While the courts have tried to hold the line, the White House, abetted by a pliant Congress, is now attempting to severely restrict the ancient writ of habeas corpus by which American courts since the 18th century have sought to remedy unlawful imprisonment. It is possible that the voter backlash demonstrated in the recent midterm elections will blunt this trend and push the pendulum back.

The role of the press in charting the ebbs and flows of liberty over 40 years has never been more important than it is today. Early in this period, the press began to assert itself, even taking down Nixon and all the president’s men during Watergate. But long-overlooked powers of federal law, lying in wait like loaded weapons, suddenly sprang to life in the past decade and began to be used with a vengeance by federal prosecutors and judges. Journalists are now almost routinely forced to choose between disclosing sources or going to prison. Newspapers and reporters are threatened with draconian penalties for “espionage,” for reporting official misconduct and violations of the people’s liberties. Witness the New York Times’ courageous and urgent disclosure of unlawful presidential use of the National Security Agency to conduct warrantless electronic surveillance, which resulted in a criminal investigation into how the paper got the information, and whether the reporters, editor, and newspaper itself committed a crime in reporting it. But if the past is indeed prologue — as I have come to believe it is — we can count on the pendulum swinging back, but only, of course, if we become energized and activated by the extent of the problem.

Pulitzer Prize–winning war correspondent Marguerite Higgins wrote in her 1951 book: “So long as our government requires the backing of an aroused and informed public opinion, it is necessary to tell the hard bruising truth.” Amen! This has been — and, with luck, will continue to be — the philosophical and political underpinning of the “Freedom Watch” column. After a two-month sabbatical to work on my long-planned book on the Department of Justice, I’ll be back to help launch the Phoenix’s 41st year fighting for truth, justice, and the true American way.

Harvey Silverglate, a criminal-defense and civil-liberties attorney, regularly contributes to the Boston Phoenix “Freedom Watch” column.

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