I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, June 12, 2006

Publishing secrets

By Hume's Ghost

"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." - James Madison

In an editorial for the Washington Post yesterday, associate editor Robert Kaiser wrote what is so far one of the best and most important explanations for the publication of classified material to date in a major American newspaper. I'll here highlight a few points.

Kaiser begins by listing stories that have been revealed that the White House intended to keep secret.

Thanks to resourceful reporters, we have learned a great deal about the war that the administration apparently never intended to reveal: that the CIA never could assure the White House that Saddam Hussein's Iraq actually had weapons of mass destruction; that U.S. forces egregiously abused prisoners at Abu Ghraib; that the United States had a policy of rendering terrorism suspects to countries such as Egypt and Jordan where torture is commonplace; that the United States established secret prisons in Eastern Europe for terrorism suspects; that the National Security Agency was eavesdropping without warrants on the phone calls of countless Americans, as well as keeping track of whom Americans called from home and work.
All of these stories have something in common: they all reflect negatively on the administration. Which leads Kaiser to his next point, that "secrecy and security are not the same," where he cites the Nixon administration's attempt to stop the publication of the Pentagon Papers as a matter of national security.*

The Nixon administration was in power, and it went to court to block publication on grounds that revealing this history would endanger the nation. A court in New York enjoined the two papers from publishing the information for several days.

But the Supreme Court decided, 6 to 3, that the government had failed to make a case that overrode the constitutional bias in favor of publication. The man who argued the case was Solicitor General Erwin N. Griswold. Eighteen years later, Griswold wrote a confession for the op-ed page of this newspaper: "I have never seen any trace of a threat to the national security from the publication [of the Papers]. Indeed, I have never seen it even suggested that there was such an actual threat."
Next, Kaiser explains the careful steps that are taken to assure that a story about classified information will not hurt national security, noting that the Post's reporters consult with the government before publishing classified information, often agreeing to protect secrets that are said to be a matter of national security. He explains that there is a common sense difference between the "gratuitous revelation of secrets" and publishing information that raises important issues for American voters.

The bottom line, though, is that the public must know what it's leaders are doing to be able to hold them accountable for their actions, and that:

no single authority should be able to decide what information should reach the public. Some readers ask us why the president's decisions on how best to protect the nation shouldn't govern us, and specifically our choices of what to publish. The answer is that in the American system of checks and balances, the president cannot be allowed to decide what the voters need to know to hold him accountable. A king may have such power, but the elected executive of a republic cannot, or we will have no more republic.
Kaiser next mentions Attorney General Alberto Gonzales's statement that the administration is considering prosecuting journalists for violations of espionage laws, which he recognizes as an act of intimidation. I digress here for a moment to quote from National Review Online contributing editor Jonathan Adler (cowritten with Michael Berry), whom I believe has addressed this issue as well as anyone else, and, indeed, perhaps better than anyone else, since Adler argues from the perspective that even if you support the President's actions, such an intimidation of the press will set a precedent that would allow future presidents to hide actions that you do not approve of.

The Founding Fathers understood that a free and independent press is critical to self-governance and to the constitutional order they established. The Constitution states that Congress “shall make no law” abridging the freedom of the press. This mandate is clear and unmistakable. The press should be free to publish news reports without fear that Congress will criminalize those publications.

Publishing classified information is not the same thing as stealing state secrets or spying for the enemy. There is a distinction between clamping down on government employees who leak sensitive national security information and targeting the reporters who publish those leaks. It is one thing to question the wisdom or propriety of publishing sensitive national-security information, or to allege media bias. But it is quite another to call for the criminal prosecution of journalists for reporting on matters of public concern, even when those matters implicate national security. Not every embarrassing or unfortunate disclosure is a criminal act.
Returning to Kaiser, he closes with a poignant point from Justice Hugo Black's Pentagon Papers opinion

"The government's power to censor the press was abolished [by the First Amendment] so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people."
In related news, Nat Hentoff, who is probably more aware of the threat that the Bush administration poses to civic liberty than any other journalist, writes in his latest Liberty Beat column about the "states secrets" privilege, the "Bush administration's favorite means of staying in the shadows of the parallel legal system it keeps on inventing."

If it were not for reporting like that of the Washington Post (and of reporters like Charlie Savage) we would not even know about this parallel legal system in the first place. But does not the American public have a right to know if its government has decided to choose for itself a different sytem of government that the one chosen by the people, the one enshrined in the Constitution?

*The reporter Daniel Ellsberg, the man who broke leaked the Pentagon Papers story to the NYTs has written an article for the LA Times today explaining why he published leaked them. (h/t Paul Rosenberg, for pointing out my error).

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