Scott Marks 2:48 p.m., May 23
Gen. McChrystal, Rolling Stone, and a Supreme Court Interpretation of the Patriot Act
One of the most important things a military officer can do, not just for one's own career but for the safety of the fighting forces he or she serves with, is to anticipate the needs of the commander. In the case of a general who acts as a theater commander, it is to anticipate the needs of the Commander-in-Chief.
General Stanley McChrystal appears to have forgotten this when making informal off-hand comments regarding the Commander-in-Chief and others in and out of the chain of command to a Rolling Stone reporter who could not get a quick-enough flight of of the Afghanistan area of operations.
A lesson for all officers who aspire to higher levels of command authority: the press is always a potential enemy, for members of the press do not know what they know, then arrange to have it put in print. Loose lips sink ships, and sometimes a promising military career.
Regardless of the immediate future for Gen. McChrystal, Rolling Stone seems to have stepped onto death ground itself, and the one rolling stones upon it from the high ground appears to be the Supreme Court of the United States. At the same time, the Supreme Court may have tied the hands of US citizens, committing us to act as combatants in a manner that may have us at odds with the President's constitutional latitude in conducting foreign policy.
For argument's sake, I will assume that the people on the Rolling Stone editorial staff are smarter than a gunny sack of potatoes. I was going to compare them to to a sack of rocks, but I want to at least give them credit for having eyes, even if they were not open. Being smart journalists, those editors and the reporters feeding them stories were reasonably aware of such a thing as the Supreme Court, and they most likely were better informed than the general public that there was a case involving the Patriot Act and freedom of speech on the docket for a decision this month.
For those of us who are not Rolling Stone editors or otherwise haven't been keeping up with current events, the Supreme Court has ruled that anybody who provides any “material support” to government-identified terrorist groups has violated the Patriot Act. The question today is precisely how far did Rolling Stone go out of its way to find itself in court over a Patriot Act violation.
The Supreme Court announced its June 21, 2010 decision in the matter of HOLDER, ATTORNEY GENERAL, ET AL. v. HUMANITARIAN LAW PROJECT ET AL. In the majority opinion, the Court found that an organization which itself is not a terrorist organization cannot provide any material support to a terrorist organization, even if that support might be reasonably considered to be otherwise-protected free speech, as long as that speech provides “assistance” to the terrorist organization.
Part of the Court's reasoning is that even humanitarian assistance, such as showing a terrorist organization skills and techniques for engaging in peaceful negotiations, is prohibited by the Patriot Act because it allows the terrorist organization to use freed-up resources in terrorist activities.
So how much material support did Rolling Stone provide to terrorist organizations by outing McChrystal's comments?
As for us, the Supreme Court decision appears to create a duty for all US citizens to not provide material support to terrorist organizations. Given that most states have “hot pursuit” statutory clauses regarding enemies of the state, and the National Response Framework covering terrorist acts asks ordinary citizens to do without federal or state assistance in response to all-hazard incidents (which specifically includes acts of terrorism by terrorist organizations), the Supreme Court decision also appears to give a green light to those of us who want to spend our own money and go hunting Osama in Pakistan. This may go against the President's authority to conduct our nation's foreign affairs, as the green light for us citizens to go after terrorists may end up disrupting any contacts the President or his administration may have with foreign terrorists, where the purpose of those contacts is the eventual goal of seeking peace between us.