A Secret the NYT Kept vs. Those It Did Not

Scott Johnson contrasts the NYT’s silence on the David Rohde kidnapping to protect the safety of their reporter with “the Times’s illegal exposure of the NSA terrorist eavesdropping program in December 2005, as well as its exposure of the Treasury Department’s terrorist-finance tracking program in June 2006. Whereas the reporting of Rohde’s apprehension may have endangered his life, the disclosure of the NSA terrorist eavesdropping and terrorist finance tracking programs only threatened the security of the United States.”

First, the assertion that what the NYT did in publishing classified information was “illegal” is quite dubious for reasons I explained in my January 2006 post “Can NYT Be Prosecuted for Publishing Classified Info?” (itself a response to an article by Johnson).  See also my related post “Leaks, Whistleblowers, and Media Shield Laws.”

Further, while the juxtaposition had occurred to me as well, the cases are clearly different.  In the Rohde situation, there was clear and compelling reason to believe that a man’s life was in danger:

“From the early days of this ordeal, the prevailing view among David’s family, experts in kidnapping cases, officials of several governments and others we consulted was that going public could increase the danger to David and the other hostages,” said Bill Keller, the executive editor of The Times. “The kidnappers initially said as much. We decided to respect that advice, as we have in other kidnapping cases, and a number of other news organizations that learned of David’s plight have done the same. We are enormously grateful for their support.”

No such information existed with regard to the eavesdropping story.  What was put at risk was the secrecy of a government program, the legality of which is still being debated.  The “security of the United States” was put in danger only to the extent that 1) the program was effective and 2) the public knowledge that such a program existed undermined the program’s effectiveness.   Both of those are, at best, highly debatable.

While I may well have decided against publishing the story had I been the publisher of the NYT, I can certainly understand running it given the strong questions about the propriety of the program, including a seeming gross violation of the 4th Amendment rights of a wide swath of Americans.  Weighed against a highly questionable “national security” claim, that’s a pretty compelling reason to publish.   Otherwise, we’re left with a situation where the president is free to flout the law so long as he asserts a “national security” rationale and stamps a project Top Secret.

UPDATE: Marc Danziger weighs in with a much better point than Johnson’s.   Revisiting the old Mike Wallace thing about how he’d simply film a story of a American soldiers being ambushed rather than helping them because he’s not there as an American but only as a journalist, he muses,

And I can imagine how, when Rohde’s saw the uniforms of the US troops and knew that meant he was now safe, his heart must have lifted. And what’s wrong with that, of course is that he wants – as the Col. Connell suggests – to be able to claim sanctuary from his countrymen. Now I don’t know Rohde’s work, and I’m not going to claim that he’s remotely where Wallace claimed to be while sitting in the comfort of a videotaped seminar. But his institution is. And that’s a problem to me. Because it was US soldiers who gave Rohde’s sanctuary, not some mercenary force fighting in the name of the NY Times or international journalism.

The other problem is, if anything, more serious. And it is the simple fact that we are increasingly living in a society that plays by Ottoman rules; meaning that what the rules are depend – of course – on who you are. That’s not something we will survive for long, and simply put, it needs to be exposed and stamped out anywhere we see it.

So I’m glad that the NY Times and journalists could sit on an exciting story to help save one of their own. In the future, will they do this to save some random civilian, or some US soldier?

It’s an interesting question, indeed.

FILED UNDER: Law and the Courts, Media, , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. odograph says:

    Speaking of secrets:

    A confidential record of a meeting between President Bush and Tony Blair before the invasion of Iraq, outlining their intention to go to war without a second United Nations resolution, will be an explosive issue for the official inquiry into the UK’s role in toppling Saddam Hussein.

    The memo, written on 31 January 2003, almost two months before the invasion and seen by the Observer, confirms that as the two men became increasingly aware UN inspectors would fail to find weapons of mass destruction (WMD) they had to contemplate alternative scenarios that might trigger a second resolution legitimising military action.

    Did they choose a busy (Iran) news cycle to drop that one?

  2. This is one of those balancing acts. On the one hand, I don’t want people who have shown such a poor grasp of reality as the NYT editorial board to be making decisions about whether or not to release government secrets. On the other hand, I don’t want the government to be able to hide anything by simply labeling it a national security secret.

    The compromise is that the NYT can publish what they can find. The balance is that the public can choose to associate or not with the NYT. By the way, what is the NYT balance sheet looking like these days?

  3. Joe says:

    The whole “national security” excuse is getting to be a bit too handy these days.

  4. Eric Florack says:

    I seem to recall a certain cavalier attitude toward national security from the NYT a few years ago. Their reputation as a “lean left at all costs” paper was thus established, and since then such attitudes ahve becomes something of a routine with them, particualrly if they feel they can get political milage from it.

  5. Alex Knapp says:

    Ah yes, who cares if the Constitution is being violated as long as Big Brother is making sure we’re all safe?

  6. Ah yes, who cares if the Constitution is being violated as long as Big Brother is making sure we’re all safe?

    And we’re to trust, as John says, the NYT editorial board to make the ruling if the constitution is being violated, while they violate the law, themselves by printing the stuff?

    Yeah, THAT works, huh?

  7. Mike P says:

    Um, the Pentagon Papers were more than “a few years ago” for one and the nature of reporting and the avenues for disseminating information have greatly expanded during that time. You also seem to be proceeding from the assumption that the revealing the Pentagon Papers was the wrong thing to do, if I read you correctly.

