Washington Post associate editor Robert Kaiser explains the Post's approach to classified information and other government secrets uncovered by its reporters. Among other things, he notes that government officials have a tendency to exaggerate the sensitivity of certain material, as happened in the Pentagon Papers case and the "Ivy Bells" story.
Here is a taste of the article, but those interested in the subject (or prone to comment) should read the whole thing:
The Post's record on stories of this kind is good. I don't know of a single case when the paper had to retract or correct an important story containing classified information. Nor do I know of a case when we compromised a secret government program, or put someone's life in danger, or gave an enemy significant assistance.These are the criteria we generally use when evaluating a report based on classified information. Editors here spend long hours on these stories. We never rush them into print; our lawyers usually read them along with editors.
We publish news we think is important, which is usually easy to recognize. We always ask the administration of the day to comment on sensitive stories, knowing that we may be inviting efforts to dissuade us from publication. This happened in the case of Priest's story on the secret prisons. The Bush administration asked Leonard Downie Jr., our executive editor, not to mention the names of the countries in which these prisons were located, on grounds that naming them could disrupt important intelligence relationships. He agreed, in part because "naming the countries wasn't necessary for American readers," he said later.
But Downie rejected the suggestion that he kill the story altogether. "It raised important issues for American voters about how their country was treating prisoners, and it raised significant civil liberties issues," he said. Journalists are inclined to publish what we learn -- that's our job.
But we don't assert that the government has no right to keep secrets. On the contrary, we have probably helped the government keep secrets more often than we should have. But we exercise common sense, and seek guidance from knowledgeable people when we're uncertain. We avoid the gratuitous revelation of secrets. If we learn next week that the United States has found Osama bin Laden's hiding place, you are unlikely to read a story about it here before the government takes some action. . . .
Once we understand the need for balance, it follows logically that no single authority should be able to decide what information should reach the public. Some readers ask us why the president's decisions on how best to protect the nation shouldn't govern us, and specifically our choices of what to publish. The answer is that in the American system of checks and balances, the president cannot be allowed to decide what the voters need to know to hold him accountable. A king may have such power, but the elected executive of a republic cannot, or we will have no more republic.
Labeling something "classified" or important to "national security" does not make it so. The government overclassifies with abandon. And the definition of "national security" is elusive. Some politicians act as though revealing any classified information threatens our nation's security, but that seems preposterous.
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And, to some extent, he is probably right that his paper has not probably compromised programs and endangered the country with its disclosure of classified information. But the problem is that not all papers in a similar position can say the same (arguably and notably, the NYT would not seem to have been as principled here).
But why should we assume that all papers are going to have the same sort of morality that the WaPo has? Is there something about printing on dead trees that somehow imparts morality?
Yes, ultimately this individual 'takes it on himself' to decide if we hear information. In fact he has no choice, he is taking it on himself to make this deciscion no matter which side he ends up coming down upon. However, he is not taking it upon himself along. Hundreds of other editorial directors at other newspapers are making the same deciscions about similar materials all the time.
Besides, ultimatly this situation is unavoidable. Someone has to make this deciscion. Now perhaps you are going to suggest that only the president, as a duly elected representative of the people, should get to make this deciscion. However, the people themselves do not seem to agree with this position. The country may disagree with where the various papers have drawn the line (though I don't think so) but virtually everyone agrees the pentagon papers and the watergate story should have been released despite the president's protestations.
Ask yourself what you think a newspaper should do if they find photographs showing that the president personally murdered a staff member or is planning a coup but the whitehouse tells them (unconvincingly) that it would imperil national security to release this information. Obviously the paper should publish and not let the president get away with the crime. If you don't like my example come up with your own but you can't deny there are surely situations where it is appropriate for a newspaper to publish over whitehouse protestations that national security will be harmed.
Once you admit this point the 'argument' that newspapers are taking too much power upon themselves just falls apart. You have agreed that these individuals must make these calls themselves and now you are just quibbling over when they should make the calls.
In a time of war, which we are clearly in, there are going to be some restrictions on liberty. Phone tapping suspected terrorists is highly appropriate in today's times, and the newspaper outlets that chose to publish it should be highly criticized.
Instead of placing their patriotic heritage first, they chose to place their selfish careers first, and as a result, all terrorists now know that their phone calls may be monitored.
Question 2: Is there something about being sufficiently artful in lying and distorting your and your opponent's records that you succeed in tricking even a bare majority of the minority of Americans who vote to elect you to high office that somehow imparts morality?
Well, I must say that I feel much better that their assistance to our enemies was only of a normal, modest dimension.
Yes, good job, editors.
What they leaked was that the government was tapping the domestic end of international phone calls, without a FISA warrant, indeed without even informing the FISA court what they were doing, a clear violation of the FISA statute. Regardless of the administrations legal justification for such wiretaps many legal and constitutional scholars consider the program, as described, to be of questionable legality and constitutionality.
