The Magazine

Journalists and Judges

Neither can be trusted to make good decisions about secrecy.

Dec 4, 2006, Vol. 12, No. 12 • By ROBERT F. NAGEL
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The justices, however, had no way of knowing how much harm to private relationships would be done by disclosures of this sort and hardly pretended to know. Nor did the Court have any way of knowing how much important information would actually be unavailable for public debate if a remedy for disclosure were allowed. The justices were not in fact balancing anything. They were, again, guessing.

The Court's casual evaluation of risk and benefit in these two cases is not inexplicable. In fact, many of the reasons journalists cannot be expected to assess risk accurately apply to judges as well.

The first reason is that both judges and journalists have highly important tasks and are keenly aware of this fact. Judges view themselves as responsible for upholding the rule of law, and reporters see themselves as responsible for making democracy work by keeping the public informed. The importance of these roles means that the imposition of costs and risks on others can sometimes be experienced as a virtue, as when a judge resolutely enforces the exclusionary rule by freeing a criminal, or when a journalist defames a public figure in the urgent pursuit of truth. The willingness to impose harm on others is seen as evidence that a judge is being just, or that a journalist is being courageous.

A second reason is that judges and reporters work in an adversarial atmosphere. Judges are accustomed to hearing one argument or account of events set against another, while journalists frequently play one source against another. Much of their work depends on evaluating what is presented. Both judges and reporters come to think that it is the responsibility of others to articulate and to persuade; if the argument isn't made or the data aren't produced, it does not go into the opinion or into the story. Adversarial instincts can thus lead to a conflation of the quality of an advocate's performance with truth. Bill Keller, for instance, dismissed the government's argument that the banking story would lead terrorists to change their financial tactics partly on the ground that "the argument was made in a half-hearted way." Danger, needless to say, can exist despite a weak presentation.

A third reason is that both judges and journalists sit in constant review of claims that government has failed in some way. Official omissions and mistakes, of course, are the gist of both lawsuits and newspaper stories. This bleak perspective naturally produces distrust and even disdain that can lead to the systematic under valuation of official predictions of harm. Indeed, the public editor of the New York Times, in a "mea culpa" last month, wrote that while he had "strongly supported the Times's decision to publish its June 23 article on a once-secret banking-data surveillance program," he had subsequently changed his mind. Rather than dispassionately weigh the risks and benefits of disclosure, "I fear I allowed the vicious criticism of the Times by the Bush administration to trigger my instinctive affinity for the underdog and enduring faith in a free press."

Finally, while their roles are highly significant, neither judges nor journalists have primary responsibility for setting or implementing public policy. They are, to a degree, bystanders. This can produce unrealistic expectations about those bold enough to be primary players. From the sidelines it is easy not only to distrust the judgments of those who hold the levers of power, but at the same time to think that these powerful people should be able to head off damage or minimize risk. And, in any event, if those in the legislative and executive branches do not prevent another terrorist calamity, the finger of responsibility will be pointed at them. The judges and journalists, who had earlier claimed for themselves the authority to assess danger to the nation, will by then be safely offstage.

In these perilous times, it is a serious business to balance the value of exposing secret information against the risks. Congress and the executive branch should not cede this ground to newspaper reporters and federal judges.

Robert F. Nagel is the Ira C. Rothgerber Jr. professor of constitutional law at the University of Colorado, Boulder.