The Nation

Justice Department employees at an event with Attorney General Eric Holder (left) and Michelle Obama. (AP Photo/Susan Walsh)

“The burden is always on the government when they go after private information—especially information regarding the press or its confidential sources.”
      —Senate Judiciary Committee chairman Patrick Leahy

When John Lindsay was elected to the US House of Representatives in 1958, the Republican lawyer from Manhattan arrived on Capitol Hill as a man on a mission. “Often alone on the House floor,” recalled Nat Hentoff, “Lindsay wielded the Bill of Rights against its enemies.”

Lindsay was absolutely determined to reinvigorate the bill of rights, especially the First Amendment. After a decade of “red scares” and McCarthyism, he spoke up for dissidents. He hailed the right to assemble and to petition for the redress of grievances. And he championed a free press as the essential underpinning of a free society.

Lindsay developed a reputation for disregarding party lines. He was a Republican, but if the Republican president was wrong, he would not allow party ties to temper his objections. And if the members of his caucus disregarded civil liberties, they were more likely to get an earful from Lindsay than from the Democrats.

Around the time that Lindsay was elected mayor of New York, California Democrat Don Edwards, a former FBI agent, arrived to take up the fight. For three decades, Edwards checked and balanced not just Republicans but Democrats who failed to recognize the rights of citizens and the essential role of a watchdog press. When his Democratic colleagues in the House of Representatives went after reporter Daniel Schorr for revealing details of an intelligence committee report, Edwards ripped his colleagues. “The freedom of the press is very much involved here,” the congressman declared. “By bringing it up this way and naming Mr. Schorr, there is a very chilling effect on a reporter’s right to receive classified information.”

We remember Lindsay and Edwards because of the standard they set. They understood that the defense of the Bill of Rights in general, and freedom of the press in particular, must never be compromised by partisanship.

That’s why it was so very important when, after it was revealed that the Department of Justice had obtained the phone records of Associated Press journalists, both Patrick Leahy and Bob Goodlatte spoke up.

Leahy, the Vermont Democrat who chairs the Senate Judiciary Committee, and Goodlatte, the Virginia Republican who chairs the House Judiciary Committee, come from different political parties, different ideological perspectives and different experiences.

Yet, they essentially agreed after learning that federal prosecutors stood accused of secretly obtaining two months’ worth of telephone records from the journalists—in what the news agency described Monday as “a serious interference with AP’s constitutional rights to gather and report the news.”

Both men are well aware that the Justice Department was pursuing alleged leaks by a government official, and that national-security issues had been raised. But they are also aware of the guidelines established in the Watergate era to balance national security and First Amendment concerns. And in the spirit of Lindsay—who said, “Those who suppress freedom always do so in the name of law and order”—Leahy and Goodlatte have both recognized an essential duty to defend press freedom.

The wrangling over government intrusion on what is supposed to be a free press is as old as the Republic. John Adams and Thomas Jefferson clashed over the issue before the Bill of Rights was ten years old, and no decade has passed since then without a dispute. As recently as 2008, the FBI apologized to The Washington Post and The New York Times when it was revealed that the agency had improperly obtained the phone records of reporters in Indonesia.

Even if the fight is an old one, however, it is essential that officials with oversight authority move immediately when it rises anew.

That’s why the rapid responses of Goodlatte and Leahy were as encouraging as they were necessary.

Both Leahy and Goodlatte raised real concerns and demanded real answers from Department of Justice officials who seem to have forgotten that a free press must be free from arbitrary and overreaching government surveillance.

“Any abridgement of the First Amendment right to the freedom of the press is very concerning,” said Goodlatte. “The House Judiciary Committee will thoroughly investigate this issue and will also ask Attorney General Eric Holder pointed questions about it at Wednesday’s oversight hearing.”

Goodlatte’s statement was valid—and important.

But it was even more important that Leahy voiced his parallel concern.

