One of the unintended consequences of the war in Iraq is the looming battle between the media and the Bush administration over the legality of publishing intelligence secrets. It would be hard to overstate the significance of this contest. The Bush administration has announced quite clearly that it plans to prosecute as felons not only people who leak national security secrets, but the reporters and editors who publish them.
Will the Bush administration be successful in creating a de facto Official Secrets Act, as in Great Britain ? It’s not so farfetched as it may sound, because the government does not need new laws, only a reinterpretation of current law, to achieve this end. Even First Amendment lawyers friendly with the press agree that the Espionage Act of 1917 could be interpreted as making publication of national security secrets a felony.
Supreme Court Justice Byron R. White went out of his way to make this clear in the court’s famous Pentagon Papers decision of 1971. The Court ruled that the government could not block publication of the classified “Pentagon Papers,” and the decision is therefore remembered as a triumph for the media. But Justice White noted in the opinion that “it seems undeniable” that newspapers can be “vulnerable to prosecution” under the 1917 statute. (Indeed, the Nixon administration had wanted to prosecute The New York Times under the 1917 act for publishing the Pentagon Papers, but the U. S. attorney for New York, Whitney North Seymour Jr., refused to convene a grand jury. )
Will the Bush administration be successful in putting a new leash on the press ? At the moment, there are only two safe predictions. First, the administration will not back down and will put all its energy into achieving restraints on the press. If Bush is successful, journalists won’t be packing their tooth brushes for a few days in the local jail to protect sources; they’ll be entering federal penitentiaries where they will be locked up as felons.
The second safe prediction is that journalists will be their own worst enemy by refusing to acknowledge the fact that seems obvious to everyone but themselves—that there are national security secrets that should not be published, no matter how juicy they may be. It will no longer suffice to invoke “the public’s right to know” (a phrase entirely absent from the Constitution ) to justify publication of any intelligence leak that happens to land in a reporter’s lap—or, to be fair, is turned up by hard work.
POINT OF DEPARTURE In our post 9 / 11 world it is quite amazing to read what reporters and editors were saying only a few years ago. In 1986 Seymour Hersh of The New York Times appeared on an American Political Science Association panel examining the media’s responsibilities in reporting national security secrets. The moderator began, in the time-honored way, by trying to find a point of departure that all the panelists could agree to: “Suppose it’s 1917—World War One—and a reporter at The New York Times learns the departure time of a troop ship. Also assume that German submarines are waiting just outside New York Harbor. Surely, prior restraint would be justified here to prevent publication ?” No way. “The answer, of course, is Hey, no !” responded Hersh. “And I’ll tell you why. The assumption has to be made: if a reporter can find out about it, so can someone else. It’s much better for The Times to exercise its responsibility to publish the date and the time of the troop ship and make the government get a new one that they can keep secret.” In 1988 the First Amendment Congress meeting in Richmond, Va., took up this same question. Moderator Hodding Carter asked the panel to respond to the following hypothetical situation. You are an American reporter covering a war in the Middle East. You have ingeniously made your way behind enemy lines so that you can report directly on events from the standpoint of opposition forces. While there, you happen to discover that a trap is being set for U. S. forces that will kill hundreds of American soldiers. Further assume that you have the ability to relay this information to U. S. forces without being detected. Would you relay this information or not ? The president of the Radio and Television News Directors Association said the choice was clear. He would not warn U. S. forces of the trap, even though he could do so without compromising his own safety, because as a journalist he was neutral and there could be no compromising on this fundamental principle. There was an audible gasp from the audience of newspaper editors and publishers, and one of them said later during the Q and A session that for the first time in his life he was ashamed of being a journalist.
SECRETS REVEALED There is no shortage of information to show that it was Hersh and the TV news director—not the abashed newspaper publisher—who best represented the prevailing attitude among journalists in Washington and New York during the Cold War, with predictable results. A few examples: In April 1983, terrorists bombed the U. S. Embassy in Beirut, killing 60 people. At the time of the attack, U. S. intelligence services were intercepting and decoding radio traffic between Syria, where the terrorists had built the bomb, and Iran, which supplied tactical support. When two U. S. media outlets revealed the operation, radio traffic ceased immediately, undermining efforts to capture the terrorist leadersand eliminating a crucial source of information about future attacks. A few months later, the same terrorist group killed 241 American soldiers in an attack on Marine barracks in Beirut.
