The often-bumpy relationship between government and the press — gracefully termed adversarial — is having another of its periodic bumps.
The Associated Press made its own news this week by denouncing the U.S. Justice Department for a seizure of two months of its reporters’ phone records, calling it “unconstitutional” and saying it just might take legal action to protect its First Amendment rights.
At issue was AP’s disclosure of details of a successful CIA operation in Yemen to stop an airliner bomb plot around the one-year anniversary of the May 2, 2011, killing of Osama bin Laden. Even though publication of the story was delayed at government request for security reasons, officials wanted to know how AP had obtained some of its information, hence the investigation.
The AP claims that damage has already been done to freedom of the press and the public’s right to know (in this case, about the reality of the terrorist threat), as people who ordinarily provide information to reporters are now reluctant to talk for fear of being spied on.
As the details of the case have yet to be fully investigated, it is premature to pass judgment. Perhaps Senate Judiciary Committee hearings into the affair should be held, as has been suggested by Sen. John Cornyn (R-Texas), a member of the Judiciary Committee, if only to review the guidelines for such seizure of reporters’ records.
But we do know that invoking national security in order to control news or to rein in critics can slam the door on transparency and accountability and bury the public’s right to know.
Some of the trouble begins with language. The word leaks has an inescapably negative connotation. As Koheles (10:18) admonishes us: “Through laziness the roof sinks in, and through the hands’ remaining low, the house leaks.”
In everyday life, a leak is a bad thing. It’s something that has to be fixed. It means calling the plumber or the roofer with zerizus, alacrity. Otherwise, it will get worse, the damage more extensive. It could even signal flooding and danger to life.
Thus, Nixon’s henchmen, out to stop leaks and serve their president by whatever means necessary, including break-ins and wiretapping, called themselves “the plumbers.”
But in a democratic society the metaphor is misleading. Leaks are, on the contrary, more often than not a good thing. It is a way for the flow of vital information to reach the public from government employees acting as sources for journalists. And the confidentiality of those sources is crucial, lest they be exposed to the wrath of their employers and fall silent.
Government would like to cloak its machinations for good or ill in a steady flow of bland communiquיs and pleasing photo-ops. It is the role of a free press to find out what’s really going on, to inform the public of the shenanigans that are being carried on in its name and with its tax money.
Of course, the journalists too are obligated to exercise restraint when untimely disclosure could imperil life or upset delicate negotiations for the public good.
Not that such judgments are always clear-cut. It’s hard to know when government officials are trying to protect homeland security and agents overseas, or when they are actually trying to protect themselves and their position in the bureaucracy, and perhaps to settle certain scores.
Indeed, there have been times when government itself has come to regret its proprietary attitude toward the dissemination of news. For example, after the failed invasion of Cuba, known as the Bay of Pigs fiasco, in early 1961, President Kennedy himself conceded that had The New York Times not gone along with White House pressure to play down its coverage in advance of the ill-conceived operation, it might have been cancelled, and many lives and much national prestige preserved.
Although Senate hearings might be in order, this vexing issue of freedom of the press versus national security will not be solved by new legislation. The First Amendment and the various rulings of the Supreme Court over the years are sufficient to the cause.
What is called for is a measure of self-restraint in government. As Sen. Cornyn observed, the focus should be not on journalists, who have a constitutional right to seek out and publish information, but on those who leak sensitive national security matters — not for the purposes of drafting legislation, but to impress on public officials their responsibility.
That same Kennedy Administration is a case in point. During the Cuban Missile Crisis of October 1962, meetings at the highest levels of government were conducted for the purpose of formulating a response to the clandestine placement of Soviet offensive nuclear weapons in Cuba. For almost two weeks, the secrecy of those meetings was maintained. There were no leaks; even Washington insiders knew nothing about it until the president revealed it in a solemn address to the nation.
The silence of the participants was of paramount importance. It was needed to give the group time to analyze reconnaissance images, thoroughly debate the various options (from immediate invasion of Cuba, to passive acceptance, to the middle course of a maritime quarantine of the island eventually decided upon), and to give Khrushchev time to reconsider and back down, which finally he did.
They were able to avoid leaks because they understood the gravity of the situation. World peace and millions of lives literally hung in the balance. It was not a time for self-aggrandizing chatter with favored reporters. It was national security for real.
Granted, it’s an extreme example. But it does show that leaks can be controlled when public officials are imbued with a sense of responsibility. It’s true even when lesser issues are at stake.