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.”
Slate has two recent articles that illustrate a growing fear of facts. The first looks at the Republican party generally and Mitt Romney specifically.
It’s tough times for facts in America. First Mitt Romney—interviewing for the position of president—declined to release his tax returns because, as he explained, the Obama team’s opposition research will “pick over it” and “distort and lie about them.” He isn’t actually claiming that his opponents will lie. He’s claiming he’s entitled to hide the truth because it could be used against him. As Jon Stewart put it, “You can’t release your returns, because if you do, the Democrats will be mean to you.” These are tax returns. Factual documents. No different than, say, a birth certificate. But the GOP’s argument that inconvenient facts can be withheld from public scrutiny simply because they can be used for mean purposes is a radical idea in a democracy. It has something of a legal pedigree as well.
Probably not coincidentally, last week Senate Republicans filibustered the DISCLOSE Act—a piece of legislation many of them once supported—again on the grounds that Democrats might someday use ugly facts against conservatives. The principal objection to the law is that nasty Democrats would like to know who big secret donors are in order to harass, boycott, and intimidate them. The law requires that unions, corporations, and nonprofit organizations report campaign-related spending over $10,000 within 24 hours, and to name donors who give more than $10,000 for political purposes. Even though eight of the nine justices considering McCain-Feingold in Citizens United believed that disclosure is integral to a functioning democracy, the idea that facts about donors are dangerous things is about the only argument Senate Republicans can muster. Last week even Justice Antonin Scalia told CNN’s Piers Morgan that “Thomas Jefferson would have said the more speech, the better. That’s what the First Amendment is all about. So long as the people know where the speech is coming from.”
That’s a ringing defense of the need for disclosure, which Scalia has always supported.
Not to be outdone, the State Department just won a case about the secrecy behind the diplomatic cables Wikileaks released in 2010 and 2011.
The government, it appears, would like to pretend that never happened even though anyone who cared has taken a look, and their contents have been reported around the world. If you want to double check that they’re out in the public, you can do so here.
Back to Slate:
It sounds like something from Catch-22. A U.S. district court judge on Monday ruled that diplomatic cables published worldwide by WikiLeaks, the New York Times, the Guardian, et al., are actually still secret. Why? Because the government says they are secret…
…The government’s logic, and the judge’s, is—and I do not think I am exaggerating or distorting their arguments here—that just because something is public doesn’t mean it isn’t also secret. In this case, the cables are secret because they contain information that could be harmful if released. Never mind that they’ve already been released by WikiLeaks. They still could be harmful if released by the government.
The ruling seems to uphold a broader U.S. government philosophy that even when everyone knows the government is doing something—conducting drone strikes in Yemen, waterboarding prisoners in Guantanamo—the government can continue to pretend that it is not doing it, and the courts will back it up.
Related: See Glenn Greenwald’s article in today’s Salon about Dianne Fienstein, California Democrat and Chair of the Senate Intelligence Committee, and her continued calls to prosecute those disclosing sensitive government information (eg. drone wars). In it he writes about how government is defining what is a permissible leak and who permissible leakers are (spoiler alert: themselves).
“In sum,” Greenwald writes, “leaks of classified information are a heinous crime when done to embarrass or undermine those in power, but are noble and necessary when done to bolster them.”
Put them in front of the grand jury. You either answer the question or you’re going to be held in contempt and go to jail, which is what I thought all reporters aspire to do anyway. I thought that was the crown jewel of the reporter’s resume to actually go to jail protecting a source.
Representative Trey Gowdy, Republican, South Carolina, during a House Judiciary subcommittee hearing on leaks to the press about subjects such as US cyber warfare preparation, the killing of Osama Bin Laden and US kill lists. Los Angeles Times, House Republicans consider prosecuting reporters over leaks.
Evidently, Gowdy isn’t a fan of Shield Laws.