Glenn Greenwald, in his piece Hanging the Messenger, notes that since the New York Times first disclosed the unambiguous fact that President Bush ordered his administration, specifically the NSA, to eavesdrop on American citizens - or the data mining equivalent of eavesdropping on voice, email and web use - with no judicial oversight and outside of the clear and explicit FISA law, the attacks on the media by the administration and the supporters of the administration have "seriously escalated." Have they?

Well, we're talking about calling the Times and its sources "subversives" and "traitors," and openly claiming that they are guilty of treason.

But that is to be expected. That is the nature of political discourse these days.

Still, this opinion piece from the New York Post has been going around - The Gray Lady Toys With Treason –

... the paper has done more than merely try to embarrass the Bush administration these last few months.

It has published classified information - and thereby knowingly blown the covers of secret programs and agencies engaged in combating the terrorist threat.

No matter that the Times agreed to withhold specific information to prevent just that, the idea is no one was supposed to know about all this in even a general way.

As mentioned elsewhere, the "treason" idea has been discussed on Fox News and it's all over the conservative media. It's the current talking point.

Of course, a lot of this is deflection.

Were you're a bad guy, plotting nefarious deeds, you would assume the United States was doing all it could to find out about it, and they would be all over any kind of "signal traffic" available. And you would also assume they had all sorts of gee-whiz technology to do the job. Of course it would be to your advantage to assume the legal restrains on analyzing the "signal traffic" of American citizens might give you some sort of edge. But then too you'd know the administration could obtain warrants to bypass those restraints, or if not, do it anyway and fill in the paperwork within fifteen days. There's no safety there. The bad guys know.

So what was actually revealed?

The Times story was about how the administration assumed the authority to bypass the law and not seek warrants, and that makes the story not about the program. The story is about the president claiming, as he still claims, that he has the authority to break any law directly or tangentially related to the "war." It's a classic. And there's a back-story too, as was implied by the Times, that the new gee-whiz technology - sifting virtually all voice and email traffic for patterns and then honing in on what looks interesting - may need some attention. Is this really a classic "fishing expedition" with no probable cause - and thus not only massively intrusive on any expectations of privacy, in a Big Brother way, and also clearly illegal - or is it something we need now to make legal given the way the world is these days, or as we are told the world is by our government?

You don't want to talk about that?

Well, you can talk about the New York Times, as Michelle Malkin does here in a general way - "So, which side is The New York Times on? Let 2005 go down as the year the Gray Lady wrapped herself permanently in a White Flag."

Greenwald notes that sort of thing, a form of political hyperbole and only meant symbolically, and differentiates it from this comment on the Times –

When I say "treason" I don't mean it in an insulting or hyperbolic way. I mean in a literal way: we need to find these 21st century Julius Rosenbergs, these modern day reincarnations of Alger Hiss, put them on trial before a jury of their peers, with defense counsel. When they are found guilty, we should then hang them by the neck until they are dead, dead, dead.

No sympathy. No mercy. Am I angry? You bet I am. But not in an explosive way. Just in the same seething way I was angry on 9/11.

These people have endangered American lives and American security. They need to be found, tried, and executed.

He cites several of these sorts of remarks. They're all over.

He doesn't cite the more scholarly assessments like this from Marc Schulman at American Future - on what the Times covered and in what manner and with what emphases. Schulman is implicitly not pleased, and clearly puzzled and amazed, but he's not calling for anyone to be strung up.

But is Greenwald right is assuming discussions of the former sort - all this talk of treason and hanging people - "have the effect, by design, of intimidating the nation's media into remaining quiet about illegal acts by the Administration?

By design? Is there a plot?

As he comments, with an Administration which throws American citizens indefinitely into military prisons without so much as charges being brought and with access to lawyers being denied, or which contemplates military attacks on unfriendly media outlets - that business about Bush wanting to bomb the Arabic television network al-Jazeera and Tony Blair talking him out of it (see this) - "isn't it just inevitable that all of this talk about treason and criminal prosecution of the Times and its sources is going to have some substantial chilling effect on reporting on the Administration's wrongdoing?"

Well, it would make one more careful.

And as he notes, none of this is new, as the same New York Times once before got their hands on classified documents, that time also about government misconduct. Think back on the Vietnam War and Nixon administration arguing publication of that classified information was criminal and endangered national security.

The Supreme Court ruled otherwise here - New York Times Co. v. The United States (the Pentagon Papers Case) 403 U.S. 713 (1971) - the Nixon administration could not prevent the Times from publishing.

From Justice Hugo Black's concurring opinion (emphasis added) –

Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

... Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history.

... In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.

Ah those were the days.

Now?

"A Republican senator on Saturday accused The New York Times of endangering American security to sell a book by waiting until the day of the terror-fighting Patriot Act reauthorization to report that the government has eavesdropped on people without court-approved warrants." - that's John Cornyn of Texas as reported here.

The president at his first press conference on the Times revelations with this - "There is a process that goes on inside the Justice Department about leaks, and I presume that process is moving forward. My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy."

Here we go again. Yes, "aiding and abetting the enemy" are the core words that define treason in the statutes. That's a threat.

Greenwald - "With a Congress that is controlled by Republicans and hopelessly passive, and with a judiciary increasingly packed with highly deferential Bush appointees, the two remaining sources which can serve as meaningful checks on Executive power are governmental whistle-blowers and journalists, which is exactly why the most vicious and intimidating attacks are now being directed towards them."

Yes, that may be true. But this too is a matter of not wanting to talk about the real issues.

Should the president have to follow the law? All laws? Are there some we can let him break? Under what circumstances? Are there others he just can't break? Who decides?

And we have new technology that can do amazing analyses of an ocean of rapidly changing data, so should there be some sort of oversight on how it's used? Or should we just trust that these folks wouldn't misuse the technology? Have they earned our trust? Have they ever misled us? Do we even have an alternative to trusting them?
Don't like those questions? Change the subject. Attack.

This stuff really raises some issues. "Yeah, well, you're brother-in-law is gay!"

Where does that get us?