TCS Daily


The First, Refuge of Scoundrels

By Duane D. Freese - July 11, 2006 12:00 AM

"No doubt administrations tend to confuse what is embarrassing politically with what is essential for national security -- the Nixon administration perhaps more than most," Henry Kissinger observed in his memoir Years of Upheaval in a section about the Pentagon Papers case.

Today, almost exactly 35 years after The New York Times' legal victory over the Nixon administration in that historic case, the world has turned upside down.

The decision by NYT editors to publish the details of a classified program to examine private banking records of suspected terrorists has confused what is merely of public interest with what is essential for the public to know in matters of national security. Furthermore, they are claiming their editorial judgments are shielded by the First Amendment from accountability.

Times' Executive Editor Bill Keller said as much when he declared recently:

"We have listened closely to the administration's arguments for withholding this information, and given them the most serious and respectful consideration. We remain convinced that the administration's extraordinary access to this vast repository of international financial data, however carefully targeted use of it may be, is a matter of public interest."

In a letter to readers, Keller expanded his public interest argument including grounds echoing the observation by Kissinger:

"The government would like us to publish only the official line, and some of our elected leaders tend to view anything else as harmful to the national interest. ... Editors start from the premise that citizens can be entrusted with unpleasant and complicated news, and that the more they know the better they will be able to make their views known to their elected officials. Our default position -- our job -- is to publish information if we are convinced it is fair and accurate, and our biggest failures have generally been when we failed to dig deep enough or to report fully enough."

It didn't matter to Keller whether the program was legal or not -- "It's not our job to pass judgment on whether this program is legal or effective," he wrote, although he also admitted that reporters had not found it to be illegal and that it had in fact helped nab some terrorists, including the capture of the terrorist known as Hambali who killed 202 people in a bombing of a night club in Bali.

Still, Keller dismissed concerns about compromising national security: "A secondary argument against publishing the banking story was that publication would lead terrorists to change tactics. But that argument was made in a half-hearted way. It has been widely reported -- indeed, trumpeted by the Treasury Department -- that the U.S. makes every effort to track international financing of terror. Terror financiers know this, which is why they have already moved as much as they can to cruder methods. But they also continue to use the international banking system, because it is immeasurably more efficient than toting suitcases of cash."

The Times chief argues that his paper was only carrying out his paper's first amendment obligation to publish.

"It's an unusual and powerful thing, this freedom that our founders gave to the press," wrote Keller.

"Who are the editors of The New York Times (or the Wall Street Journal, Los Angeles Times, Washington Post and other publications that also ran the banking story) to disregard the wishes of the President and his appointees? And yet the people who invented this country saw an aggressive, independent press as a protective measure against the abuse of power in a democracy, and an essential ingredient for self-government. They rejected the idea that it is wise, or patriotic, to always take the President at his word, or to surrender to the government important decisions about what to publish."

Keller wasn't alone in waving the First Amendment and Founders as a shield against criticism.

The Washington Post, in an editorial, "An Alert Press," railed against members of Congress and the administration who condemned the publication, saying their "press bashing ... scores political points at the expense of constitutional values."

The Post even harkened back to the Pentagon Papers case, quoting lengthily from the concurring opinion of Justice Potter Stewart:

"In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry. ... For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press, there cannot be an enlightened people."

Thus, while in the course of publishing classified information there "may be times when editors get it wrong, either printing material that proves harmful or withholding information that should have come to light. But these are risks that the Constitution contemplated and that the Framers were persuaded were worth tolerating to ensure a free and vigorous press."

So, does the First Amendment gives the "press" carte blanche to publish whatever it wants in matters of national defense and international affairs?

Not really. Had the Post gone one paragraph further in quoting Justice Stewart, it would have written:

"Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense the frequent need for absolute secrecy is, of course, self evident."

Stewart, in his opinion, was balancing two competing interests. In the Pentagon Papers case, he came down on the side of the newspapers, because Congress hadn't provided direction and because, as his concurring partner Justice Byron White pointed out, "[p]rior restraints require an unusually heavy justification under the First Amendment."