During the early and mid-1970 s, the U. S. was reaping the benefits of one of the most productive intelligence operations of the Cold War. U. S. nuclear submarines were regularly entering Soviet military harbors, where frogmen working with mini-subs, created specifically for this mission, installed and monitored listening devices around crucial underwater communications cables. The National Security Agency showed its ingenuity in devising listening devices that surrounded but did not actually touch the cables. Had the devices been a routine “tap” of the cables, the Soviets would at once have known about it. Soviet military and political leaders assumed the cables were safe and talked freely about strategic military issues. When the White House learned in 1975 that The New York Times was going to reveal, and thereby put an end to, the operation, the CIA pleaded with The Times not to publish. But The Times decided to publish anyway, and this rich source of Soviet military intentions went silent. The Times did agree to postpone publication of the article until an American sub, which at that moment was on a mission in a Russian harbor, could be called back to safety.
When Soviet nuclear submarine K-129 sunk in the Pacific Ocean in 1968, the race was on between the U. S. and the Soviet Union to locate the sub. It would be an intelligence gold mine for the U. S., which won the race but had to find a way to raise the submarine without the Soviets’ awareness. The CIA had a ship built for it named the “Glomar Explorer,” which set sail in 1974 under the cover of a commercial ship looking for manganese nodules on the ocean floor. The submarine broke in two as it was hauled from the ocean floor, but the portion of the submarine the CIA did recover provided unprecedented tactical and strategic information about Soviet nuclear war capabilities. The value of the intelligence derived from the Soviet sub was degraded considerably, however, when in February 1975 the Los Angeles Times revealed the operation, thus alerting the Soviets to what the U. S. had learned.
During this same period, American intelligence services had devised a system for monitoring conversations among Kremlin officials as they were driven around Moscow in their limousines. Since the Russians had no idea this capability existed, they were quite free about their remarks on Soviet military intentions (not to mention romantic adventures ). This source of intelligence was shut down forever on September 16, 1971, when the Soviets learned about the operation—not from KGB spies but from Jack Anderson’s newspaper column. An American intelligence officer said Anderson’s column was “completely gratuitous, it served no purpose and blew our best intelligence source in the Soviet Union.” A ‘RIGHT TO KNOW’ What infuriates the intelligence community about leaks such as these is that the leaks were published not because of any suggestion intelligence agencies had done something wrong—but simply because …. Well, that’s a good question. Whatever the actual motives for publishing security leaks, editors can always resort to the incantation of the magical phrase, “the public’s right to know” and thereby shut down any real public discussion. “The trouble with you journalists,” Supreme Court Justice Potter Stewart once remarked, “is that you’re all mixed up between what the Constitution gives you a right to publish and the right thing to do.” Journalists invoke “the public’s right to know,” he said, to cover over their “fuzzy and slopping thinking.” It’s a little like another incantation that comes in so handy in a pinch. If confronted by substantive charges that a particular article was inaccurate or misleading (say, for example, the entire reporting of “Whitewater” by the national press corps ), the editor can simply pick up the magic wand, throw out some pixie dust and state authoritatively: “WE STAND BY OUR STORY.” When it comes to defending themselves against substantive criticism, “the public’s right to know” seems suddenly irrelevant.
OUTRAGE OVER ANDERSON In a sign of how the legal universe for journalists has been turned upside down, the FBI is seeking access to the papers of columnist Jack Anderson, who died last year. The FBI wants to know if his files contain any classified documents that have not been published. (Odds would seem to be fairly high that they do. ) The response to the FBI’s request to the courts has been predictable. According to the Chronicle of Higher Education, “The FBI’s request has outraged journalists, librarians, and historians who believe that granting it would compromise the identity of sources and the integrity of the archive.” The writer seems deaf to the irony of it all: expressing outrage that an FBI investigation could “compromise the identity of sources” who leak intelligence secrets. Would it be of any concern to this writer that the intelligence community’s outrage about leaked classified documents derives precisely from the fact that such leaks can “compromise the identity of sources” useful to the U. S. ? In the world of intelligence, once a source is identified, the source is no longer useful. The source could be communications intercepts, CIA officers whose cover is blown, or CIA agents whose usefulness is ended by a shot in the back of the head.
