Who died and left you president?

Yesterday Los Angeles Times editor Dean Baquet and New York Times executive editor Bill Keller returned to the scene of the crime: “Why do we publish a secret?” The first half of the column consists of throat-clearing platitudes, the second half a remembrance of crimes past. If you’re looking for a few words to defuse your anger over the irresponsibility of the Times Two, you came to the wrong place.

As a marker of the column’s evasions, consider this from its throat-clearing first half:

Thirty-five years ago yesterday, in the Supreme Court ruling that stopped the government from suppressing the secret Vietnam War history called the Pentagon Papers, Justice Hugo Black wrote: “The government’s power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of the government and inform the people.”

As that sliver of judicial history reminds us, the conflict between the government’s passion for secrecy and the press’s drive to reveal is not of recent origin.

At issue in the Pentagon Papers case, however, was the question of “prior restraint” –whether the government could prevent the publication of the information in issue, not whether the press stood beyond the law prohibiting the dissemination or publication of classified information within the ambit of the espionage laws of the United States. Baquet and Keller somehow omit any reference to passages such as this one from Justice White’s opinion, which I believe accurately states the law:

[T]erminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way.

When the Espionage Act was under consideration in 1917, Congress eliminated from the bill a provision that would have given the President broad powers in time of war to proscribe, under threat of criminal penalty, the publication of various categories of information related to the national defense. Congress at that time was unwilling to clothe the President with such far-reaching powers to monitor the press, and those opposed to this part of the legislation assumed that a necessary concomitant of such power was the power to “filter out the news to the people through some man.” 55 Cong. Rec. 2008 (remarks of Sen. Ashurst). However, these same members of congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed. Senator Ashurst, for example, was quite sure that the editor of such a newspaper “should be punished if he did publish information as to the movements of the fleet, the troops, the aircraft, the location of powder factories, the location of defense works, and all that sort of thing.” Id., at 2009.

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

The same would be true under those sections of the Criminal Code casting a wider net to protect the national defense…


It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information.

(Footnotes omitted.) Yet Baquet and Keller claim a plenary power that places them beyond the reach of the criminal laws of the United States:

We understand that honorable people may disagree with any of these choices — to publish or not to publish. But making those decisions is the responsibility that falls to editors, a corollary to the great gift of our independence. It is not a responsibility we take lightly. And it is not one we can surrender to the government.

The proposition that the Times Two have a right to disclose classified information subject to the Espionage Act is no more true of the Times Two than it is of any other citizen whose right of free speech is protected by the same First Amendment that protects the Times Two.

David Reinhard of the Portland Oregonian addressed a relevant question to Bill Keller this past week: “Who died and left you president of the United States?” Reinhard wrote:

The issue is your decision to publish classified information that can only aid our enemies. The founders didn’t give the media or unnamed sources a license to expose secret national security operations in wartime. They set up a Congress to pass laws against disclosing state secrets and an executive branch to conduct secret operations so the new nation could actually defend itself from enemies, foreign and domestic.

Forgive me, I know this is pretty elementary stuff — but it’s the kind of elementary stuff that can get lost in the heat of strong disagreements. And get more people killed in the United States or Iraq.

Not to worry, you tell us, terrorists already know we track their funding, and disclosure won’t undercut the program. (Contradictory claims, but what the heck.) You at the Times know better. You know better than government officials who said disclosing the program’s methods and means would jeopardize a successful enterprise. You know better than the 9/11 Commission chairmen who urged you not to run the story. Better than Republican and Democratic lawmakers who were briefed on the program. Better than the Supreme Court, which has held since 1976 that bank records are not constitutionally protected. Better than Congress, which established the administrative subpoenas used in this program.

Maybe you do. But whether you do or not, there’s no accountability. If you’re wrong and we fail to stop a terror plot and people die because of your story, who’s going to know, much less hold you accountable? No, the government will be blamed — oh, happy day, maybe Bush’s White House! — for not connecting dots or crippling terror networks. The Times might even run the kind of editorial it ran on Sept. 24, 2001. Remember? The one that said “much more is needed” to track terror loot, including “greater cooperation with foreign banking authorities”?

Keep up the good work — for al-Qaida.


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