But, White went on -- and the Times and Post should take note -- "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."

The Times and the Post can wave the First Amendment as much as they want and talk about the vital importance of a free press. But simply because they have a wide audience doesn't mean they should be held any less accountable than a spy for passing on classified information.

The Constitution and Bill of Rights belong to the people, as individuals, not unelected institutions. Freedoms of speech and press are individual rights of expression. And President Bush has pledged to uphold the Constitution and faithfully execute the laws of the United States -- that means without fear or favor.

The only thing that should give the Bush Administration pause in pursuing the Times and others engaged in transferring classified information is that such a prosecution might reveal more important classified information at trial.

But the Times' First Amendment and public interest smokescreens are absurd. As everyone else, they have a right to speak and publish their ideas, opinions and thoughts. But they have no right to shout fire in a theater -- or betray legitimate national security secrets -- no matter how big and powerful they are. The press needs to stop confusing the two.

Duane Freese is TCS Daily deputy editor.

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20 Comments

Freedom of The Press -- NOT UNLIMITED RIGHT
This is a problem with our confusion of "rights" and freedom. The statements by the NYT indicate this confusion. Cast as a right, it seems unbounded. Cast as a freedom, it is subject to balancing.

Here there is a balance between the freedom of the President to conduct a war and the freedom of the press to report on aspects of that conduct. If conducting the war interferes with the freedom of the press to report, there is a problem, but if the freedom of the press interferes with conducting the war, there is also a problem. Because interference with the conduct of the war may cost lives, and because interference with the freedom to report may only delay knowledge of aspects of that conduct, it is clear how the balance must be struck.

Interference with the conduct of the war the puts lives at risk should not be shielded by the First Amendment.

The NYT's War
The NYT has been at war ever since Bush was elected. Their enemy is the President. This much is evident. Since we have freedom of the press this is tolerable.

What is not tolerable is that the reporters at the NYT, and other leftist rags, are printing classified documents that are given them by employees of the government who are disgruntled. It matters not that it is legal to them, if it hurts Bush or his policy, even if it saves American lives, it is on the front page and slated for a Pulitzer.

The current war is not illegal and is not being conducted in an illegal way. If the NYT, or anyone else, breaks the law by revealing classified documents then they should be prosecuted. But, like the author says, they most likely will not do this in order to preserve other secrets.

More the pity...

The Refuge of Authoritarians
How Conservatives Have Become Authoritarians and What it Means
by John Dean
OpEdNews.com, July 10, 2006

...George W. Bush and **** Cheney are prototypical conservative leaders without conscience. The excessive secrecy of the Bush administration, in particular, was apparent even before the 9/11 terrorist attacks, but because the mainstream media ignored this issue, I wrote about it myself in Worse Than Watergate: The Secret Presidency of George W. Bush. Unlike the consequences of Nixon's secrecy, those of Bush and Cheney have been lethal. Realizing that only a partisan would remain silent, I wanted to make people aware of what was happening, for I RECOGNIZED THAT THIS WAS A DANGEROUS PRESIDENCEY. In Worse Than Watergate I did not analyze Bush and Cheney's behavior, because I was not sure then what was driving them.

However, after studying the matter, I believe that one can reasonably conclude that how they think, their policies, and their style of governing are based to an alarming extent on their own authoritarian personalities, WHICH TOLERATE NO DISSENT, use dissembling as their standard modus operandi, and have pushed their governing authority beyond the law and the Constitution.

"In his landmark book, Privacy and Freedom, Alan Westin...defines democracy and authoritarianism in terms of information policy," wrote Robert G. Vaughn, a professor at American University's Washington College of Law. Summarizing Westin's work, Professor Vaughn continued,

"Authoritarian governments are identified by
ready government access to information about
the activities of citizens and by extensive
limitations on the ability of citizens to
obtain information about the government.

In contrast, democratic governments are marked
by significant restrictions on the ability of
government to acquire information about its
citizens and by ready access by citizens to
information about the activities of government."

