Obama Has Become Radical in His Commitment to Secrecy

Posted by Martin Garbus, Huffington Post at 5:00 AM on June 30, 2009.

It is more than coincidence that an HBO film on free speech, Shouting Fire, dealing with the Bush attempt to stop free speech is on tonight.

Obama's campaign promise was for a transparent government, yet this past Friday, after 3pm, hoping to avoid the weekend news cycle, his administration announced major events he hoped the public would not see.

Denying the public information, rejecting the public's free speech "right to know" has become a pattern of this administration. Obama has become radical in his commitment to secrecy, not totally unlike the Bush administration.

Late Friday, June 26, 2009:

1. Obama announced a plan to draft laws to detain terror suspects indefinitely.
2. Obama announced it would be done by exec order so as to bypass Congress. The Washington Post article which caught the events was entitled "Executive order of detainees would sidestep Congress."
3. Obama's Attorney General told a federal judge that the suit by the families of the four detainees who committed suicide at the Guantanamo Bay prison should be dismissed because the issue is "fraught with political and military concerns" and Cheney, the government lawyers and the others have immunity from prosecution.
4. Obama's Attorney General again delayed release of a 2004 CIA report which paved the way for detainee waterboarding, sleep deprivation and physical abuse. An extraordinary article by Luke Mitchell in this month's Harper's Magazine shows we are continuing that torture.
5. Obama's Attorney General delayed, again, turning over 35 Bush Era defense documents to Judge William K. Hellerstein, a New York federal judge on a suit filed by the ACLU.

Present First Amendment law arises mostly out of cases dealing with the threats of mob violence. In Brandenburg v. Ohio, a case decided in June 1969, exactly 40 years ago, where there was a Ku Klux Klan mob armed with shotguns, rifles and ammunition, the Court stated the test is whether the speech to the mob was incitement to imminent lawless action.

The prohibition against shouting "fire" in a crowded theater is the ordinary person's understanding of what First Amendment law tests are. It is the popular way of describing the test that the danger must be imminent. Shouting Fire is the title of an HBO film airing tonight (full disclosure: my daughter, Liz Garbus, directs it, and I am in it) and specifically deals with some of these issues. The film dramatically shows the possibility of theatergoers being trampled after "fire" is cried and why the speaker can be punished. The danger is clearly "imminent" that is the only time speech can be stripped.

Speech can also be stopped, the law tells us, in cases of national security where the danger of lawless action is imminent. This does not apply to any of the Obama Administration's attempt to control the release of information. His "Shouting Fire" should not be taken seriously.

The Pentagon Papers (a study commissioned by the government) case, discussed at length in the HBO film, shows the dangers of suppression of material. It contradicts the public's right to get all the information so it can make informed judgments about our presidents' policies. The cases in Court today show, as the Pentagon Papers case did, why we got into war, what we did to the population fought, why and how we tortured, and today torture Guantanamo inmates.

Hasn't he learned.

We see the similarities between the two administrations; similarities Obama promised us we would never see.

The First Amendment requires the government to be transparent. It requires the people be told exactly what the government is doing in their name. That is what democracy is about.

Obama's attempt at secrecy, continued torture and repression of speech must be stopped.

Tagged as: torture, hbo, first amendment, barack obama, pentagon papers, aclu, department of justice, guantanamo bay, waterboarding, shouting fire

Martin Garbus is a trial lawyer and author of six books on the Supreme Court and constitutional law.