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Monday, November 26, 2018
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The First Amendment: 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.
Leak policies
put public’s
right to know
in jeopardy
BY JACK FRUCHTMAN
For The Baltimore Sun
The press is under serious attack, but not only
because President Donald Trump prefers to call
it “the enemy of the people” and revoke creden
tials at will. Waiting in the wings may well be
prison terms.
Between 1917 and 2009, only one person was
convicted of violating the Espionage Act for leak
ing classified information to the press.
Then the Obama administration came along
and prosecuted eight government whistleblow
ers at a far higher rate than those undertaken
by all previous presidential administrations.
These included Thomas Drake, Chelsea (for
merly Bradley) Manning, and (almost) Edward
Snowden.
The Trump administration continues the trend.
On Oct. 18, former FBI agent Terry J. Albury
was sentenced to four years in federal prison for
leaking classified information to the press after
he became frustrated by the agency’s abuse of
immigrants, including racism and xenophobic
attitudes. He sent secret FBI files to the media,
which published it.
The Espionage Act passed Congress in 1917
just after the United States entered World War
I. Legally and constitutionally the act raised an
ironic question: How could authorities enforce
it in light of the First Amendment? A good deal
depended on the “intentions” of the speaker or
writer.
The old English common-law principle regard
ing expression was based on “the rule of proxi
mate causation;” that is, the relationship between
spoken or written words and subsequent illegal
actions.
The first key case before the Supreme Court
involved Charles T. Schenck, secretary of
the Socialist Party in America, who printed,
distributed and mailed to draft-eligible men
information that advocated opposition to U.S.
involvement in the war. There was no leak to
the press, but his conviction was upheld by the
Supreme Court.
Writing for the court, Justice Oliver Wendell
Holmes ruled that a court must decide whether
words that a defendant used were “used in such
circumstances and are of such a nature as to
create a clear and present danger that they will
bring about the substantive evils that Congress
has a right to prevent. ”
During the Obama administration, Thomas
Drake, a senior executive at the National Secu
rity Agency, discovered misspent funds in “Trail-
blazer,” a government program involving spying
on American citizens.
In 2010, after Drake determined that the proj
ect violated the Fourth Amendment protections
against unreasonable searches and seizures, he
informed the inspector general of the N.S.A. and
the Department of Defense, and the government
ended the program at a cost of $1 billion.
Because Drake believed that Americans had
a right to know about government wrongdoing,
he recounted his findings to a Baltimore Sun
reporter, Siobhan Gorman.
A federal grand jury indicted Drake for violat
ing the Espionage Act for leaking the information
to the press. (He pleaded guilty to a misdemeanor
computer violation and received no jail time.)
One of the most publicized cases occurred in
2011 when Army Pfc. Bradley Manning, now
Chelsea Manning, released hundreds of thou
sands of national security documents and video
recordings tapes to WikiLeaks.
Like Drake, Manning was indicted for violating
the Espionage Act. In 2013, after announcing that
she was a woman, Manning was sentenced to 35
years in prison, the longest in a leak case, and dis
honorably discharged from the Army.
President Barack Obama commuted her sen
tence, after which Donald Trump as a presiden
tial candidate called her an “ungrateful traitor.”
Meantime, a National Security Agency con
tractor, Edward J. Snowden, sent to the press
hundreds of thousands of documents that showed
the United States routinely collected information
on its citizens. Snowden ultimately wound up in
Russia, where he remains today under political
asylum.
Like Manning, he claimed that Americans had
a right to know that the government spied on
them. The State Department has asked the Rus
sian government to extradite him to the United
States to stand trial for violating the Espionage
Act.
And now Donald Trump and his Department
of Justice want to stop leaks of government
wrongdoing to the press by intimidating potential
whistleblowers like Albury and others.
In August, a woman charged with leaking a
government report on Russian hacking in 2017
was sentenced to more than five years in prison.
And last month, the Justice Department
charged a Treasury Department official with
leaking information about former Trump cam
paign manager Paul Manafort’s secret wire
transfers. Other indictments are presumably
pending.
