere with accountability
was the White House's attempt last year to retroactively classify
parts of the Joint Congressional Intelligence Committee's report
on its inquiry into 9/11, including excerpts from the FBI's July
2001 Phoenix flight-school memo (which had already been published
elsewhere), the names of senior administration officials, and
information on anti-terror intelligence that had been aired in
public testimony. The administration also sought to block the
report's release. When the document finally became public in July
2003 – after much wrangling between the committee and the Bush
administration – 28 of its 832 pages were redacted. The section
not made public dealt mostly with alleged Saudi involvement in
the 9/11 terrorist attacks. In explaining the redactions – which
had been made over the objections of committee co-chairs Senator
Bob Graham (D-FL) and Representative Porter Goss (R-FL), and even
of Saudi ambassador Prince Bandar bin Sultan – Bush said that
declassifying the information would “help the enemy” by revealing
intelligence sources and methods.

This overclassification
seems, like Khrushchev's joke, to be driven less by true national-security
concerns than by a desire to bury inconvenient facts. Bush, after
all, has made exceptions to his closed-mouth policy in order to
declassify material embarrassing to his political opponents. Shortly
after he took office, he allowed the declassification of partial
transcripts of phone calls between former president Bill Clinton
and Israeli prime minister Ehud Barak, dealing with Clinton's
controversial last-minute pardon of fugitive financier Marc Rich,
who had been convicted of tax-evasion, among other things. When
Clinton requested that the full transcripts be released, Bush
refused. And in April, the Bush administration allowed Jamie Gorelick's
1995 national-security memo, authored when she was a deputy attorney
general in the Clinton administration, to be declassified solely
so that Ashcroft could use it to take potshots at Gorelick, now
a member of the 9/11 commission, during his testimony before that

Not content
with overclassifying documents, the Bush administration is also
seeking the courts' assistance in restricting information. In
Center for National Security Studies v. Department of Justice,
the Justice Department argued – and, on June 17, 2003, the DC
Circuit Court of Appeals agreed – that it could withhold from
the public vital information about post-9/11 detainees, including
their names, arrest dates, locations of arrest and detention,
dates of release, and even the names of the lawyers representing
them. On January 12, the US Supreme Court denied review, letting
the secrecy surrounding the detentions stand.

The case
of Mohamed K. Bellahouel, an Algerian student who overstayed his
visa and was detained after September 11, perhaps best illustrates
this trend. Bellahouel was a waiter at the Kef Room, a Middle
Eastern restaurant in Boca Raton, Florida, where, FBI investigators
testified in a sealed statement to the court, he “likely” served
food to two of the 9/11 hijackers, one of whom was Mohammed Atta.
FBI investigators also told the court of an uncorroborated report,
given by an unidentified movie-theater ticket agent, that Bellahouel
once went to the movies with another of the hijackers. These fleeting
contacts caught the FBI's attention, and Bellahouel was detained
one month after the 9/11 attacks for having violated his student
visa. When Bellahouel filed a habeas corpus petition seeking
to be released from custody, his entire case was, for reasons
that remain unclear, put under unusually tight seal: nothing
about this case is available for public inspection.

court cases involving secret evidence and documents often include
individual sealed items that are noted as such on the docket –
such as the name of an intelligence operative or a secret intelligence
report – the docket itself (that is, the list of items on file
in the case and of the actions taken and hearings held) is almost
always public. In Bellahouel's case, his identity – indeed, his
very existence and that of his case – was withheld from public
disclosure. Interestingly, however, Bellahouel was allowed to
post a $10,000 bond for his release while the secret case was
still pending; the courts apparently felt that disclosing any
information about Bellahouel's case was dangerous, but that letting
him walk the streets was perfectly fine. The case came to light
when, more than a year after proceedings had begun, a court clerk
erred and inadvertently published Bellahouel's initials (M.K.B.)
and the case number on the electronic argument calendar for the
11th Circuit Court of Appeals. A sharp-eyed reporter from the
Miami Daily Business Review noticed the anomaly and broke
the story of the “super-sealed” case. Although a range of media
outlets and organizations – from CNN to the Association of Alternative
Newsweeklies – sought to intervene in the case of M.K.B. v.
Warden and have the docket unsealed, it remains cloaked in
mystery because the US Supreme Court denied review on February
23. Indeed, the secrecy perpetuated itself even during this final
stage of the process, when Solicitor General Theodore Olson filed
a sealed brief with the Supreme Court. This brief remained sealed
even after the court denied review.