The government should not be able to use the classification process to conceal illegal acts. Exposing illegal acts and government malfaesence, especially when the legislature refuses to police the Administration as is currently the case, to the scrutiny of the public is one of most important functions of a free and independent press in a free, democratic society.
You seem to crave the kind of press that was prevalent in the Soviet Union, not what one would expect in a democratic society where the people are expected to demand accountability from their government and require them to act in a lawful manner.
Oh, they have known that for quite some time. Decades even.
By the way, on the day Congress actually declares war, we can start discussing what the Constitution says about the special powers of the Executive during war. Until that time, don't justify any of the president's extraordinary power grabs as legitimate because we are "at war". Because as a matter of constitutional law, we are not. Even the administration admits we are not legally at war any more than there is a literal war on drugs, cancer or sex before marriage.
r4d20 hit this one right on the head. The government monitors people that it suspects may kill thousands of innocent Americans? I never knew that before this "classified information" leak. I guess terrorists will now start using smoke signals to communicate with one another, now that the phones aren't safe anymore.
A terrorist who did not realize that the government might monitor suspected terrorists probably ought to find a new job.
What's that got to do with anything? The government is a public agency that works for us. Our government has an obligation to the people it serves that a private company does not. Regardless, if the company is doing something illegal or the documents pertain to something that it has a legal obligation to reveal (e.g., because of SEC regulations), then there is not an employment contract in the world that can compel the employee to keep the information confidential and the newspaper can not be sued for revealing it.
It's a false choice to suggest the only alternatives are to have the president answerable to the press, or to have no oversight at all. There's a legislative branch. Information can be brought to them.
I have to say it's reassuring to hear that, "If we learn next week that the United States has found Osama bin Laden's hiding place, you are unlikely to read a story about it here before the government takes some action."
Freder, do you think there are situations where publishing national security information would be criminal?
As should the "President" who couldn't catch them in the 4 years they were supposedly so clueless about such things.
Which leaves 3 possibilities as to why they were not caught:
1)terrorists realize that they may be subject to some electronic and physical governmental scrutiny when they are suspected of such acts;
2)the administration had little to no idea of what they were doing, or who they were watching, or;
3)some combination of the two.
I'm leaning towards 2 or 3. I find it unlikely that terrorists, who must have some idea that terror suspects are closely watched, never use any form of electronic communication at all. This leads me to believe that we don't know who we're looking for, and I don't think we will until it's too late.
I also find little support in the argument that a similar attack has not occurred since 9/11, so we must be doing something right. Before 9/11, a terrorist attack had not occurred since the one before that. So? Did that mean that there was never going to be another one? Clearly not.
Well, of course I do. Revealing classified information should necessarily be a risky business. But I think that there is certainly an argument to be made for a justification defense where if a person were prosecuted for revealing secrets it would be a legitimate defense to say that the good of revealing the secret outweighed the harm. And I think that if the information was subsequently found to be improperly classified either because it simply didn't merit qualification (I worked at the Pentagon and had a security clearance, it's amazing how much stuff is classified for no good reason or for completely bogus or clearly illegal reasons, i.e., to prevent information embaressing to the government from being leaked which is explicitly stated as an illegitimate reason to classify) or because the act was illegal, then of course no crime was committed at all.
I'll give you one example of just how ridiculously easy and how easily abused the classification process can be. A friend (Active Duty Army) of mine at the Pentagon worked at the press office during the First Gulf War. A "Secret" Briefing came across his desk. When he opened it up, all it consisted of was a bunch of clippings about the war from French newspapers, translations of the articles, and a couple paragraph summary of the articles. When I was working at the Pentagon, my coworkers were trying to get a report they prepared every month detailing environmental fines assessed against Army bases in the U.S. classified. The only reason they wanted to do so was to prevent embaressment to the Army. Fortunately, our Army lawyers told them they were crazy and if someone from the public asked for it they would have to cough it up.
The newspapers and some posters are quite right. The right of the public to know everything the government is doing instantly is paramount to the health of the republic.
The right of government employees to divulge information to the public is a prime directive.
Any withholding of information can only be for political reasons and is to be condemned.
What the heck were the secret prisons in Europe or the NSA wiretapping, if not secret government programs? We can argue whether they were good ideas or not, but I fail to understand what the above line means.
I believe the answer is it depends on the type of information revealed. If it's just a trade secret then the employee is liable, but the newspaper is not. If it is copyrighted material then the newspaper must obey copyright law (ie. make fair use of it) but otherwise is fine. Generally in situations like this once the secret is out it is no longer an offence to publish it. I'm not positive about this and would appreciate it if any knowledgeable person would comment.
It seems to me that the government is looking for more protection for classified information than is given to trade secrets. Seeing as classified information is generally more important this is not an unreasonable request on its face, but neither is it an obvious decision.
We are arguing about more than whether or not they are "good ideas or not". The argument is whether or not these actions are illegal and/or unconstitutional. Whether by conducting such activities the President has committed high crimes and misdemeanors. Whether the actions are so destructive of our system of government, our sense of justice, the rule of law, and our standing in the world, that the very future of our status as a Constitutional Democracy is at stake.