So far, no reporters have been targeted. But
given the president’s attacks on “fake news,”
which is news he does not like or want the public
to know, and claims that the press is the “enemy
of the people,” the next in line may well be
reporters and editors.
Jack Fruchtman teaches constitutional law and
politics at Towson University in Maryland.
Conservative lawyers unite
Checks and Balances group forms to uphold constitutional law
BY JOHN BAER
Philadelphia Dally News
A recent annual convention in Wash
ington of the conservative Federalist
Society — also known as President
Donald Trump’s sole-source supplier
of judges — included something of a
surprise.
It was the emergence of a group of
conservative and libertarian lawyers,
mostly society members, concerned
about Trump’s bull-in-the-china-shop
regard for basic rules of law.
Think, for example, of Trump’s pro
posed executive order to nullify the 14th
Amendment guarantee of birthright
citizenship.
The new group, Checks and Balances,
said it is “standing up for the principles
of constitutional governance.”
And this is from Trump’s side of
the aisle. And his own isle of judicial
nominees.
It started with 14 signers, including
former White House and Justice Depart
ment officials in past Republican admin
istrations, litigators, law professors, and
former Homeland Security Secretary
and Pennsylvania Gov. Tom Ridge.
It held a luncheon for Federalist Soci
ety convention attendees, quickly assem
bled a mailing list of hundreds, and
started a website and a Twitter account.
The group was organized by conserva
tive lawyer and Trump critic George
Conway, a society member and husband
of Trump adviser Kellyanne Conway.
But he and others note that the group’s
efforts aren’t aimed at the Federal
ist Society (whose mission statement
is similar to Checks and Balances’),
and emerge despite satisfaction with
Trump’s judicial picks, especially for the
Supreme Court.
So, not about politics. Not about
Trump. Except that it’s clearly about
Trump.
One of the group’s principals is Jona
than Adler, director of Case Western
Law School’s Center for Business Law
and Regulation.
“The goal is to make sure there’s a
right-of-center voice for rule-of-law val
ues ... to make sure such values and the
power of truth are preserved at a time in
which partisanship and tribal loyalty risk
undermining them,” Adler said.
Impetus for the group came out of con
cern that after this year’s midterm elec
tions, the White House would seek more
control over the Justice Department and
special counsel Robert Mueller’s inves
tigation into Russian involvement in the
2016 presidential election.
The immediate post-midterms firing
of Attorney General Jeff Sessions and
the appointment of his chief of staff, Matt
Whitaker, as acting attorney general did
not ease those concerns.
Whitaker’s promotion brought bipar
tisan criticism and litigation — a con
stitutional challenge from Democratic
senators arguing that he requires Senate
confirmation.
Adler said Checks and Balances
immediately drew fire from right-wing
groups such as American Greatness and
on social media, including charges of
“giving comfort to the enemy” and being
financed by wealthy liberals.
But, he said, “none of us are getting
paid to do this... (and) to believe in the
values of law and believe they are under
siege does not put you on any one part of
the political spectrum.”
Wider areas of concern to Checks and
Balances include preserving the separa
tion of powers and the independence of
the criminal justice system and the judi
ciary — all of which should come before
politics.
Ridge told the New York Times that
he’s concerned about the independent
judiciary. “Regardless of whether you’re
a Republican or Democrat, liberal or
conservative, you embrace the rule of
law,” he said.
The question: Can upstart movements
such as this be sustained and make a
difference and, more immediately,
have any impact on the actions of the
president?
Adler said he hopes the group
expands, holds events to highlight its con
cerns, and conducts forums for debate as
constitutional issues arise.
Constitutional law professor Bruce
Ledewitz of Duquesne University Law
School calls the movement “very encour
aging,” but hopes it extends beyond
tracking Trump to broader issues related
to fighting partisanship in the legal
process.
He also said, “I would love to see a
similar movement from lawyers on the
left.”