“The burden is always on the government when they go after private information—especially information regarding the press or its confidential sources,” said the Senate Judiciary Committee chairman. “I want to know more about this case, but on the face of it, I am concerned that the government may not have met that burden. I am very troubled by these allegations and want to hear the government’s explanation.”

Attorney General Holder’s testimony Wednesday before the House Judiciary Committee was hardly revealing, as Holder explained that he had recused himself from the matter.

But that can’t be the end of the inquiry—or the response to it.

Strikingly, Leahy was backed up in his call for answers and action by an angry Senate Majority Leader Harry Reid, D-Nevada, who described the Justice Department’s seizure of the phone records as “inexcusable” and added, “There’s no way to justify this.” Reid went even further, saying Tuesday, “In my career, I’ve stood consistently for freedom of the press from encroachment by the national security community and will continue to do that. It’s an issue I feel very strongly about and will look further whether more legislative action is needed in this regard to secure freedom of the press.”

What might that mean? With encouragement from the White House, Senator Chuck Schumer, D-New York, is preparing to reintroduce the media shield law that in 2009 died in the Senate. Among other things, the proposed law gives journalists who have been served subpoenas the option of appealing to a federal judge when they don’t want to reveal their sources. It then falls to the jurist—as opposed to the Department of Justice—to determine whether the public interest in a story trumps the government’s demand that sources be revealed,

“This kind of law would balance national security needs against the public’s right to the free flow of information,” argues Schumer. “At minimum, our bill would have ensured a fairer, more deliberate process in this case.”

When the Department of Justice in a Democratic administration is accused of wrongdoing, it is vital that Democratic leaders in Congress step up to ask the tough questions—just as it is vital for Republican members of Congress to be out front to check and balance Republican administrations.

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Congressional oversight often comes with a partisan edge, and that’s not entirely inappropriate. Partisanship animates and energizes oversight committees, ensures that inquiries are pursued and rejects bureaucratic responses.

Ultimately, however, congressional oversight is most effective when it comes from members of the party that controls the executive branch. The United States does not have a parliamentary system of government. Rather, our Constitution outlines a separation of powers between the branches of government. The separation was not designed to encourage partisan division but to assure that there would always be a checking and balancing of power—regardless of party affiliation or allegiance.

Intense partisanship often leads members of Congress to “go to their corners.” And rarely has the partisanship been more intense, more bitter, than now.

But Patrick Leahy has rejected the defensive position into which the weakest of partisans collapse. Instead, he has gone into the same checking-and-balancing stance that has been adopted by Bob Goodlatte. This is as it should be. When it comes to defending the freedom of the press, the chairs of the House and Senate Judiciary Committees should, regardless of party, regardless of ideology, be positioned firmly and unequivocally on the side of the First Amendment.

Political cartoonists are still powerful provocateurs of people in power. Victor Navasky explains why.

Chris Christie and Barack Obama inspect the damage from Hurricane Sandy. (Wikimedia Commons/Pete Souza.)

Editor’s Note: Each week we cross-post an excerpt from Katrina vanden Heuvel’s column at the WashingtonPost.com. Read the full text of Katrina’s column here.

Last week, as news circulated of New Jersey Governor Chris Christie’s weight-loss surgery, so did a video in which Christie parodied his own brand—and the fleece he wore day and night during the Hurricane Sandy crisis. In the video, he asks everybody from Morning Joe to Jon Bon Jovi if they’ve seen his now-missing fleece, without which he is powerless, like Iron Man without his suit.

The governor may be able to poke fun at the absurdity of, among other things, his rising star, rumored ambitions and “relentless” fleece, but his real shortcomings are no laughing matter.

It was, after all, while wearing that infamous fleece that he raced across his state, doling out no-nonsense quips about recovering from the storm. And who can forget the iconic images of Christie and President Obama surveying the wreckage together, finding love, it seemed, in a hopeless place?

Christie seemed genuinely consumed by the unprecedented destruction caused by what the environmentalist and writer Bill McKibben called a “Frankenstorm….stitched together from some spooky combination of the natural and the unnatural.”