What's particularly
disturbing about the Supreme Court's refusal to intervene in M.K.B.
is that it goes against a long tradition of openness in the courts.
In 1948, the Supreme Court reviewed and ruled unconstitutional
the first secret criminal case documented in American judicial
history. A Michigan judge had convicted and sentenced a man for
criminal contempt of court in a secret session. The accused had
no access to counsel and no opportunity to call witnesses in his
defense. In that case, In re Oliver, the Supreme Court
emphasized that the trial's secrecy made it inherently unjust
and unacceptable. From the English Star Chamber to the Spanish
Inquisition, the court wrote, secret trials throughout history
have posed “a menace to liberty.” In invalidating the secret trial,
the court emphasized “this nation's historic distrust of secret
proceedings” and asserted, “The knowledge that every criminal
trial is subject to contemporaneous review in the forum of public
opinion is an effective restraint on possible abuse of judicial

In 1980,
the Supreme Court frowned on another secret trial in Richmond
Newspapers v. Virginia. In that case, a Virginia judge – at
the request of the defendant – closed the trial to press and spectators,
ostensibly to avoid distracting the jury. Once in closed session,
the judge excluded all the prosecution's evidence, removed the
case from the hands of the jury, and acquitted the defendant.
Although the defendant was understandably happy with this turn
of events, the local news media were not, and they filed suit
to prevent such closed trials from occurring in the future. The
Supreme Court ruled in favor of the newspapers, holding that under
the First Amendment, the public and the media have a constitutional
right of access to the trial courtroom, even if the defendant,
prosecutor, judge, or any other party has reason to prefer secrecy.

It's not
just the high court's refusal to hear the M.K.B. case,
however, that suggests this tradition of judicial openness may
be falling victim to the administration's cries of “national security.”
In June 2003, the Supreme Court refused to reopen an old case
in which the federal government had improperly used the national-security
justification to mislead the high court and shield itself from
liability. The case began in 1948, when a B-29 bomber carrying
experimental radar equipment crashed, killing most on board. The
widows of the dead radar engineers filed suit for negligence.
In 1953, the military successfully argued to the Supreme Court
that the accident report from the crash should not be released
to the plaintiffs or even to the trial judge, because to do so
might expose information about the radar technology and thereby
endanger national security. But 50 years later, in 2003, the newly
declassified accident report revealed the truth: the report disclosed
nothing about experimental radars, but described how improper
aircraft maintenance, insufficient training, and a series of human
errors – in other words, government negligence – had caused the
accident. To use the Khrushchev analogy, the foolishness of the
government turned out to be the state secret under protection.
Yet on June 23, 2003, the Supreme Court denied, without comment,
the families' petition to reopen the case.

government workers

General John Ashcroft's Justice Department has been working overtime
to choke off the flow of sensitive information to the press. He's
done so by creating an environment hostile to disclosure, with
severe penalties for officials who defy the drive to keep more
and more aspects of government operation under wraps. Ultimately,
Ashcroft's strategy is likely to have a profound impact on the
people's ability to discuss a vast array of subjects related to
the government's war on terrorism by making government employees
afraid to provide useful information to the press and public.

On December
6, 2001, during an appearance before the Senate Judiciary Committee
to defend the Justice Department's response to the 9/11 attacks,
Ashcroft told senators that his department wanted a “comprehensive,
coordinated, government-wide, aggressive, properly resourced,
and sustained effort” to combat what he termed “the problem of
unauthorized disclosures.” The tip-off that Ashcroft was talking
about expanding the breadth of government secrecy, rather than
merely stiffening penalties for leaks of classified information,
was that he spoke of “unauthorized disclosures” of classified
and “sensitive” information – a much broader category.

Ashcroft cobbled together new interpretations of existing statutes
rather than pushing for new laws to make non-classified disclosures
illegal. To seek legislative approval for broader legislation
would have prompted a debate on where to draw the proper line
between the government's legitimate secrecy requirements and the
public's need and right to know. Had he ignited such a debate,
Ashcroft would have had to explain why it is in the public interest
to criminalize the release of non-classified information whose
disclosure can be embarrassing but rarely has any real implications
for national security. And if he lost that debate, it would be
very difficult for the Justice Department to go against the Congress's
expressed view by prosecuting people under expanded interpretations
of existing statutes. Hence, Ashcroft chose simply to leave lawmakers
out of the process.

