WAR, TRANSPARENCY, and the ACLU

There is no doubt that a certain amount of transparency is essential for a modern democracy to function honestly. However, taken to the extreme, complete transparency would effectively make our National Security impotent and threaten the ability of the democracy to secure its very existence. There is a line that must be carefully walked. We must maintain common sense, especially in times that enemies threaten our very existence. We can not be so transparent that our enemies can see through us, and know our techniques and plans to fight them and protect ourselves against them. We should never cede our security to exist over to a utopian ideological dream of a completely transparent government. It is also important to have government watchdogs keeping an eye on government from abusing and overclassifying information that the public has a right to know. The danger lies in allowing too much liberty, especially to absolutist organizations like the ACLU, in that decision making process.

The Investor's Business Daily bring up some very good points in reference to the recent backing down of the government in trying to obtain a classified document from the ACLU.

"The government blinked," gloated ACLU executive director Anthony Romero.

Judge Rakoff is notoriously liberal, having declared the death penalty unconstitutional in 2002 (a ruling quickly overturned), and earlier this year forcing the Pentagon to make public thousands of pages of information on suspected terrorist detainees at Guantanamo Bay. So it's understandable for prosecutors to not want to fight an unwinnable battle.

Are we nearing the day, however, when the ACLU has our legal system so wrapped around its finger that government secrets can no longer be kept from terrorists? Consider these points:

• The ACLU's Romero called the subpoena battle "a fight not over a document but over the principle that the government cannot and should not be allowed to intimidate and impede the work of human rights advocates like the ACLU who seek to expose government wrongdoing."

But if leftist activist groups or journalists, rather than the freely-elected U.S. government, decide what is legitimately secret and what is "intimidation," there's little that will remain secret.

Indeed, the government did blink. However, they caved in because they had a losing legal argument, not because they have no right to supress secret information from activist groups and the public at large. Before we hand the decision making process of what should or shouldn't be secret or in the public interest to extreme partisan organizations like the ACLU, we should really take a look at just how reckless they have been with such information in the past. Indeed, if we leave it to groups like the ACLU we might as well write the suicide note of our nation on the back of the Constitution.

There is probably no other issue as fragile to the preservation of our liberties than a careful balance between civil liberties and our national security. To its credit, the ACLU recognizes the danger if the scales are tipped too far to the side of national security, however it doesn’t seem to acknowledge the danger if the scales are reversed. So, let us take a look at some of the extreme examples where the ACLU's absolutist views actually endanger our national security.

In particular let us look at their attitude towards the intelligence community and secret information in general.

When it comes to drawing the line between classified information and national security the ACLU's record has never leaned toward the side of caution or national security. They consistently defend leakers as brave "whistleblowers." Even after the NY Times leaked details about the vital NSA program, the ACLU wanted more to come out in the open. They have even defended leaks on vital programs like SWIFT, in which we track terror finances, where there was absolutely nothing that even suggested government wrongdoing. They have even fought for accused enemy prisoners to be allowed to see classified evidence against them. The fact that our enemies learn and adjust from such traitorous leaks never seems to phase them.

More Points from the Investor's Business Daily:

The ACLU boasts that its legal efforts have made public "more than 100,000 pages of government documents" regarding the interrogation of suspected terrorists. It has posted many of these documents on its Web site in an effort to shut down the program.

But President Bush's policy of tough interrogation has secured information that has foiled numerous terrorist plots, saving thousands of lives. They include jetliner hijacking schemes targeting buildings on both the East and West coasts, another targeting Heathrow Airport in London, plus plots to destroy ships in both the Persian Gulf and the Strait of Hormuz, and Jose Padilla's plan to blow up high-rise apartment buildings in the U.S.

Intelligence information key to preventing terrorist acts has also come from the president's other homeland security policies, like the National Security Agency's wiretapping program. But ACLU lawyers are aggressively trying to shut those efforts down in several jurisdictions.

So, let us take a look at the ACLU's real attitude towards the intelligence community.

To the ACLU, CIA means "Controlling the Intelligence Agencies." That's the title they gave to Policy #117. But even that is an understatement of what this particular policy calls for. "Completely undermining the Intelligence Agencies" would be a more appropriate title. It starts out badly and then gets worse.

"Control of our government's intelligence agencies demands an end to tolerance of "national security" as grounds for the slightest departure from the constitutional boundaries which limit government conduct in other areas."

Of course, its been obvious for nearly 70 years that protecting America's national security is certainly not something the ACLU favors.

Here are some of the specific controls called for in Policy #117:

Limit the CIA, under the new name of the Foreign Intelligence Agency, to collecting and evaluatiing foreign intelligence information. Abolish all covert operations.

Limit the FBI to criminal investigations by elimimnating all COINTEL-PRO-type activity and all foreign and domestic intelligence investigations of groups or individuals unrelated to a specific criminal offense.