There is a lot more than whether secret prisons and tracking our phone calls is a "good idea" at stake here. Otherwise, I wouldn't waste my time arguing about it.
Lol, Freder, give it a rest for a second. And thanks for not answering my question. That was a throw away line to try to prevent people just like you from completely missing the point of my post. I'm NOT trying to get into a discussion of the merits. I just dont understand that one line from the editor.
Well, taken literally the editor is apparently saying that these programs' exposure in the Post doesn't strictly "compromise" their existence. I don't know whether this is true or not, but I don't think it really matters.
Yes, I am sure that they had no idea that the USA government had this capability before they read about the program in tne New York Times.
Okay, but how could they not have been compromised? Rightly or wrongly, it seems those programs rely on secrecy (at a minimum the NSA program) to effectuate their purpose.
I guess my opinion is that line by the editor can't be even plausibly true.
Instead of placing their patriotic heritage first, they chose to place their selfish careers first, and as a result, all terrorists now know that their phone calls may be monitored.
It has never been a secret that our government wiretaps suspected terrorists, which the law explicitly allows. The only secret was that the government violates the law to do so without warrants. I applaud the exposure of that secret.
Strange, I could have a sworn o'connuh, j. was talking about "fundamental incidents of war" in Hamdi. If not de jure, at least de facto. Because by your lights, the Korean, Vietnam wars and Gulf War 1 weren't wars, and we ought not to have augmented liberties as a result.
But I'm sure you know better than Scotus, eh?
Government cannot be trusted therefore any disclosure must mean the government broke the law. It is great to see you have internet access in those redoubts you live in.
FF: "Our government has an obligation to the people it serves that a private company does not."
I doubt that anyone here rejects that:
1. Accountability is important in a procedural democracy;
2. Wide dissemination of relevant information has a positive effect on accountability; where
3. Accountability means voting for or against (or petitioning or lobbying, etc.) a politician on the basis of relevant information.
The problem is whether any person in the public has a right to any information within the government's possession. The obvious answer is no. And even if one does have a right to certain information, that right does not entail disrupting the ordinary course of business of the government. Just as one cannot scour the books and records of a company in which one has purchased stock in such a manner as to interfere with the normal functioning of the company, one cannot shut down the government just to rifle through its documents. One also cannot expect that government employees will violate their employment contracts with their employer "in the service of democracy," especially given that their employers are the representatives that we elected to run the government. It is inconsistent to claim that the representatives we elect should run the government efficiently and that government employees should regularly betray their superiors. Holding the government accountable for its inefficiency when the inefficiency is caused by the dissemination of information used to hold the government accountable is absurd. It should be clear that the resort to the shibboleth of "balancing" means that we are faced with two incompossible goods.
... Ah, yes, Ahmed that is correct, the bomb is to be placed under seat C7 before the taping of the season finale of American Idol. Praise be to Allah that I can tell you this information over the phone since I have read nothing in the infidels' New York Times about any secret government programs and so I am confident that the NSA would not suffer the the inconvenience of obtaining a warrant as required by FISA to monitor this conversation ...
Do the editors (or the poster Jonathan Adler) really think that publication of the Pentagon Papers IN THEIR ENTIRETY didn't cause grave damage to the U.S.? Although individual parts of the PP were unclassified, the total compilation deserved the classification of Top Secret.
I suppose this perhaps applies more to whistleblowers, but it's line which the WaPo and the NYT would seem to have consistently been on the right side of (Pentagon Papers, Ivy Bells, etc). If the administration is ultimately vindicated, legally, on the various issues that have been leaked, then maybe it will be appropriate to criticize the papers. But right now, that's hardly clear, and since there was certainly "reasonable doubt" about the legality of much of what has been leaked (wiretaps, renditions, etc), how can the papers not be justified in leaking, provided they assume responsibility if proven wrong?
The question is whether potential whistleblowers should be making these kinds of calculations ("I'm not a laywer, but it seems illegal to me...") or whether they should instead be doing their jobs. As I have pointed out above, if there are no leaks, there are no leaks to report.
A former dictator's cocktail preferences and a facetious plot against Santa Claus were classified by the government to prevent public disclosure.
Also stamped "secret" for six years was a study that concluded 40 percent of Army chemical warfare masks leaked.
These and other ludicrous and lethal examples of classification were cited Tuesday by members of Congress and witnesses at a House subcommittee hearing into the Sept. 11 commission's conclusion that secrecy is undermining efforts to thwart terrorists.
Some classifications were made in error or to save face.
"There are too many secrets" and maybe too many secret-makers, said Rep. Christopher Shays, R-Conn., chairman of the Government Reform Committee's national security panel. There are 3,978 officials who can stamp a document "top secret," "secret" or "confidential" under multiple sets of complex rules.
No one knows how much is classified, he said, and the system "often does not distinguish between the critically important and comically irrelevant."