Since that
2001 appearance before the Senate Judiciary Committee, Ashcroft's
Justice Department has been quite creative in the use of existing
laws to punish whistle blowers and others whose disclosures benefit
the public. (He is able to do this partly because the Whistleblower
Protection Act offers few obstacles. While the act does offer
generous protections for those who fit the legal definition of
“whistle blower,” a series of court decisions has made it extraordinarily
difficult to meet that definition. For example, disclosures to
a co-worker or other person not directly in a position to take
corrective action are not protected. And to receive anti-harassment
protections, a whistle blower must present “irrefragable proof”
that the government is not acting correctly, fairly, lawfully,
and in good faith.)

In February
2002, the Justice Department indicted Jonathan Randel, an intelligence
researcher with the Drug Enforcement Agency, for leaking secret
but unclassified DEA investigative information to a freelance
investigative reporter writing a series for the London Times
on drug trafficking in Belize. Based on Randel's leak, the
reporter published a controversial article detailing the DEA's
money-laundering probe of a Belize-based bank owned by one of
the Tory Party's biggest donors, British businessman Lord Michael
Ashcroft (no relation to our attorney general). The indictment
was based upon two statutes – one criminalized improper access
to a government computer, and the other made it a federal crime
to use any of the modalities of interstate communication to effectuate
a fraud or other crime (the two are linked together: by using
the Internet to transmit the leak, he committed both the crime
of improper access and the crime of using interstate communication
to further that improper access). Neither statute was written
with leaks to the public in mind, but with a stretch here and
a stretch there, they could have supported the indictment. Randel
chose to accept a one-year prison sentence rather than risk a
trial and face the theoretical statutory maximum of 580 years
in prison. Though the Randel case hails from the “war on drugs”
rather than the “war on terrorism,” this new prosecutorial tool
– like so many others – will likely be used against those who
disclose information relating to the war on terror. Indeed, it
is quite clear that one of the DOJ's major reasons for pursuing
this minor case of an unimportant government official who leaked
reputational information about a foreign businessman was that
it helped establish a broader sweep for federal criminal statutes
that, until now, would not have been assumed to cover such conduct.

statements from various Justice Department officials make clear
that the Randel prosecution was intended as a shot across the
bow of potential whistle blowers in possession of information
more embarrassing to the government than the DEA files disclosed
by Randel. US Attorney William Duffy Jr., Ashcroft's man on the
Randel case, was very pleased with the outcome, telling the
New York Times that the case served as a warning to other
government workers. In October 2002, Ashcroft submitted a written
report to Congress that made clear that Randel-style prosecutions
are now the official policy of the Justice Department. Making
no distinction between whistle blowers and spies, Ashcroft stated
the need for “aggressive investigations of unauthorized disclosures
of classified information utilizing all appropriate and available
investigative tools and techniques to identify the perpetrators.”
He then described his recommendations for an interagency anti-leak
plan – the Justice Department and other agencies will pursue all
applicable administrative, civil, and criminal penalties against
anyone who disseminates confidential documents – and noted that
the steps he described were all “within the existing authorities
of the Executive Branch and do not require additional legislation.”
In other words, the administration does not need congressional
cooperation to shut off the flow of information to the press,
the public, or even to the Congress itself.

It is true
that Ashcroft is not the first attorney general who has made creative
use of existing laws to advance government secrecy. The Nixon
administration, after all, tried to suppress publication of the
classified Pentagon Papers, a secret government study containing
information about US involvement in Vietnam, by seeking a court
injunction against the major national newspapers that possessed
copies – an attempt that the Supreme Court struck down on First
Amendment grounds. And in 1986, the Reagan Justice Department
brought a first-of-its-kind prosecution against Samuel Morison,
a Navy Department analyst who provided the British intelligence-analysis
publication Jane's Defence Weekly with classified satellite
photos of a Soviet ship. No one suggested that Morison harbored
ill-will toward his country; nor was there a suggestion that Britain
was a hostile power. Nonetheless, Morison was convicted under
both the Espionage Act and a statute covering theft of government
property. He was sentenced to two years in prison.

