[The U.S.] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
And yet, though that Amendment has held fast since it was adopted in 1791, the notion of a free press is under heavy attack today.
For example, Judith Miller of the New York Times has been attacked by her peers and by the public for her pre-war reporting on Iraq's weapons of mass destruction. But those attacks are nothing compared to the assault on Miller by the U.S. government.
"I could be going to jail for a story I didn't write, for reasons I don't know, for something that may not actually even be a crime," she told fellow investigative journalist Lowell Bergman in a March 17 event at the University of California at Berkeley Journalism School.
Once upon a time, the American press was more aggressive in defending or extending the rights of the press. Or at least that's the message I got reading Anthony Lewis' review of Inside the Pentagon Papers. In that review, Lewis quotes Professors Harold Edgar and Benno Schmidt Jr. of the Columbia Law School:
... The New York Times, by publishing the [Pentagon] papers...demonstrated that much of the press was no longer willing to be merely an occasionally critical associate devoted to common aims, but intended to become an adversary threatening to discredit not only political dogma but also the motives of the nation's leaders.
Later in that review, Lewis gloomily concludes:
The crucial lesson of the Pentagon Papers and then Watergate was that presidents are not above the law. So we thought. But today government lawyers argue that the president is above the law—that he can order the torture of prisoners even though treaties and a federal law forbid it.
John Yoo, a former Justice Department official who wrote some of the broad claims of presidential power in memoranda,... [said] recently that Congress does not have power to "tie the president's hands in regard to torture as an interrogation technique." The constitutional remedy for presidential abuse of his authority, he said, is impeachment.
Yoo also [said] that the 2004 election was a "referendum" on the torture issue: the people had spoken, and the debate was over. And so, in the view of this prominent conservative legal thinker, a professor at the University of California law school in Berkeley, an election in which the torture issue was not discussed has legitimized President Bush's right to order its use.
