"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.