SEYMOUR HERSH tried for espionage???

Should Anti-Bush Journalists Be Tried as "Spies"?

by William Norman Grigg
January 22, 2005

According to Washington Times editorial page editor Tony Blankley, investigative reporter Seymour Hersh should be tried for espionage.

Tony Blankley, editorial page editor of the Washington Times, is a walking museum. His syndicated column regularly retails Soviet-style hymns to the majesty of the state and its Dear Leader, thoughtfully published in pedestrian English prose so as to avoid the necessity of translation.

In his most recent offering, Commissar Blankley opines that investigative reporter Seymour Hersh committed "espionage" by publishing a detailed expose of the Bush administration’s plans and preparations for war with Iran. According to Hersh, the administration has been conducting pre-war covert operations inside Iran. Those operations allegedly are being carried out through the Pentagon, rather than by the CIA, in order to avoid congressional oversight. Citing anonymous defense and intelligence sources, Hersh predicts that as many as ten nations might be on the list of possible U.S. military targets.

Many neo-conservative (or, more accurately put, neo-Trotskyite) commentators have dismissed Hersh’s account as ideologically inspired speculation. The Pentagon has done likewise. But Blankley suggests, in all seriousness, that the veteran reporter – who compiled an impressive track record with a recent string of scoops regarding Abu Ghraib and related outrages – should be arraigned, and face possible execution, as an enemy spy.

Pontificates Blankley: "Title 18 of the United States Code (Section 794, subsection [b]) prohibits anyone `in time of war, with the intent that the same shall be communicated to the enemy [from publishing] any information with respect to the movement, numbers, or disposition of any of the Armed Forces … of the United States … or supposed plans or conduct of any … military operations … or any other information relating to the public defense, which might be useful to the enemy." If found guilty, the accused faces "death or imprisonment for any term of years or for life."

"I am not an expert on these federal code sections," he continues. "But a common sense reading of their language would suggest, at the least, that federal prosecutors should review the information disclosed by Mr. Hersh to determine whether or not his conduct falls within the proscribed conduct of the state." Contending that Hersh’s article has a "potentially lethal effect" on the Bush administration’s effort to prosecute the "War on Terror," Blankley excoriates the "Washington political class" for its lack of zeal in dealing with the reporter. This reflects "a bad case of creeping normalcy," grouses Commissar Blankley, and because of our indifference we are "sleepwalking toward the abyss."

Before assuming his august post at the Washington Times, Blankley was an attorney and a top aide to disgraced former House Speaker Newt Gingrich. Thus it’s a touch disingenuous for him to affect mystification over the language of the U.S. Code. But even granting that he finds the statute in question ambiguous, there four key words that should clarify the matter: "In time of war."

Here’s another critically important legal passage whose meaning is so clear that not even Commissar Blankley can miss it: "The Congress shall have the power … to declare war." Thus states Article One, Section 8, paragraph 11 of the U.S. Constitution. It is Congress, not the president or any of his subordinates, who places our nation in a state of war. As Alexander Hamilton – hardly an advocate of minimalist executive power – put it in a 1793 essay: "It is the province and duty of the Executive to preserve to the Nation the blessings of peace. The Legislature alone can interrupt those blessings, by placing the Nation in a state of War."

Simply put, our nation is not legally at war. Congress did not declare war on Iraq, and hasn’t taken action of any kind regarding military action against Iran. The Bush administration, like Blankley, affects to find some ambiguity in the constitutional assignment of war powers, but the meaning of the language is utterly plain to honest people of even modest intelligence.

As the Rosenberg case illustrates, those who spy on behalf of foreign power in peacetime can be prosecuted, convicted, and executed as spies. But Blankely isn’t accusing Hersh of doing this. He’s not accusing the journalist of "communicating with the enemy," but of informing the public about military activities undertaken against a government with which we are not at war. Some who support the Bush administration’s "war on terrorism" might contend that the moral difference between these cases is a matter of degree, not kind. But in any case, the legal distinction here is clear-cut: If Congress hasn’t declared war, the espionage statute cannot be applied regarding Hersh’s writings.

But Blankley, like many Republican-aligned pundits, insists that such constitutional questions have been rendered moot by the extraordinary times in which we live – and that George W. Bush, as the epitome of political goodness, is a man to whom we can entrust exceptional powers. Even if the latter were true, Mr. Bush will not occupy the Oval Office indefinitely, unless he plans to become President-for-Life, which would suit many of his most fervent supporters just fine. But even among such company, Blankley has distinguished himself as an unabashed exponent of a Soviet-style view of state power.

In a September 26, 2001 column, published just weeks after 9/11, Blankley insisted that "every congressman, senator and citizen must discard everything they thought they believed about civil liberties. We all have a moral obligation to think for ourselves and act for the common good." This would mean supporting, among other things, suspension of "habeas corpus for any detention relative, at our government’s sole discretion, to possible terrorist intents [and the interpretation of] the Fourth Amendment protection from unreasonable searches and seizures to mean that any search and seizure is reasonable in our government’s efforts to prevent terrorism."

The commentator elaborated on this view during the June 28, 2002 edition of The McLaughlin Group. "I don't think we're going to turn into a police state as we think of it, in fascistic terms," he said during a discussion of the Bush administration’s counter-terrorism policies. "But yes, I think it's likely that intrusions into our privacy, that more supervision by law enforcement is likely to be a permanent condition of our society…. my point is, it's not a police state in the nefarious sense."

Apparently, Mr. Blankley believes it is possible to have a police state in a benign sense – meaning one that is controlled by his political faction.

Furthermore, Blankley has previously spoken of the supposed need for the media to become an appendage of the executive branch. "The media should be falling in line," he complained in an interview with the January 17, 2002 issue of Insight magazine. "The danger is great enough for us to cut back now on civil liberties. It is all a question of balance. I have been a civil libertarian and will be again in a couple of years. The terrorists will win when they kill us, and we will win when we kill them."

Were the Bush administration to act on Blankley’s recommendation that Hersh be tried as a spy, that decision would involve presumptive Attorney General Alberto Gonzalez, who has been at the forefront of defending the administration’s expansive claims of unaccountable executive power. And the Hersh investigation – were it to happen – would probably divert important resources from the much more pressing inquiry into the Valerie Plame leak, in which an administration official leaked the name of a CIA field operative to the press, thereby blowing her cover and possibly jeopardizing her life.

Odd, isn’t it, that Blankley’s zeal to prosecute spies doesn’t extend to the Plame case?

Blankley’s suggestion fits perfectly into his long-established Soviet-style worldview, in which the people are accountable to the state, rather than the reverse. If what Hersh wrote is accurate – and Blankley appears to believe that it is – then trying him for espionage would tacitly recognize that the Bush administration regards the U.S. people as the enemy from whom such information must be hidden.

© 2005 American Opinion Publishing Incorporated