The problem is growing, said J. William Leonard, director of the Archives' Information Security Oversight Office, which monitors federal practices. Officials decided to classify documents 8 percent more often in 2003 than in 2002. Total classification decisions — including upgrading or downgrading — reached 14 million.
"The tone is set at the top," Shays said.
"This administration believes the less known the better," added the Connecticut Republican, noting sadly he was speaking of a GOP administration. "I believe the more known the better."
The panel's ranking Democrat, Rep. Dennis Kucinich of Ohio, noted that former President Clinton directed that in cases of doubt, the lowest or no classification be used. But in 2003, President Bush ordered officials to use the more restrictive level.
Steven Aftergood, director of a Federation of American Scientists project on secrecy, said some classification was clearly designed to conceal illegality or avoid embarrassment, even though that is forbidden.
Aftergood cited the "secret" stamp on Army Maj. Gen. Antonio Taguba's report of "numerous incidents of sadistic, blatant and wanton criminal abuses" inflicted on Iraqi inmates at Abu Ghraib prison.
But the government can punish its employees for violating their employment contracts. The Washington Post will have no leaks to report if there are no leaks to the Washington Post.
First, publication is not declassification. The fact that some details were published does not mean that other details may be disclosed. As such, documentation of calssified data will still be considered classified. For example, lets say some details of a grand jury testimony were leaked, the parties are not free to discuss them or their relevance. Nor are they free to release other information.
1993: World Trade Center
1996: Khobar Towers
1998: Embassies in Africa
2000: U.S.S. Cole
Think for a moment: what kind of prison has to have its very existence secret for it to be able to function?
Brrrrrr.
He was talking about government secret stuff, not anonymous sources and other secret editorial decisions.
Only to have your case dismissed because allowing the case would jeopardize national security.
(And I can just imagine what you'd demand be done with the Pentagon Papers.)
Open your above two posts to comments. Don't be afraid to hear the disagreement.
The only people who can (or should be able to) disclose classified information without prior approvalare the following:
1) The President
2) Anyone designated by the President
3) A member of Congress
I also don't recall electing Robert Kaiser or the editorial board of the Washington Post to a goddamn thing. Decisions involving national security need to be made by those chosen by the people (The President and the Congress) to represent their interests, not by a bunch of journalists tripping over themselves trying to get a Pulitzer.
To me, the obvious answer is yes. Our system relies on an educated populace making electoral decisions, which cannot happen if the government goes classification happy.
The default ought to be that EVERYTHING gets released for public consumption unless the President or his representative can make a compelling argument about a certain small set of materials in writing to the other two branches of government. (Active military plans, the identities of undercover operatives, etc.)
Members of Congress are not a sufficient check. They have to give confidentiality pledges to get on the intelligence committees. I haven't heard of a rule that lets members of Congress publish classified information in their own initiative. (Please provided it if it exists.) But even if that is the case, do you think Cynthia McKinney or ex-Congressman Jim Traficant are better able to decide whether disclosing certain "classified" information is in the public interest than the editors of the Washington Post?
This quote is almost a parody of itself:
Yes, government employees at all levels are angels who never put self interest (or the political interest of the executive) above the public interest when making any decision, including classification decisions.
I don't understand your point. My point was that they attempted to classify a document that was a summary of publically available information simply to avoid embarassment to the Army. The document was not publically available, but if a member of the public requested it (or generically requested the Army produce any summary reports of environmental fines assessed), under FOIA, it would have to be released. It would be embarassing to the Army, because at the time there (this was 1994) were about $40 million in outstanding fines.
Actually, under the Freedom of Information Act, the answer is yes, unless the government has a legitimate reason for witholding, and concealing illegality or preventing embarassment to the government are specifically listed in the Act as illegitimate reasons for witholding information.
As I noted in a previous thread, for those of you who think the MSM is out to get this president; the President publically stated that he was refusing to release photographs of him with Jack Abramoff simply because he didn't want his opponents using them against him. He tacitly admitted that the photographs existed, and that he wasn't going to release them because they were going to be embarassing to him, a clear violation of FOIA. Yet did the press call him on his clearly illegal act? Of course not.
leaked the papers) made the smart play during his legal trou
1. Generally, the Speech or Debate clause (Art. I, ss. 6).
2. Specifically, Gravel v. US, 408 U.S. 606 (1972). This case arose out of the "Pentagon Papers" incident in 1971. Daniel Ellsberg (the former DoD/RAND Analyst whobles to send a copy of the papers to Sen. Mike Gravel (D-AK). Gravel had the papers read into the Congressional Record, essentially declassifying them, and then paid for their private publication. When one of Gravel's aides was subpoenaed to testify about the papers, the Court quashed the subpoena on the grounds that both reading the papers into the Congressional Record and paying for their private publication were was both protected by the speech or debate clause, saying "The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process."
It seems to me that it would have been better (at least constitutionally) for Congress (or even just one ambitious member of Congress) to investigate these things and publish his findings, and not have them published at the say-so of a bunch of editors and lawyers who no one elected. (At least if a member of Congress screws up and reveals something that should be secret, he can be held to account in the next election.)
