EDITORIAL: First Amendment freedoms never worth sacrificing

Editorial Board

About seven and a half years ago, we were this close to having our First and Fourth Amendment rights severely restricted. Five months ago, the legal advice making those threats possible was rescinded.

The scariest part? We didn’t find out about any of it until last Monday.

On March 2, the Obama administration released a memo written by John Yoo in October 2001, advising on behalf of the Office of Legal Counsel that with presidential authorization, constitutional protections against unlawful search and seizure wouldn’t apply to terror suspects in the U.S. Although many advised actions weren’t taken, the memo, addressed to then-White House counsel Alberto Gonzales, laid the groundwork for practices such as the waterboarding of terror suspects.

Also included in the memo was the following statement: “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” The ruling from the 1919 case of Schenck v. United States was cited to back up the claim:

“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”

This broad advice leaves the door open for the government to censor the press any way they like, as long as the reason can be tied to the “overriding need to wage war successfully.” Would this very editorial fall outside the lines of protected free press under such a standard?

It is important to note that another memo was issued in October 2008 essentially revoking the statements made in the original memo, saying that “certain propositions stated in the 10/23/01 Memorandum … should not be treated as authoritative for any purpose.” The 2008 memo emphasized the circumstances surrounding the 2001 memo, noting that we were in “the immediate aftermath of the attacks of 9/11.”

We’re glad the Office of Legal Counsel recognized the dangers of the original memo. But why was the issue not addressed until the final months of the Bush administration? And why was this, too, kept under wraps?

As journalists, the members of this editorial board take the First Amendment seriously. We believe in the freedoms it guarantees — and if you’re reading this newspaper, chances are, so do you. To obstruct our rights to freedom of speech and the press would be detrimental not only to our careers — a relatively minor issue — but more importantly, to the American society.

As for the Fourth Amendment issues — we’ve already felt the effects of giving the government enhanced search-and-seizure authority, in the controversial post-Sept. 11 policy of warrantless wiretapping of U.S. citizens. This was thought to be a small concession necessary for our safety. But it turns out it was just baby steps away from even more drastic measures, that could have included attacks on “civilian targets, such as apartment buildings, offices, or ships” and the employment of “electronic surveillance methods more powerful and sophisticated than those available to law enforcement agencies,” according to the 2001 memo.

We would like to use the release of these memos as a warning for future times of vulnerability in the U.S. Immediately following the attacks of Sept. 11, most of us were willing to give up almost any rights in the name of safety and fighting the terrorists. But if we blindly allow the government to take away our constitutional rights and freedoms, we place ourselves onto a slippery slope from which we may never recover our ground.