WITHHOLDING THE NEWS As the government and the media square off in trying to find the right compromise between national security and freedom of the press, it’s important to know that newspapers have, in fact, on numerous occasions agreed to withhold information at the government’s request. The press is reluctant to acknowledge this, perhaps because doing so flies in the face of First Amendment absolutism, and because it reveals statements such as Seymour Hersh’s cited above, as the childish grandstanding they are. A few examples: As noted, the Los Angeles Times compromised the Glomar Explorer operation, but equally important is the fact that several other news organizations knew about the plan, and each of them agreed to withhold the information when contacted by then CIA Director William Colby. As Colby remembered it, even Hersh cooperated: “Hersh was on to the generics of it, not the specifics. And I said, ‘Look, not only don’t write about this, but don’t even talk about it. Just blot it.’ And he did.” During the American Embassy crisis in Iran, at least five news organizations learned that six Americans were being sheltered by the Canadian Embassy. None of them reported this information until the other hostages were safely home. These organizations were NBC, CBS, Time, Newsweek and The New York Times. 7 When Lebanese terrorists hijacked TWA Flight 847 with ™ hostages aboard, the media learned—but did not report—that one hostage was a member of the National Security Agency.
Easy answers are hard to come by when a newspaper editor has the Director of Central Intelligence on the phone and has to decide whether to publish classified information the government deems vital to the nation’s security. The New York Times today finds itself once more caught in the middle.
One side feels the Times should not have published the recent articles on domestic NSA wiretapping, or at least should not have included so much specific information of potential use by terrorists. On the other side the absolutists sneer at the Times for having delayed publication of the story for a year.
“What does it mean for America when we can’t count on reporters to tell us what they know ?” asked Michelle Goldberg at Salon. com. Goldberg is a thoughtful reporter, and her comment reveals the difficulty even the best in the business have when it comes to intelligence matters. Would Goldberg really want reporters always “to tell us what they know” when what they know might include the 21 st century equivalent of troop ships leaving New York harbor ? Would she want reporters “to tell us what they know” if what they know is details of an operation to prevent the activation of a suitcase nuclear weapon in New York harbor ?
A BALANCING ACT ? In the final analysis, what kind of job have the media done in balancing the needs of publishing versus protecting legitimate national security secrets ? It’s impossible to make any grand conclusions. For one thing, the media are all over the lot on the issue. A Jack Anderson may destroy a legitimate operation because he’s got a column to fill and doesn’t have the time or inclination to think about the consequences. Others claim – as Seymour Hersh once didthat the press should publish every single secret that comes its way—damn the consequences. Yet others quietly honor a CIA director’s plea for restraint. The decision to publish or not varies from publication to publication and from day to day and year to year within the same organization. And often government officials disagree among themselves over whether a particular secret truly involves national security.
It’s tempting for journalists and the civil rights community to focus their attention on the messenger, the Bush administration, rather than on the message—that the media need to be more reflective, more willing to critically examine themselves (and yes, sometimes even to exercise more restraint ) in reporting national security secrets. Too much is at stake to continue the “fuzzy and slopping thinking” identified by Justice Stewart.
Because if the public should become convinced that the media are compromising national security secrets for no more than competitive or ego reasons (and of course some have already reached that conclusion ) the consequences could be severe and hard to overcome. If we’ve learned anything in the last six years it is that many of the unwritten foundations to American democracy are not as secure as we had assumed. The Constitution prohibits the government from “abridging the freedom of speech, or of the press …” That’s it. The rest is to be worked out over time in a collaboration between the people and the government that represents them. No one can say where the tension between the press and the government’s claims to national security will lead us over the next ten years. One thing is for sure. The same old bromides and jeremiads from both sides of the issue will no longer suffice. Philip Bobbit, a law professor and former National Security Council member said recently: “The tiresome [byplay ] between civil libertarians in denial of reality, and an overaggressive executive branch seemingly heedless of the law, are comforting to partisans of both groups, but not in the national interest.” THE PUBLIC DECIDES Give the last word to Alexander Hamilton, who knew a thing or two about the Constitution and newspaper publishing. He concluded that any guarantee of press freedoms resides ultimately in public opinion.
“What is the liberty of the press ? Who can give it any definition which would not leave the utmost latitude, for evasion ? I hold it to be impracticable. And from this, I infer that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of government.”
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