2. Specifically, Gravel v. US, 408 U.S. 606 (1972). This case arose out of the "Pentagon Papers" incident in 1971. Daniel Ellsberg (the former DoD/RAND Analyst who leaked the papers) made the smart play during his legal troubles to send a copy of the papers to Sen. Mike Gravel (D-AK). Gravel had the papers read into the Congressional Record, essentially declassifying them, and then paid for their private publication. When one of Gravel's aides was subpoenaed to testify about the papers, the Court quashed the subpoena on the grounds that both reading the papers into the Congressional Record and paying for their private publication were was both protected by the speech or debate clause, saying "The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process."
#1. In 2001, President Bush signed an executive order sealing all of his presidential papers forever, giving himself the power to block every Freedom of Information Act request during his lifetime. By pure dictate, he negated the entire 1978 FOIA law enacted by Congress under which all documents would default to unclassified 12 years after a President left office.
#2. The administration refuses even to give the names of industry executives who attended meetings and advised the Energy Task force and helped to write the resulting legislation. Yes, even the names of those individuals are classified as secret. They are classified not out of national security, but because they could be politically embarrassing to the President.
And this is to some extent the crux here - who should have the power to decide what is in our national self interest, and what is essential for "national security"?
And, no, we can't afford to run a 100% open government. Someone said that the 1st Amdt. was not a suicide pact. And just think of how many more of our soldiers would have died on D-Day and shortly thereafter if the WaPo or the NYT had published the fact that Patton's new "Army" being readied for the invasion of Calais was a fake, and that the real invasion was scheduled for Normandy. As was, the Germans concentrated their efforts on protecting Calais, and Hitler refused to release the Panzer reserves until too late, all as a result of this elaborate subterfuge. We are talking here probably about tens of thousands of additional casualties, plus the real chance of our invasion failing.
So, what happens if the NSA international communications interception program would have prevented the next 9/11 scale attack, but didn't because it was exposed, and because the terrorists knew about it (thanks to CNN), they were able to work around it?
The problem of classifying stuff because of embarassment is a red herring - or at least as much of one as my D-Day scenerio above. As a previous poster pointed out, the govt. cannot legally classify for this reason any way - and that would presumably be a valid defense. The reality is that no one can probably honestly say that either the NSA programs or the secret prisons were being kept secret for that reason - but rather, they were being kept secret for legitimate national security reasons, and that the programs have been harmed because of that. The Administration's intent has really never been much of an issue here, but rather, I would suggest, their resultant actions, and whether they were legal, or maybe just moral by someone's defintion.
So, why should Robert Kaiser or Pinch Sulzberger be able to make this determination, and not me? Not the editor of the home town paper with 1,000 circulation? Not Matt Drudge or Markos Moulitsas Zúniga or Eugene Volokh or Jonathan Adler?
My answer to this is that this is not a 1st Amdt. question, because if it were, you couldn't realistically draw that line (and SCOTUS has said that the govt. can keep information secret). Rather, it is a question of civil disobedience - but the problem with that is that you have to be willing to pay the specified price when you engage in civil disobedience, and the NYT, WaPo, LaT, USA Today, CNN, NBC, CBS, ABC, Fox News can afford to litigate this as a cost of doing business if they are wrong. Most of the rest of us are not. They also have the ability to put a lot of political pressure on any administration that does prosecute them.
No, the issue in these instances is that the government may have attempted to classify illegal acts, which is worse (in my opinion) than attempting to classify something that is merely embarassing. If the government can hide illegal acts from the people (including human rights abuses) and prevent redress of greivances by claiming "national security" concerns, what is left of the rule of law?
Depending on Congress to investigate the president only works when Congress is of a different party.
I'm also skeptical that a member of Congress would be able to get classified material into the Congressional Record today. The House and Senate leadership has been become far more aggressive about controlling minority actions. Would the Speaker of the House or the Majority Leader be able to stop the printing of classified material? I ask this because I really don't know the answer.
There are checks against newspapers. The AG is right--publishing classified information can be a crime. But the government has wisely chosen not to prosecute because newspapers have wisely chosen not to dislose information like the D-Day hypo. So the possibility of prosecution is one check.
Also, newspapers depend on subscriptions. People can give up their subscriptions if they think a newspaper has gone too far (and many big newspapers probably have more subscribers than some members of Congress have voters).
Explain how a terrorist would have acted any differently if he knew the NSA was wiretapping without secret warrants instead of with secret warrants?
Right, and everyone in government always follows the letter of the law.
One final note. It's sometimes the job of the government to keep secrets. It's the job of journalists to tell secrets. It's an uneasy balance, but it has largely worked because one purpose of the First Amendment is to let the press be a check on government abuse. I also think the ambiguity in the legal duties of the press and the government has helped keep both institutions in line.
