The government’s case, in short, was that disclosure of classified information by a soldier who explicitly aims to inform the whole world, to an agency that explicitly aims to inform the whole world, in a medium that is accessed by the whole world, amounts to aiding the enemy, a crime punishable by death. I can think of many countries that would enthusiastically enforce such a policy. Let’s not be one of them.
On its side, the Obama Administration has the courts, the intelligence services, Congress, the diplomatic service, much of the media, and most of the American public. Snowden’s got Greenwald, a woman from Wikileaks, and a dodgy travel document from Ecuador. Which side are you on?
Washington is currently going a little nuts on the subject of leaks. The Obama administration, which has, without really setting out to do so, already surpassed all previous administrations in its prosecution of leakers, has begun new investigations into disclosures by The Times, Newsweek, The Associated Press and others. Congress has mandated surveillance systems that make it easier to identify leakers and to prevent unauthorized downloads of classified material.
But that has not quieted the hysteria. Republicans are accusing the F.B.I. of insufficient zeal and demanding a special prosecutor. Democrats, typically worried about being perceived as soft on national security, have tried to out-deplore the Republicans. Senator Dianne Feinstein introduced a bill the other day that, among other things, would forbid background briefings on intelligence matters by anyone except an agency’s director, deputy director or public-affairs spin doctors - thus cutting out the officers with firsthand knowledge and silencing those who question the party line. It should be dubbed the Keep Americans in the Dark Act. Feinstein already seems to be backpedaling a bit, after discovering that top intelligence officials think elements of her bill are ridiculous…
…Over the decades, rival interests — the government’s legitimate responsibility to keep some things secret, the press’s constitutional freedom to ferret out information and report it — have coexisted through informal understandings. The government worked to protect secrets at the source but generally accepted that it had little recourse once they had escaped. Violators were reprimanded, but hardly ever charged under the Espionage Act. Reporters and editors were sometimes persuaded to withhold information if they were convinced it could put lives at risk.
Alexander Bickel, who was the chief counsel for The Times in the Pentagon Papers case, wrote that this accommodation “works well only when there is forbearance and continence on both sides. It threatens to break down when the adversaries turn into enemies, when they break diplomatic relations with each other, gird for and wage war. Such conditions threaten graver breakdowns yet, eroding the popular trust and confidence in both government and the press on which effective exercise of the function of both depends.”
Bickel’s argument, in a seminal book of legal philosophy called “The Morality of Consent,” assumes a respectful - if adversarial - relationship between, on one side, an establishment press and, on the other, a government that accepts the value of compromise in the conduct of public affairs. It’s arguable whether we have either of those today.
Bill Keller, New York Times. The Leak Police.
A must read from this weekend.
In it, Keller walks through some US journalism history. In particular, Max Frankel’s 1971 deposition defending the New York Times’ publication of the Pentagon Papers. At that time, Keller writes, “Frankel acknowledged the self-serving nature of [leaks] - on both sides - but concluded that this ‘cooperative, competitive, antagonistic and arcane relationship,’ as he called it, was essential to the working of democracy.”