In its coverage of the government’s investigation into national-security leaks, the media have forfeited any claim to professional objectivity. News reports are loaded with editorializing terms such as “aggressive [anti-leak] policy,” “sweeping subpoenas,” and “fishing expedition.” And while editorials in the New York Times, Washington Post, The Atlantic, and Slate are full of sound and fury, condemning these and earlier investigations as “outrageous,” “threatening,” and Nixonian, voices on the other side are much less frequently heard.
There are, however, two sides to this story. A free society requires vigilant protection of a free press—and of national security. Each poses full legitimate claims, and neither should a priori trump the other. The issue is how to sort out when one of these claims may be privileged and who is best situated to make this decision.
The media’s answer is as loud as it is clear: Newspaper editors or publishers are perfectly capable of rendering these weighty, indeed sometimes fateful, national security decisions. Thus, Leonard Downie Jr. writes that as executive editor of the Washington Post he ruled “how to publish significant stories about national security without causing unnecessary harm.” In a joint op-ed explaining their decision to publish a story about sensitive aspects of the Bush administration’s counter-terrorism efforts in 2006, Bill Keller, former executive editor of the New York Times, and Dean Baquet, then editor of the Los Angeles Times, wrote, “We weigh the merits of publishing against the risks of publishing. There is no magic formula, no neat metric for either the public’s interest or the dangers of publishing sensitive information. We make our best judgment.”
Think about this for a moment. In one corner are the White House and the CIA pleading (the word used repeatedly to describe the dynamic) with editors not to publish highly sensitive information. Cases in point include information that the United States has succeeded in planting an agent right in the headquarters of al-Qaeda, is listening in on the top brass in North Korea, and has planted a virus that damages the nuclear facilities of Iran.
In the other corner is a person who likely never served in the armed forces, has no training in assessing the limited intelligence material he or she has access to, and has strong motives to publish whatever comes his or her way. Are these the kind of people to be entrusted with making the final decision about what will or will not cause “unnecessary harm”?
Even assuming, and this is one hell of an assumption, that the editors of major publications act responsibly—what about all the other media? What if the information leaks to the New York Post, Breitbart, Wikileaks, the National Inquirer—or some blogger with an axe to grind? Unlike doctors or lawyers, journalists need no license to practice; anyone, including foreign spies, can claim that they are journalists and hence are free to solicit classified information and publish it. Should they all be free to proceed unchecked? Or, is the responsible media willing to make a list of legitimate outlets that can be trusted to render these fateful decisions? Will “the” press then agree that the government can go after those that do not make the cut?
None of the editorials in the major media as much as mention that in other democracies, this issue plays out quite differently. Indeed, “we may be the only democracy in the world not to have what is called an ‘official secrets act,’” writes Daniel Gallington, who served in senior national-security positions in the Departments of Defense and Justice. The U.K.’s Official Secrets Act, much like the U.S. Espionage Act, prohibits government workers from disclosing information that is damaging to national security. But, unlike in the U.S., in the U.K. it is also a crime to publish classified information, and anyone, including journalists and publishers, can be prosecuted for airing leaked information.
Several editorials hold that these crackdowns on leaks are not really about national security but merely about the administration avoiding embarrassment or gaining political points. In making this claim, however, the writers do not argue that this holds for the recent cases—in which national-security issues clearly were at stake. They refer to past cases, where investigative journalism did indeed play an important role in exposing government incompetence or abuse. To protect such leaks, the Whistleblower Protection Act should be extended to fully cover those in the government that deal with national security. And the media should be able to appeal to a FISA-like court that can examine security matters in secret when it holds that it is being investigated for illegitimate purposes.