As the father of two Army officers, I have to wonder why anyone would argue against the classification of this information as "secret" until the defect was corrected. What if a serious design flaw in our AWACS were discovered rendering them useless, placing our combat aircraft at a much greater risk of being shot down? Suppose this information was classified and then leaked to the media. Would the media be "responsible" in publishing this information at a time when these aircraft are carrying out actual combat operations?
I'll never forget watching Geraldo Rivera, live on FNC, drawing out, in the sand, the battle plan for the U.S. forces attacking An Najaf, Iraq minutes prior to the attack. My younger son was "boots on the ground" as a rifle platoon leader in the unit (101st Airborne Division) that was about to execute the attack. I watched in horror praying the Iraqi military command and control group was not tuned in.
Any publication of classified material which may expose our soldiers, sailors, marines and airmen to an increased risk of being wounded or klled in combat while those combat operations are ongoing, seems to me to be aid and/or comfort to our enemies.
In the Army, one has a duty to refuse to follow illegal orders. Ultimately, this is an individual responsibility, and if there is to be any sort of check at all, then people, if they honestly and sincerely believe that the order they are given is illegal, must make their own decision to disobey it. It seems to me that a similar dynamic exists with respect to disclosing classified info.
Some of the commentators here take issue with the idea of one unelected man or one unelected organization making a decision to leak/publish. But what other moral choice do they have if they believe what they are revealing is illegal (and thus not legitimately classified)? Of course they have to be willing to accept the consequences if they are wrong (e.g. prosecution), just as a soldier who disobeys as order that is later found to be legal would be. And perhaps if it is unclear whether something is illegal, then they should the consequences of going public against the probability of it actually being illegal. But unless you think the WaPo, NYT, etc are so craven that they are publishing just to score political points, they presumably have made these calculations, which is all we can (and must) ask of anyone. You may disagree with the results of their decision, but to say that they were wrong to make a decision at all is absurd.
Regarding the "we are at war" debate raised by some posters, while Hamdi did speak of incidents of war, Congress has not formally declared war, it has passed an Authorization for the Use of Military Force. According to a paper by the Congressional Research Service, there is a legal difference between the two, and this diffence is important because of the impact that a formal declaration of war may have on many other statutes, and in the business world (especially insurance). But, the point is largely an academic one, as everyone will concede, with US troops in two foreign countries, being attacked on a daily basis, it sure looks like a war.
I think this post raises a good issue for discussion, which is where we do draw the line between "good" leaks and "bad" leaks (or, if any are good, for that matter), and how do we maintain a proper check on the Executive Branch's tendency to over-classify information (not limited to this adminstration). It seems to me that the response can't be that the only check is Congress, as Congress may not know of the activity that is classified, or may not be able to reveal it (e.g., the NSA program, told only to a few Senators and House members). On the other hand, I assume everyone would agree on the dangers that irresponsible journalism might pose for our troops (the Geraldo Rivera example, discussed above, but I am reluctant to call him a journalist).
I do not believe you can criminalize publishing of leaks even if it would be advisable. The first amendment gives the press wide protection. One can never be sure how far the courts will decide that protection extends and the courts can and will change their opinions as it suits them.
Both politicians and publishers have opinions and agendas. To accept either at face value is foolish. Given the record of the recent past, I'd say distrust and verify would be a good policy.
This is the thing that is most puzzling to me. Lots of otherwise upstanding conservatives seem to think this way. Since when has "The Government can do no wrong" become a tenet of conservative philosophy?
The government can and does classify things for improper reasons. Sometimes they classify things to avoid damage to careers or political embarassment. Sometimes they classify things to hide illegality. In the Wen Ho Lee case, the government tried to classify material after the fact in order to bolster its criminal case.
I agree, of course, that some things are legitimately classified. But democracy thrives on sunlight. Allowing the government to shield anything that's embarrasing, illegal or politically inconvenient by stamping "secret" on it is just as bad -- or worse -- than having the occasional legitimate secret published.
I support serious criminal penalties for leaking legitimate classified information. BUT there ought to be equivalent penalties for people who classify information about illegal programs or because the information would embarass someone if it got out. Countervailing penalties would motivate folks on both sides to do the hard thinking that ought to go with either the decision to classify or the decision to leak.
Yes, I agree that extreme situations like I suggest don't provide any defense of the actual material released by the newspapers. This is why I said we can still argue about where to draw the line.
However, an earlier commenter had argued that the WaPo editor was taking too much power on himself by unilaterally making the decision to publish or not to publish this information. My point is that everyone agrees that at some point a newspaper ought to publish despite resistance from the president. Thus everyone agrees that the newspaper editors must take these deciscions on themselves. The only argument is whether or not you agree with the deciscions they made, i.e., did these actual cases cross the line where they should reveal information despite presidential objections.
So the worry people raise in this thread is primarily that the people making the deciscions to publish/declassify material are not elected representatives. I agree this would be a nice feature to have but as long as the system is working why is being an elected representative such a big deal? Besides, I bet if you did enough digging you would find that there are elected representatives helping the journalists out on all these big stories.