I did not use that quote when writing about Bush and Cheney's insistence on secrecy because I did not then really understand the true nature of authoritarianism, yet I was struck time and again by the authoritarian nature of the Bush/Cheney administration. Now I realize that BUSH AND CHENEY HAVE GIVEN AUTHORITARIANISM A NEW LEGITIMACY in Washington, and it is taking us where we should not want to go.

http://www.opednews.com/articles/
opedne_john_dea_060710_how_conservatives_ha.htm

John Dean was White House legal counsel to President Nixon for a thousand days. Dean also served as chief minority counsel for the House Judiciary Committee and as an associate deputy attorney general in the U.S. Department of Justice.

What secret?
If our gov't can't prevent a newspaper snoop from discovering so called national security secrets maybe the problem isn't the media but those that are the keepers of the secrets,how can we trust our representatives in gov't to keep confidential information from our enemies and others if they are incapable of keeping it from a lowly writer without the vast resources of even a half baked terrorist nation like Iran or a failed nation state like North Korea,so maybe we should be asking just who is it this information was supposed to be kept from,us?
Personally I say keep it up snoops of the press because if you can find out then pretty much anybody else can too.

no carte blanche for the govt
the problem with this argument is it allows the govt to claim that EVERYTHING it does is part of the war on terror, so that NOTHING can be reported on by the press. any reporting on any part of the war on terror has some potential ripple effect, so the apologists of the state can claim that any reporting on the war on terror is "interference" or "puts lives at risk," no matter how absurd the factual nature of the claim.

even more amazing is that people who have doubts about the legality of the program still criticize the press for reporting on it. if we adopt this reasoning, how can illegal actions by the govt ever be uncovered?

i believe the president should have the power to conduct a war w/o undue interference from other branches of govt. i don't believe such power extends to spying on citizens' banking records. was this done under this program? who knows? the bush govt certainly isn't gonna tell us.

here's a solution that preserves the constitutional balance: if you want to call this is a "war," define our enemy and our field of battle and get a congressional declaration. i'll be all in favor of a clearly-defined war against islamo-fascism. but an open-ended, secretive, endless war against whoever we want to fight is repugnant to a free constitutional society.

Cause or effect?
Trying to keep secrets from the enemy during war is by no means authoritarian. By your definition we are a democracy since our government does not seem able to hide its secrets at all. I would say that the Bush adminstration does not do enough to keep its secrets secret. Perhaps if the Bush administration had the likes of Sandy Berger on there side...

Not to mention that John Dean hardly needs logic or reason to attack Bush. This is like me using Rush Limbaugh to give commentary on Clinton. Would you except that as a source?

Question!
Do you have sources inside the Pentagon, CIA, State Department, Treasury Department, or White House? The collection of leftists at the NYT do. Those employees of the government who take issue with the policy or didn't get a pay raise find welcoming arms at the NYT.

Perhaps they are deluded into thinking that they are heroes for leaking classified information. I would say they are just committing treason.

Not to mention that the orginal article stated its secrecy, legality, and its success. Now that they feel the heat they claim that everyone knew about it and downplay the success. So, which version will they stick with?

As said
You missed the entire argument,think not of the news snoops as the enemy but rather as showing govn't is incapable of keeping anything "secret",so if someone will spill the beans to a news hound what exactly makes you think they wouldn't just as quickly to a foreign govn't agency spoofing a news outlet or sell outright to a foreign govn't,so maybe the problem really is in the vetting process or in what precisely is considered "national security secrets".

Apples to Elephants
I do not accept your comparison of Limbaugh to Dean. At no point was Rush Limbaugh a legitimate member of the Left Wing, nor did he ever work professionally with Clinton. But Dean was an acknowledged conservative who worked alongside Rumsfeld and Cheney within the Nixon Administration

Okay then...
how about David Horowitz? Quite an acknowledged leftist in his day. Check out his pedigree and how he feels about the NYT. I have seen many of his writings on this issue on FrontPageMag.com.

I can imagine that Cheney and Rumsfeld have changed somewhat in the last 40+ years since they were buddy-buddy with Dean. Not to mention the fact that Dean himself is an ex-con for abusing his office. Bush is not a criminal. John Dean is.

