Right of Privacy
National security meets the culture of modern journalism.
May 31, 2010, Vol. 15, No. 35 • By GARY SCHMITT
National Security, the Media, and the Rule of Law
God forbid that the United States suffer a second terrorist attack on the order of 9/11—or worse. Should one occur, however, heads will roll, with whatever administration is in office being picked apart by Congress, the media, and the public for its failure to protect the country. Fingers will be pointed at the CIA, FBI, DHS, Justice, and the White House—and perhaps justifiably so. What you will not see, however, are fingers pointed at the New York Times. But it may well be that the Times, the nation’s “paper of record,” will be as culpable as any of those other institutions.
It was the Times that decided to ignore administration pleas and publish, in late 2005, the blockbuster story revealing the Bush administration’s program to track en masse al Qaeda communications. And it was the Times that, a little over six months later, ran a front-page article detailing how the government was tapping into the international bank transfer system, enabling it to track terrorist financing and, with it, names and burgeoning plots.
Of course, it will be impossible to prove culpability on the Times’s part should another attack occur. Nevertheless, as General Michael Hayden, former director of the National Security Agency, has said about the intercept program: “If we had had this program in place [before 9/11] we would have identified some of the al Qaeda operatives in the United States.” In short, it is almost certain that, by running the stories it did, the Times—along with its sister journals that rushed to fill in missing parts of the story—made it more likely that Osama bin Laden and company would modify their operational practices, and American security would be worse off for it.
But don’t expect the Times—or, for that matter, most major American media outlets—to own up to that fact. As Gabriel Schoenfeld argues in this insightful, historically rigorous, and pointed account of the tension between a free press and government secrecy, editors and reporters have come to believe that the First Amendment makes them sole judge and jury of what secrets can be published. Since the 1970s, with the publication of the Pentagon Papers, revelations about various improprieties of the U.S. intelligence community, and the rise of the superstar investigative reporter, the press has laid claim to an “unfettered freedom of action with accountability to no one but themselves.” If the print media had a sense of irony, they would see that what began as an assault against an imperial presidency has produced an imperial press.
This absolutist reading of the freedom of the press, along with accompanying aversion to the notion that the government has a right, indeed a duty, to keep its secrets, would be news to the country’s Framers, according to Schoenfeld. From the nation’s first days there were elaborate and sustained efforts to keep diplomatic and military matters secret, and no legal scholar of note argued for an unfettered right to print anything that came into an editor’s hands. And indeed, even when the Supreme Court has batted down efforts by the government to stop a publication—as in the Pentagon Papers case—the justices have made it clear that, should a story warrant it, prosecution after publication is still possible.
Nor is it the case, as Necessary Secrets reminds us, that the press has always held the view that its job was a single-minded effort to uncover any and all secrets that it could. During World War II, for example, President Roosevelt established an Office of Censorship to help keep military-relevant information from appearing in the press or in radio broadcasts. But the system for doing so was based largely on voluntary adherence to a government-authored censorship code while the office itself was headed by journalists. To keep editors and publishers informed about what not to publish, the government would distribute regular updates on what matters to avoid writing or broadcasting about—including subjects clearly pointing to the fact that the government had an atomic bomb program underway.
Instead of seeing these bulletins as a mother lode of leads for reporters to follow up on, the vast majority of the press deferred to the government—behaving as citizens first, members of the fourth estate second.
Of course, as Schoenfeld takes care to point out, the media are aided and abetted in breaking the veil of government secrecy by those inside the government willing to leak such information. And this is not a new problem. From the beginning the government has had problems keeping things secret. Early, famous leakers included Thomas Paine and James Monroe. And perhaps the most famous leaker of all was Herbert Yardley, the onetime government code-breaker who detailed his prior success in unlocking Japanese ciphers after World War I in a series of magazine articles and then a book, with the result that the Japanese upgraded the security of their systems, leaving us blind to Japanese plans for attacking Pearl Harbor.
Yet by all accounts the problem of leaks has grown considerably in recent years which, when combined with the press’s own predilection to run a story unless the government can conclusively show that doing so puts lives directly in jeopardy, means we have, as Schoenfeld spells out, created a dangerous dynamic.
It would be wrong, however, to leave the impression that Necessary Secrets is some diatribe against modern journalistic practices. Schoenfeld fully understands that there are costs to government secrecy in the quality of our democratic deliberations. Moreover, Necessary Secrets provides a nuanced, balanced account of the applicable laws and cases that have arisen from the government’s relatively rare efforts (and even rarer successful efforts) to prosecute anyone for breaking their secrecy pledges or publishing material that violates espionage laws.
Although existing laws could be refined to better deal with this problem, Necessary Secrets suggests that the statutes we do have, combined with court precedents, are generally sufficient. But administration after administration has been reluctant to use them—or as Schoenfeld concludes from his review of recent history, to use them wisely. For reasons that are obvious but not satisfactory, the government has found it easier to target isolated individuals, such as Steven Rosen and Keith Weissman in the AIPAC case, than to tackle a media giant, such as the New York Times: this, despite the fact that a stronger case could be made that the Times, in publishing its stories on the intercept programs, was running more seriously afoul of the law than either Rosen or Weissman, and its actions were more damaging.
Allowing the press to use the First Amendment as a Get Out of Jail card is, as this thoughtful book makes clear, a recipe for ensuring that keeping real secrets—necessary secrets—will only grow increasingly difficult.
Gary Schmitt is director of the program on advanced strategic studies at the American Enterprise Institute.
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