Still, Checks and Balances seems like
a well-intentioned, right-minded idea, in
the category of: What could it hurt?
"Now, let's see...what was I going to remember?"
JIM POWELL I For The Times
Media can help slow climate change
BY VIN0D THOMAS
For The Baltimore Sun
As extreme weather strikes with
greater frequency and ferocity — espe
cially on the East and West coasts of the
U.S. — media attention rightly focuses
on the often heroic response of the emer
gency services. What is missing from
these accounts, however, is a similar
emphasis on climate change as a source
of the increasing extremity of these
events, and consequently, on preventing
ever-worsening weather calamities.
It is even more problematic when the
causes of these events are misdiagnosed,
as when the president attributed Califor
nia’s worst forest fires ever to “poor for
est management.”
The upshot of failing to make the cli
mate change connection is that actions
continue to be limited to dealing with
disasters after they strike without taking
urgent steps to contain runaway global
warming. As climate inaction continues,
weather disasters are poised to reach a
point where no amount of good manage
ment will be enough.
The 2018 report from the United
Nations is clear: Human actions and
greenhouse gas emissions are contribut
ing to global warming, and unless the
planet’s temperature increase (from
pre-industrial times) is kept to below 1.5
degrees centigrade, weather catastro
phes will go over the tipping point.
There are many policy and technologi
cal avenues for climate mitigation, but
they all start with a change in our mind
sets to link the new weather extremes
to global warming. That is necessary if
a winning political platform for climate
action is to be created. Political support
and resources for climate abatement will
unleash the innovation and adaptation in
ways we may not have anticipated. This
has been seen time and again in other
global crises, be it tackling terrorism or
pandemics, where treating the problem
had to be complemented by attending to
the root causes.
But unlike terrorism and pandemics,
climate change presents a fuzzier — and
potentially deadlier — chain that con
nects cause and effect. The effects of
climate change still tend to be viewed
as something over the horizon rather
than here and now. This perception must
change: In 2017 and 2018 the worst floods
and fires on record were seen not only
across the globe but on United States’ soil
in California, Texas, Florida and Puerto
Rico.
In addition to drawing broad links
between anthropogenic warming and
disaster trends, scientists are also begin
ning to attribute the higher probability of
individual events to climate change, for
example, the 2017 Hurricane Harvey in
Texas, the 2013 Typhoon Haiyan in the
Philippines and the 2013 Australian heat
waves.
Drawing on this type of evidence,
news reporters must make the climate-
disaster connection so that people see
the extremity of the episodes as manifes
tations of global warming. The resulting
shift in understanding should also trig
ger a political movement to see climate
action as a pro-progress agenda, and a
political platform that can help win elec
tions. Florida’s Democratic candidate
for governor, Andrew Gillum, developed
a plan to preserve the state’s natural
resources, curb harmful blue-green algal
blooms and red tide, and invest in renew
able energy to fight climate change.
We need to see environmental agendas
like this among the criteria for winning
elections.
To spur action, we also need to view
weather disasters as local affairs. The
wildfires that swept across the town
of Paradise in California in just eight
hours are every bit local. So is Hurricane
Michael, which hammered Florida’s
Panhandle. These events also need to
be seen as national disasters rather than
natural disasters.
The United States is the second largest
emitter of greenhouse gases after China.
The lowering of power plant emissions
standards by the administration and
encouraging the use of fossil fuels will
only aggravate sea-level rises along the
country’s long coastlines.
Television and newspapers have the
biggest bully pulpit in the United States.
The current administration’s policies
show a reckless disregard for the factors
behind the increase in weather disasters,
endangering the well-being of people
for years to come. The media can make
a difference in this unfavorable setting
by connecting the dots between climate
and disasters in real time and helping to
make environmental care a live political
agenda.
If enough people recognize the true
climate-disaster link, positive actions
will follow.
Vinod Thomas is author of a 2018 book
“Climate Change and Natural Disasters”
and a former senior vice president at the
World Bank.
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