And yet, when asked the obvious question—how Christie would address the climate change challenges that contributed to the superstorm and will, undoubtedly, create more in the future—the famously blunt governor said, “Now maybe, in the subsequent months and years, after I get done with trying to rebuild the state and put people back in their homes, I will have the opportunity to ponder the esoteric question of the cause of this storm.”

Editor’s Note: Each week we cross-post an excerpt from Katrina vanden Heuvel’s column at the WashingtonPost.com. Read the full text of Katrina’s column here.

From left to right, Nadezhda Tolokonnikova, Maria Alyokhina and Yekaterina Samutsevich sit in the defendant's cage at their trial. (AP Photo/Alexander Zemlianichenko.)

At the culmination of the documentary Pussy Riot: A Punk Prayer, band member Maria Alyokhina tells the court that “this trial is not just an evil, grotesque mask, it is the face that the government wears when speaking to the people of our country.”

The Sundance-winning documentary by Roast Beef Productions, which makes its public debut on June 10 on HBO, presents the narrative of the Pussy Riot trial as a parable on the reactionary nature of the Putin regime and its crackdown on free speech. Directors Mike Lerner and Maxim Pozdorovkin have collated a wide array of court proceedings, public actions and interviews with the defendants' parents and those who would see the three girls hang (in some cases literally).

But the documentary also leaves out a few messy details. Although it doesn't ignore the position of the Orthodox faithful undergirding the prosecution’s case, the film remains couched in the traditional Western narrative of the trial, which blames Putin for all things rotten in Russia, and fails to give full measure to the conservative majority and public employees, pensioners and others that still support both the president and Patriarch Kirill.

Meanwhile, it's unclear whether any of the film's profits will go to the group or related causes. (Roast Beef Productions reportedly had a contract with a company linked to a Pussy Riot lawyer, but band members have condemned the commercial use of the group's name). Lerner told The Nation that he could not disclose any commercial arrangements related to the movie but that the production team has a close working relationship with freed band member Yekaterina Samutsevich (although they unfortunately decided not to interview her).

The documentary begins with footage of the infamous “punk prayer” of February 21, 2012, when Pussy Riot members attempted to perform their song “Mother of God, Drive Putin Out” in Moscow’s iconic Church of Christ the Savior. Three of them made it onto the ambon at the head of the church and began yelling lyrics criticizing the Orthodox Church and its subservience to the state before being dragged out by security. (The film doesn't explore the difference between the widely circulated music video version it shows and the unedited footage where the girls sing mostly a cappella, which is arguably far less provocative.) Alyokhina, Samutsevich and Nadezhda Tolokonnikova were later tried and convicted on charges of hooliganism and inciting religious hatred, and Alyokina and Tolokonnikova are now serving two years in penal colonies.

To its credit, the film attempts to give a human face to all those involved. Their somewhat befuddled parents describe the three girls’ personalities and path to radical politics, while the Carriers of the Cross, a kind of motorcycle-less biker gang in shirts reading “Orthodoxy or Death,” remark rather wistfully that in earlier times, such witches would have been hanged or burned at the stake.

Even the state prosecutors, two doughy, watery eyed bureaucrats, get their moment before the camera to refute contentions that Putin is directing the court proceedings, exclaiming that the opposition sees Putin “behind every bush.”

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It's too bad the directors didn't interview Samutsevich, who was released in October after changing her defense and who has reportedly fallen out with Tolokonnikova. Instead they attempt to gain a glimpse into the girls' personalities and motives through footage of their questioning and trial. Some of the most human moments occur when the band members are chatting idly in the defendant’s cage, surrounded by cameramen and glowering policewomen as they wait for the proceedings to start. “Where are our lawyers?” Tolokonnikova wonders. “They’re giving interviews or tweeting,” Alyokhina says. “Or at the bar,” Tolokonnikova jokes.