Still if you disagree with this how about this solution? Make it illegal for journalists to publish classified information unless they have approval from three congressmen, and legislature that no agreement barring congressmen from giving such consent is legal. Would that fix your worries? Do you really think that all these stories that have recently come out wouldn't have been able to get Ted Kennedy, Barney Frank and Diane Feinstein/Russ Feingold to sign off on them?
Whether you like these stories coming out or not it is obvious that a sizeable minority of the population finds these stories very disturbing and believes they should have come out. Any solution which guarantees sizeable minorities the power to expose secrets they think are troubling will allow these reports to be released. So if you are truly concerned with the role of unelected reports favor a system like that above or one where we elect anyone who gets at least a 10% approval rating in the country as a whole to be a special declassifying position with the right to expose any program they think the public should know about. I guarantee you we will see the exact same stories except perhaps the original osama phone story which was bad judgement.
Also far from harming the US the revelation of the domestic phone tapping program probably did a great deal to help our position with Al Qaeda. They already knew we might be tapping their phones but this publication demonstrated we didn't feel bound by the law in pursuing them and no doubt made our interrogation of them and other threats we might make more believeable.
Umm, because the masks continued to be used and the people potentially harmed by concealing the defects would have been the users. The only reason to conceal the defect was to protect the manufacturer of the masks from embarassment and potential liability. Apparently, someone cared more about the profits and reputation of a government contractor than the lives of our soldiers.
With exposure of the defects, the masks could have been immediately removed from the inventory and replaced with non-defective ones and the maker of the defective ones fined and banned from further contracts with the Army. It's not like chemical masks are rocket science and it's a sole source contract.
I am not suggesting a fettered press, but rather, an accountable one - where they take the chance that they might go to jail for disclosing classified information. If they are right (such as to the gas masks), then the administration is unlikely to pursue them, but if they are wrong, then they pay the proscribed price.
But, as I pointed out above, there is a slippery slope here, and you can't give the WaPo and NYT the right to make these decisions without giving it to those with less and less circulation. Where do you draw the line? My line is that there are laws in place that potentially subject the press to some chance of prosecution. If they screw up, and national security is threatened, then they should pay the price. If they don't screw up, and the national interest is not harmed, and, if, in particular, it is advanced, the administration is unlikely to prosecuted.
I submit this is the core of the debate. I also submit that Bruce's position is absurd, particularly for a conservative.
Besides, the bulk of at least the NYT subscriptions are presumably held by a demographic who mostly voted against the president in the last two elections, and the paper has shown itself willing on many occasions in the past to publish and not publish based, it seems, primarily on whether or not he and his administration would be harmed. (for example, the very disparate treatment between Bush's TANG requirements and Kerry's almost identical Naval Reserve requirements)I am not sure if you are presupposing that the FISA Emergency Orders provision would have allowed the surveilance if utilized more frequently - all we have there is the AG's repeated statement that it wouldn't. Obviously, he is in a far, far, better position to determine this than any of us, given that he is the one who has to grant the orders, but, then again, he is also biased.
So, assumming the alternative, that you meant to ask whether compromising the program resulted in al Qaeda changing its communications methodologies, again, he, as well as others in the Administration, have stated that it has - by al Qaeda not utilizing communications that would be tracked this way as frequently. For example, there is some indication that they are using disposable phones much more these days as a result of this.
A somewhat similar example concerns satellite phones. Early in our WoT, al Qaeda was apparently utilizing them with some frequency, given the remote locations from which they were operating. But when the fact that we were monitoring these calls became public, al Qaeda pretty threw away all their satellite phones.
Besides, my argument is really the opposite, that neither is to be trusted, and because of that, there have to be checks on both. The absolutist 1st Amdt. / pro-press position here seems to be that the press is somehow the White Knight here, and can be trusted to do what is right.
My position is that both are suspect, probably equally, but that there are plenty of checks on the Executive, including the other two branches of government, the press, etc., and that it is important that there be checks on the press too - and making them legally exempt from prosecuction for violating national security laws would just remove one of the few checks we have on them. (And note that I distinguish between being legally exempt from these laws, and being practically exempt, which is where I see the law today, but which allows for prosecution when the situation warrants it).
Well, now we're getting down to it. I think you are quite wrong here. Conservatives are always complaining -- and quite rightly -- about unelected, unaccountable judges making laws. But here, the shoe is definitely on the other foot. There is precisely one elected official in the entire executive branch. How many bureaucrats have authority to classify things? Most certainly tens of thousands if not hundreds of thousands. The people are both unelected and unaccountable. Worse, the vast majority of them are nameless and faceless.
But the situation is even more troubling when you start looking at high level decisions made by, or with the knowledge of, the one elected officer in the executive -- the president. True, the president is both elected and accountable. But if the president is able to make himself unaccountable for embarrassing or downright illegal decisions by declaring them to be classified, how is democracy supposed to function?