But there
is something new about Ashcroft's approach. The Pentagon
Papers case and the Morison prosecution both dealt with the release
of classified documents as opposed to those that are merely
“confidential.” This crucial distinction seems lost on Ashcroft,
however, who has made clear in actions as well as words that his
intention is to punish the disclosure of any information government
officials might want kept secret, whether it is classified or
not, and regardless of whether the disclosure actually harms national

the press

Last October,
in response to an inquiry by the Institute of Electrical and Electronics
Engineers (IEEE) requesting a clarification of US trade regulations,
the US Treasury Department's Office of Foreign Assets Control
(OFAC) stated that editing scientific papers – “substantive or
artistic alterations or enhancements” to a manuscript, including
“the reordering of paragraphs or sentences, correction of syntax,
grammar, and replacement of inappropriate words” – authored by
scientists from foreign countries facing a US trade embargo (e.g.,
Iran, Cuba, Libya, and North Korea) constituted a violation of
federal trade regulations. Anyone committing such violations would
face fines of up to $500,000 and a sentence of up to 10 years
in prison. In early April, after months of intense controversy
– including a promise of civil disobedience by the American Chemical
Society, whose head of publications called the ban “inimical to
the spirit of science” – OFAC revised its interpretation of the
guidelines to permit IEEE to edit the foreign manuscripts without
fear of prosecution (see “The
Enemy of Ideas
,” Editorial, March 12).

The flap
was a quick win against an odious attempt to muzzle the scientific
press and thereby stunt the advance of science and technology,
which is one of our major national strengths and sources of security.
But the Bush administration is sure to try to muzzle the press,
scientific or otherwise, again, and next time it may succeed.
After all, how many other professional organizations would match
the guts shown by the American Chemical Society and threaten civil
disobedience to protect liberty? And would Ashcroft's Justice
Department back down as quickly as OFAC? Probably not.

Indeed, what
we're likely to see next is a direct assault by the Bush administration
on the Fourth Estate itself in a bid to squelch “national security”
stories. A largely unheralded but unforgotten aspect of the Vietnam-era
Pentagon Papers imbroglio gives us a hint of how the past may
indeed be prologue. The 1971 publication of the Pentagon Papers
by the New York Times, the Washington Post, and
the Boston Globe is perhaps the best-known example of how
disclosing overclassified material can benefit a free people.
The Supreme Court case that quashed the government's resulting
attempts at censorship, New York Times v. United States,
is often seen as a vindication of newspapers' mission to inform
the public. However, the Supreme Court's ruling in that case –
prohibiting “prior restraint,” the use of court injunctions to
prevent, in advance, the publication of even classified material
– left a dangerous opening that the Bush administration may seek
to exploit.

That's because
although the Supreme Court struck down prior restraint
of the newspapers, it explicitly left the door open for post-publication
criminal prosecutions of reporters and publishers. Concurring
opinions from Justices White, Stewart, Burger, Blackmun, and Marshall
(a majority of the justices then sitting) noted the possibility
of, and in some cases came close to endorsing, criminal prosecution
of the newspapers. Justice White's concurring opinion was
the most explicit – and menacing. “[T]hat the Government mistakenly
chose to proceed by injunction,” he wrote, “does not mean that
it could not successfully proceed in another way.” He then laid
out a road map for how to use the Espionage Act to prosecute journalists
who obtain and publish classified material.

For reasons
that remain unclear (some believe it was the onset of the Watergate
scandal), the Nixon administration did not pursue such a prosecution.
Since then, the government generally has not threatened the press
with criminal prosecutions for publishing leaked classified material,
choosing instead to go after individual leakers. But this may
soon change.

the CIA published an unclassified memorandum advocating such prosecutions.
Written by senior intelligence official James B. Bruce and titled
“The Consequences of Permissive Neglect,” the memorandum suggests
a new statute that would “hold uncleared publicists – i.e.,
journalists, writers, publishing companies, media networks, and
Web sites that traffic in classified information – accountable
for intelligence disclosures.” Bruce writes: “Any journalist's
First Amendment right to publish information does not appear to
– and should not – extend to disclosing lawfully classified intelligence
information.” If the Bush administration acts on this recommendation,
either by stretching existing law or introducing new legislation
to make such executive authority explicit, it could have a seriously
chilling effect on investigative reporting. And media life could
become particularly dangerous if the administration then took
aim at disclosure of confidential but unclassified material,
and in other ways sought to criminalize the dissemination of words.
This can be accomplished without new legislation. Remember that
the Justice Department's policy, as a result of the Randel prosecution,
is to treat any disclosure of non-classified information as a
crime; under this theory, any recipient of those leaks can be
treated as a co-conspirator of the leaker – essentially, a recipient
of stolen goods – rather than as a constitutionally protected
publisher of news. It is not clear whether the courts would approve
such an expansion of current laws, but the mere existence of this
threat is likely to have a deterring effect on aggressive reporters.