The film’s climax comes with the riveting final speeches of the three girls before the guilty verdict that they expect, where they strike a tone that is defiant—they continue to condemn Putin, the Church and the trial—while arguing that their apologies were sincere.

“Every day, more people understand that if the political system ganged up like this on three girls that performed for 30 seconds in the Church of Christ the Savior, it can only mean that this system fears the truth and sincerity that we represent,” Tolokonnikova tells the court.

There’s certainly a lot of truth to this, but prosecutors’ framing of the protest as an affront to the faithful wasn’t entirely off-the-mark either. An independent poll on the eve of the verdict found that 42 percent of Russians thought Pussy Riot had “insulted holy places and believers’ faith.” Another poll during the trial showed that only five percent of Russians supported letting the band members off with no punishment.

It’s important not to forget these circumstances while watching what is otherwise a rousing defense of free speech.

Read Alec Luhn on Russia's fledgling student movement against controversial education reforms.

The IRS is under siege for investigating conservative political groups applying for tax-exempt status. But the real problem wasn’t that the IRS was too aggressive. It was that the agency focused on the wrong people—“none of those groups were big spenders on political advertising; most were local Tea Party organizations with shoestring budgets,” writes The New York Times—and wasn’t aggressive enough. The outrage that Washington should be talking about—what my colleague Chris Hayes calls “the scandal behind the scandal”—is how the Citizens United decision has unleashed a flood of secret spending in US elections that the IRS and other regulatory agencies in Washington, like the Federal Election Commission, have been unwilling or unable to stem.

501c4 “social welfare” groups like Karl Rove’s Crossroads GPS, the Koch brothers’ Americans for Prosperity and Grover Norquist’s Americans for Tax Reform—which don’t have to disclose their donors—spent more than $250 million during the last election. “Of outside spending reported to the FEC, 31 percent was ‘secret spending,’ coming from organizations that are not required to disclose the original sources of their funds,” writes Demos. “Further analysis shows that dark money groups accounted for 58 percent of funds spent by outside groups on presidential television ads [$328 million in total].”

IRS guidelines for 501c4 groups state that “the promotion of social welfare does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office…a section 501(c)(4) social welfare organization may engage in some political activities, so long as that is not its primary activity.” It’s ludicrous for groups like Crossroads GPS—which spent at least $70 million during the last election—to claim that its primary purpose is not political activity. Only the likes of Karl Rove would believe that running attack ads against President Obama qualifies as social welfare.

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So what did the IRS do about this blatant abuse of the tax code by some of the country’s top corporations and richest individuals? Virtually nothing. “When it comes to political spending, the IRS is more like a toothless tiger,” wrote Ken Vogel and Tarini Parti last year in a story headlined, “The IRS’s ‘feeble’ grip on big political cash.”

It’s obvious that our Wild West campaign-finance system needs more, not less, scrutiny and much tighter, not looser, regulation. Yet conservative groups are exploiting the IRS scandal to further dilute regulatory agencies that are already on life support. Writes Andy Kroll of Mother Jones:

The IRS’s tea party scandal, however, could hinder the agency’s willingness to ensure politically active nonprofits obey the law. The IRS will likely operate on this front with even more caution, taking pains not to appear biased or too aggressive. That in turn could cause the agency to shy away from uncovering 501(c)(4) organizations that do in fact abuse their tax-exempt status by focusing primarily on politics.

The Rove’s of the world would like nothing more than for the public to believe that conservative groups had too few opportunities to influence the 2012 election and were wrongly persecuted by evil Washington bureaucrats. Yet the 2012 election should have taught us precisely the opposite lesson—that our patchwork regulatory system is far from equipped to deal with the new Gilded Age unleashed by Citizens United. As Rep. Keith Ellison told Hayes last night: “We need to redouble our efforts to bring real campaign-finance reform forward.”

Read Ari Berman on why North Carolina’s voter ID bill is reminiscent of a poll tax. The bill has since passed state House of Representatives.