Prohibit entirely wiretaps, tapping of telecommunications and burglaries.

Restrict mail openings, mail covers, inspection of bank records, and inspection of telephone records by requiring a warrant issued on probable cause to believe a crime has been committed.

Prohibit all domestic intelligence and political information-gathering. Only investigations of crimes which have been, are being, or are about to be committed may be conducted.Twilight of Liberty

Two former members of the ACLU, Richard and Susan Vigilante, conducted a thorough analysis of the ACLU spelled out by the Union's Center for National Security Studies.

They wrote:

The ACLU opposes, and has fought in either Congress or the courts, virtually all "covert action," most "clandestine intelligence" gathering (i.e. spying), and in one case aid to an important U.S. ally with a poor human rights record. The net effect of these efforts has been to hinder U.S. opposition to Communist expansion. The ACLU may, at some point, have undertaken some major initiative that advanced U.S. interests and hindered Communist expansion, but our research never turned one up and no ACLU leader ever mentioned one to us.

In other words, strip the intelligence agencies useless.

One of the most revealing occurances towards the ACLU’s absolutist position on national security and its recent evolution can be seen in the action the board of directors took at its Oct 1989 meeting: It dropped section (a) from its policy, “Wartime Sedition Act.” Before, the ACLU held that it “would not participate (save for fundamental due process violations) in defense of any person believed to be “cooperating” with or acting on behalf of the enemy.” This policy was based on the recognition that “our own military enemies are now using techniques of propaganda which may involve an attempt to prevent the Bill of Rights to serve the enemy rather than the people of the United States.” In making its determination as to whether someone were cooperating with the enemy, “the Union will consider such matters as past activities and associations, sources of financial support, relations with enemy agents, the particular words and conduct involved, and all other relevant factors for informed judgement.”Twilight of Liberty

All of this is now omitted from the Official ACLU policy! This is not the kind of organization one should trust when it comes to secrets that need to be kept from enemy eyes.

The ACLU's extremist position towards classified information can be seen in the very case they have been citing recently, the Petagon Papers.

The Pentagon Papers case shows how extremist the ACLU can be. In that suit, the Supreme Court ruled against the efforts of the Nixon Administration to suppress documents that were a veritable history of U.S. involvement in the Vietnam War. The ACLU, which filed an amicus, was happy with the immediate outcome-the newspapers could run copies of the Pentagon Papers-but was less than pleased with the high court's reasoning. The Union was disturbed that the Supreme Court gave life to the idea that the president and the Congress had a right to restrain the press in bona fide instances of national security. It wanted nothing less than an absolute ban on prior restraint. Alexander Bickel, the brilliant constitutional scholar who argued the case against the government, criticized the unreasonableness of the ACLU stand. He accused the Union of being too ideological, labeling the absolutist position "foolish to the point of being almost unprofessional." Like most students of the Constitution, Bickel was generally opposed to prior restraint but nonetheless conceded that there may be times when not to invoke prior restraint may be disastrous to the well-being of the republic. This is something the ACLU has not acknowledged and will not acknowledge.

In the recent case where the government folded in their attempt to get 'secret' documents back from the ACLU their first mistake was in their approach. Their big mistake that they continue to make is in not aggressively investigating, prosecuting, and punishing the traitors that leak and publish the secret matters of national security for all, including our enemies, to know.

As the lawyers at Powerline have pointed out, in the case of the NSA leak, federal law is 18 U.S.C. § 798, a law that precisely prohibits leaks of the type of classified information disclosed in the story. Subsection (a) of the statute provides:

Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
Shall be fined under this title or imprisoned not more than ten years, or both.

Powerline further points out that in cases like that of the NSA leak, the Pentagon Paper case the ACLU loves to cite so much, only applies to prior restraint and not to punishment after the crime of publishing has been committed.

Indeed, in their concurring opinions, Justices Douglas and White cited and discussed 18 U.S.C. § 798 as the prototype of a law that could be enforced against a newspaper following publication of information falling within the ambit of the statute. Justice White noted, for example:

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

Make sure to read the entire analysis.

When it comes to national security and classified information the ACLU has a long record of recklessness. When it comes to keeping our government from wrongdoing there are many suggestions that could be pursued to alleviate the problem. Allowing the press and the ACLU unfettered liberty to make the call on what can and can not be classified is a death wish. The government needs to step up and aggressively investigate and prosecute those that act, participate, aid and protect in the unlawful disclosure of our national security secrets.

The Investor's Business Daily sums it all up well:

The civilized world simply can't win against the forces of Islamo-fascism if we are deprived of the vital weapon of secrecy. Letting the ACLU force us to operate according to its radical ideology of "open government" would be like telegramming Hitler that we plan to invade Normandy.

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