an end run around the First Amendment

The First
Amendment (and the body of case law that surrounds it) prohibits
the Department of Justice from using mere association with Islamist
fundamentalists or advocacy of their views as grounds for arrest.
In the McCarthy era of the 1950s, for example, when a legislative
“subversive activities” committee demanded that a professor discuss
his political associations and views (including his reported assertion
that the capitalist society would collapse in violence), the Supreme
Court ruled their questioning unconstitutional. In 1969, the high
court ruled that a Ku Klux Klansman's speech advocating “revengeance”
against the government was constitutionally protected. While one
cannot use speech to incite imminent lawless action (such
as exhorting an angry crowd to burn down a local building), the
court ruled, merely advocating violence in less specific
terms (such as saying the building deserves to burn) is protected.
And in a 1987 case, a county clerical employee won the right to
tell a co-worker that if assassins “go for [President Reagan]
again, I hope they get him.”

the Bush administration is doing an end run around the First Amendment
and successfully attacking dissident political advocacy through
aggressive application of the rapidly expanding “material support”
laws. Traditionally, a law that bars material support would prohibit
aiding and abetting others in committing or planning a crime.
But the Anti-Terrorism and Effective Death Penalty Act (AEDPA),
passed by Congress and signed into law by President Clinton in
1996, created a broader definition of material support, making
it a crime to donate money and material items to political groups
deemed to be “foreign terrorist organizations.” In 2001, the Patriot
Act further expanded the definition of material support to include
offering “expert advice and assistance” to terrorist organizations.
The end result is that the material-support laws, as outlined
in the AEDPA and especially the Patriot Act, provide Ashcroft
with a potent weapon to squeeze First Amendment rights to free
association and speech.

Take the
case of Sami Omar al-Hussayen, a graduate student in computer
science at the University of Idaho. The leader of the school's
Muslim Student Association, al-Hussayen assisted various organizations
and individuals in establishing and maintaining Web sites that
allegedly promoted terrorism. He also acted as the moderator for
a 2400 member e-mail discussion group supposedly devoted to supporters
of violent jihad. According to Ashcroft's March 4 press statement
announcing the indictment against al-Hussayen, by maintaining
the Web sites and the discussion group, “Al-Hussayen knew and
intended that his computer services and expertise would be used
to recruit and raise funds for violent jihad around the world.”

have used the Patriot Act's prohibition against providing “expert
advice and assistance” to go after al-Hussayen. If they succeed,
the line between constitutionally protected advocacy and illegal
material assistance will be virtually eradicated, as will the
line that had been drawn – until now – between one who moderates
an online discussion group and those who post messages. Worse,
the Wall Street Journal reported earlier this month that
prosecutors in the case plan to call defendants who pleaded guilty
in other material-assistance terrorism cases as witnesses against
al-Hussayen. They will tell the jury that they were influenced
to commit their crimes partly by al-Hussayen's Web site and discussion
group. That a moderator of a Web site or online discussion group
can be held criminally responsible for acts committed by his readers
and words written by his subscribers is an innovation with staggering
implications for free speech and free press. If successful, al-Hussayen's
prosecution will have a profound chilling effect not just on authors,
but on those who publish, edit, and promote discussions of controversial