In this sense, the press is far more accountable than the president. If the press makes a mistake and publishes classified information when it should not have, it's going to have to face the consequences. If the president makes a mistake, he can just declare it to be classified and no one will ever find out.
While it's troubling to me that revealing the administration's putatively illegal wiretapping/data mining operations might somehow benefit terrorists, it is far more disturbing to me that, had this information been out in the open, it might have tipped the election to Kerry -- and I was by no means a Kerry supporter.
Terrorism is a transient threat. In ten or twenty years, ObL will just be a bad memory. But things that impact our democracy can have serious, long-term consequences. We should be very wary of creating a culture of secrecy that encourages bureaucrats and politician to mistake their own personal interest for the national interest.
Classifying information to hide illegality is even worse, even if done with the best of intentions. The advice given regarding activist judges, "If you don't like the law, get the legislature to change it," applies a fortiori to the executive. Declaring a program to be classified is not a substitute for complying with the law.
Now, on balance revealing the information may be a good thing since it may lead to replacing the masks sooner, but _your_ argument doesn't even make sense. If the gas masks are used and fail, then the situation will be revealed. If they're not used and don't fail, then there's no "liability" for "lives of our soldiers."
If I notice that my neighbor left his front door unlocked when he went on vacation, is "the only reason" to keep it secret that I don't want to embarrass him for his carelessness? Perhaps it might be a good idea to keep it secret so that I don't reveal his home's vulnerability?
Not letting our enemies know that 40% of our troops are vulnerable to a particular weapon seems like a pretty good idea.
I agree with those who suggest that in situations like the wiretapping, it's absurd to suggest that the newspapers were revealing important information to the enemy. But this is not such a situation. This is a situation in which you're providing the enemy with operational information that they won't otherwise have.
Additionally, you never answered my post in the previous thread on this topic: why do you think that the threat of prosecution is insufficient deterrent in the case of the leaker -- especially since we've established that the leaker can't hide behind some imaginary journalist-shield first amendment privilege -- but would be sufficient deterrent in the case of the media?
I can't find that one at all. Here are all EOs signed by President Bush. Which one is it?
http://www.whitehouse.gov/news/orders/
Executive Order
It gives a former President absolute veto power over the following information:
Which is, essentially, everything generated by the White House.
Here is where the missing link from the WH page was first noticed.
http://www.525reasons.com/archives/000577.html
The immediate purpose of this? It came in 2001 just as the National Archives was preparing to make available tens of thousands of pages of documents from the Reagan administration (12 years after 1989), some of which would have embarrassed GHW Bush in relation to Iran-Contra. They are now blocked from public access.
Very interesting and, I agree, disturbing. But, being an executive order, is there anything to prevent a subsequent president from rescinding it?
2. Government employees do not have the right to violate their contracts regardless of the newspapers' right to publish.
3. Government employees do not have the right to override their superiors' policy-making decisions.
There is no balancing test. The newspapers can publish whatever they want, even if their judgment is poor and they are untrustworthy; government employees cannot make unauthorized leaks.
Leaks are crimes.
Actually, FOIA is not the constitutional default; FOIA is a statute; the constitutional default is what exists in the absence of FOIA; in the absence of FOIA there is no such right. Moreover, you took my statement out of context. What I said in full was: "The problem is whether any person in the public has a right to any information within the government's possession. The obvious answer is no. And even if one does have a right to certain information, that right does not entail disrupting the ordinary course of business of the government." FOIA, as it clear from your description, permits a right to "certain information," not "any" information. Notice the bolding of the word "unless".
And the difference is....? IANAL, but I can read the Constitution just as well as anyone else. It definitely gives Congress the sole power to declare war, but it doesn't specify any particular wording that must be used.
Because the harmful effects of revealing classified information are a negative externality.
Why is it that there's always someone somewhere in the most unrelated of discussions who, opposing free markets, adds "well, if you like markets so much, why not just let the market take care of this one" without really understanding them? (But then, I've answered my own question.)
Well no, If you notice your neighbor's door is unlocked when he goes on vacation you go over and lock it for him. You just don't sit on the information and hope nobody else notices.
That is exactly what happened with the chemical masks. The Army knew they were defective, yet they continued to leave them in the inventory because they didn't want to spend the money to replace them with non-defective ones (at what, $100 or so each). Then they classified the information simply to conceal the fact that they were risking the lives of the soldiers. The Army could and should have replaced the masks immediately but were literally betting the lives of soldiers that the masks wouldn't be used before the end of their normal useful lives when they would ordinarily be replaced. Only when the defective masks were exposed to the public did the Army get off its ass and pull the defective masks and replace them with good ones.
Or a democrat.
That said, I would be interested in any binding precedent to the contrary - where this Court said the opposite - that the press is immune from prosecution under these federal statutes.
Exactly what the Army refused to do until they were shamed into doing it by the press. It's like you had your neighbor's key but thought, noone will notice his door is unlocked, hopefully nobody will take his stuff while he is away. But your other neighbors hound you and embarass you to lock his door before something bad happens.