Nice, but...
the fact is that this wild scenario never occurred. The leak to the NYT did. It wasn't an act of "Ooops!". It was a conscious act to leak a classified counter-terrorism operation to the American press.

I won't go into the motivations of the slug who committed this crime. I will go into the motivations of the NYT because they are so very clear.

I think everyone is also missing that no one at the paper or on either side of the political aisle said this was an illegal program. The bipartisan co-chairs of the 9/11 commission spoke to the editors of the NYT, who blasted Bush for not stopping terrorist funding BTW, and pleaded with them not to release the information because of the operations successes. The NYT said they would consider and published it anyway.

It is a crime. Pure and simple.

Well...
that would be an improvement, but you're still off.

David Horowitz did not work for the Clinton Administration. In fact, by 1992 Horowitz was already well underway his conversion to Conservatism. In contrast, John Dean was and remains a Goldwater Conservative.

Interesting definition of a Conservative
I guess his heavy donations to the Gore and Kerry campaigns mark him as a conservative? Or perhaps it is having your buddy Russ Feingold invite you to testify at a Senate Judiciary Committee hearing in favor of censuring President Bush?

I guess I am just a little leery of standing on words spouted by a felon and noted liar who, for some reason, has found a voice in the liberal media.

But hey, you get your little quotes from whomever you desire.

The Goldwater Institute
Today what we call "libertarians" are probably the best remaining embodiment of the Goldwater Conservative (GCers for short). You see, GCers value civil liberty as much as personal responsibility -- some so much so that they would rather see a Democrat win then for the Republicans to fall to the "dark side" (Conservative Christian Fundamentalism/Evangelicalism).

Come back, Barry
by Adrian Wooldridge
The Economist, May 12, 2005

...One reason why Ronald Reagan had such an invigorating impact on his party is that he NEVER ALLOWED THE CHRISTIAN RIGHT TO GAIN TOO MUCH POWER AT THE EXPENSE OF THE GOLDWATER RIGHT. Messrs Bush and Rove may have to pay more attention to that balance if they are to realise their dream of turning the Republicans into America's permanent ruling party.

http://www.goldwaterinstitute.org/article.php?/653.html

---------

The Goldwater Institute
http://www.goldwaterinstitute.org/

Not true
"i don't believe such power extends to spying on citizens' banking records. was this done under this program?"

That was not done. Look it up.

Secrets! Secrets! Just a couple of bucks!
Look, I don't think that the NYT committed treason nor do I think that they should be prosecuted; However, I do think that the editors and journos should appear before a Grand Jury to answer some very tough questions about the treasonous bastards that are actively leaking secret information and undermining anti-terrorism efforts. It should come as no surprise to anyone that the NYT (et al) would publish stories that could damage Bush and the country. This is what they do. Sulzberger and Keller will sell our national secrets to anyone with a couple of bucks in their pocket. This is very revealing.

Re: Nice, but...
"the fact is that this wild scenario never occurred..."

Err. How do you *know* that?

Err. Because...
in the years since 9/11 the SWIFT operation was noted for its effectiveness and success. The 9/11 Commission, the Administration, Congress, and even the NYT admits as much. If this program was comprimised those leads would have fallen off a long time ago.

By the way, when you make up wild scenarios it is your obligation to prove that they HAVE happened. Defending them by saying "how do you know they didn't happen" doesn't make that scenario valid.

Ergo...
One reason why Ronald Reagan had such an invigorating impact on his party is that he NEVER ALLOWED THE CHRISTIAN RIGHT TO GAIN TOO MUCH POWER AT THE EXPENSE OF THE GOLDWATER RIGHT.

Gee, if only the democrats could find somebody who'd find a way to never allow the SECULAR RADICAL LEFT TOO MUCH POWER AT THE EXPENSE OF THOSE WHO CAN THINK. Oh wait, just watch what's happening to Lieberman for his apostasy from the hard left antiwar crowd.

Consequently
You're wrong if you think I'm going to defend the Democrats.

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