The “expert
advice and assistance” provision of the Patriot Act has recently
come under fire. In Humanitarian Law Project v. Ashcroft,
the restriction was challenged by a variety of groups that provide
humanitarian and legal assistance – as well as perform political
advocacy for – organizations ranging from Sinn Fein and the Tamil
Tigers to Palestinian humanitarian-relief foundations. The plaintiffs
in that lawsuit, whose actions have been curtailed by the new
law, charged that it unconstitutionally infringes on their freedom
of speech. California federal district-court judge Audrey Collins
ruled in favor of the plaintiffs and enjoined Ashcroft from enforcing
the provision within the district. (Collins elected not to issue
a national injunction.) It remains to be seen, however, how the
Court of Appeals for the Ninth Circuit (which includes California)
will rule on this issue. The case may end up before the Supreme

meanwhile, is seeking to expand these material-support laws even
further. In testimony before the House Judiciary Committee on
June 5, 2003, the attorney general said that anti-terrorism laws
must be “clarified” so the government can charge people who provide
any kind of assistance, no matter how innocuous, to terrorist
groups as “material supporters” of terrorism. “[W]e need for the
law to make it clear that it's just as much a conspiracy to aid
and assist the terrorists, to join them for fighting purposes,
as it is to carry them a lunch,” Ashcroft said. (Apparently this
may already be a crime and we just don't know it – recall, after
all, that Mohamed K. Bellahouel reportedly first came to the government's
attention because he had served food to two of the 9/11 hijackers.)

proposed “clarification” of the material-support laws would allow
him to cast a much wider net, potentially ensnaring anyone who
has spent a significant amount of time with a “terrorist.” To
be effective, such vague and expansive laws need not even be tested
in the courts; their very existence would serve as a deterrent
to all but the most brave (or foolish, as the case may be). The
Supreme Court has, in the past, struck down vague and overly broad
laws that impinge on First Amendment rights because even when
rarely enforced, such statutes impose a “chilling effect” on free
speech and its close relative, free association. But it is hardly
clear that courts will do so again, given the countervailing pressures
of the war on terror and Ashcroft's national-security claims.

While we
wait to see whether the high court will protect the First Amendment,
the Justice Department continues to test the boundaries of the
Patriot Act's material-support statute. Take the case of Lynne
Stewart, a radical and outspoken attorney for accused terrorist
Sheikh Abdel Rahman. Last year, Stewart was indicted for “material
support” of terrorism because she organized conference calls for
her client; according to the Justice Department, this constituted
the providing of “communications equipment” to a terrorist group.
Stewart is further alleged to have served Rahman's organization
in a “quasi-employee” capacity. Judge John Koeltl of the federal
district court in New York dismissed the charges on July 22, 2003,
as a vague and overbroad application of the statute: “[B]y criminalizing
the mere use of phones and other means of communication, the statute
provides neither notice nor standards for its application.” Moreover,
he wrote, “the Government fails to explain how a lawyer, acting
as an agent of her client, an alleged leader of an FTO [foreign
terrorist organization], could avoid being subject to criminal
prosecution as a u2018quasi-employee' allegedly covered by the statute.”

Judge Koeltl
clearly realized the level of discretionary power the “quasi-employee”
label puts in the hands of prosecutors. “[W]hen asked at oral
argument how to distinguish being a member of an organization
from being a quasi-employee, the government [prosecutor] initially
responded, u2018You know it when you see it,'” Koeltl observed. The
chilling effect on both speech and effective legal representation
is obvious.

responded to Koeltl's ruling by reframing the indictment, charging
Stewart under a different provision of the “material support”
statute. According to the new indictment, the fact that Stewart
read correspondence to her client and released press statements
on his behalf constituted provision of personnel to a terrorist
conspiracy. It remains to be seen whether the revised indictment
will stand.

A long and
complex assault on liberty is under way – an assault aimed
not at the fringes of liberty, but at its core: the rights that
form the threshold between freedom and tyranny, the rights that
allow citizens to push back against government excess. And if
we let that assault push us across this threshold, we will find
it very difficult to return, for we will have lost the essential
tools that free people have historically wielded.

Even those
who shrug at lost liberties – who believe that it's worth
paying the price of core freedoms to defeat terrorism – would
be wise to worry about these developments. After all, one consequence
of free speech is that it makes it easier to detect and reverse
grave errors. If the head of state is indeed a fool, to use Nikita
Khrushchev's worrisome but instructive joke, national security
is hardly enhanced by hiding his mistakes.

3, 2004

A. Silverglate [send
him mail
], co-author of The
Shadow University
, is an attorney with Boston's
Good & Cormier. Carl Takei [send
him mail
] is a writer, paralegal, and soon-to-be law student
at Boston College Law School. This article, from the Boston
, is reprinted with permission.

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