    But as to the NSA story, you do recall that they sat on that for a year when the original story would have dropped just weeks before the ’04 election, right? If they really leaned as left as you seem to think, they would have dropped the bombshell right before election with the hopes that it would have dashed Bush’s reelection chances. Instead, they deferred to W.H. pressure to a degree that a lot of people still find questionable.

  8. Eric Florack says:

    Um, the Pentagon Papers were more than “a few years ago”

    For you, perhaps. Me, I lived through it.

    and the avenues for disseminating information have greatly expanded during that time

    …which makes the idea that the Times is still pushing this envelope all the more interesting, and frankly, alarming. It wuld be a much easier sell, convincing us that some sort of principle were being invoked here, were there more than just one publication with a well known political leaning, were involved.

    You also seem to be proceeding from the assumption that the revealing the Pentagon Papers was the wrong thing to do, if I read you correctly.

    Correct.

    Even assuming the violations of the constitution, (A questionable point of itself) two points make such release problematic.

    One, the idea I and John have already spoken to… that we seem bent on relying on the New York Times to make constitutional calls. On what basis of law, or reason do we allow such things to occur?

    And secondly, the law had to be broken on several levels to make that publication happen. The argument was made that the justification for such publication was the law of the land was being broken. Do we really propose to protect the law by breaking it?

  9. Ben says:

    Eric,
    No, I don’t want the NYT making a judgment as to whether a government action is constitutional or not. What I want them to do is publish everything they can find out about the government, period. Then the experts can look at it and determine the constitutionality. If something is truly vital to our national security, then no one in the government should feel a need to leak it to the Times. Every time the Times publishes something like this, its because someone leaked it to them. Why do you suppose they did that? Probably because someone in the know feels it was wrong or overstepped bounds.

    As to “breaking the law to protect it” argument, I would say yes, it is valid. The Constitution is the supreme law of the land, and all other US laws that are in conflict with it must give way. If it takes a bunch of screaming lefties breaking national secrets laws to point out when the Constitution has been urinated on by the Government, so be it.

  10. Eric Florack says:

    Then the experts can look at it and determine the constitutionality. If something is truly vital to our national security, then no one in the government should feel a need to leak it to the Times. Every time the Times publishes something like this, its because someone leaked it to them. Why do you suppose they did that?

    There are a large number of reasons, but I suppose one of the best answers I can give is to ask you to investigate the case of Kendall and Gwendolyn Myers, who were recruited from American academia by Fidel Castro’s intelligence service, and sold secrets to them for years.

    I’m willing to bet they thought theirs a moral decision, too. Are we to trust their judgements?

  11. Ben says:

    Eric, it really comes down to this. Why have a freedom of the press? What is its main purpose? What was the main purpose of this freedom being included in the BOR by the founders? I would put forth the contention (supported by Jefferson and several SCOTUS cases, including the NYT case regarding the Pentagon Papers) that its primary function is to report on all of the Government’s actions, particularly those that are even arguably harmful to our freedoms.

    When Jefferson said this at his second inauguration:
    “No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all avenues of the truth,” I don’t think he meant to add the caveat “except when the government is doing secret-type stuff involving the spying on American citizens”

  12. brainy435 says:

    “Otherwise, we’re left with a situation where the president is free to flout the law so long as he asserts a “national security” rationale and stamps a project Top Secret.”

    Ummm, yeah. Why wait for the legislative or judicial branches to exercise their constitutional powers of checks and balances after examining the facts when we can have the editors of the NYT weigh in on the legality of government operations based solely on their political agenda?

  13. Eric Florack says:

    Eric, it really comes down to this. Why have a freedom of the press?

    So, do you realy propose to hold the Meyers’ to a different standard than the press? Aren’t the press just citizens? (What are blogs, after all?)

    Let’s try this, it’ll be fun…

    What I want them to do is sell everything they can find out about the government, to the Cubans, period. Then the experts can look at it and determine the constitutionality of their actions after the fact.

    Explain to me in a legal sense how the wto cases are different, or could be made so.

  14. Patrick Henry says:

    To the NYT haters,

    Please point out the relevant text of the Constitution that allows the government to classify data.

    Thank you.

  15. Ben says:

    In what way is selling a secret to another nation similar to publishing info about that secret to the American public?

  16. sam says:

    Um, the Pentagon Papers were more than “a few years ago”

    For you, perhaps. Me, I lived through it

    What were you, about 10?

    FWIW, I went to Ellsberg’s press conference in Cambridge that he held on the release of the papers. It was in a hotel just off the Square (I think it’s now a Harvard living complex). There were two older women sitting in front of me, and I saw one turn to the other and say, “Oh, yes, he’s much better looking than Norman Mailer.”

  17. G.A.Phillips says:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

    Don’t see were it say you can aid the enemy in a time of war by giving away top secret information, but seeing you donnkalopes can’t understand the first 16 words, hell, who cares what you think.

    but then again please tell me,
    is separation of Church and state in this part or maybe the right to murder your extra children?

    It could be that I’m just not as smart as you guys and can’t understand ancient English…..

  18. An Interested Party says:

    So…the NYT publishing the Pentagon Papers and information on the NSA terrorist eavesdropping program is now the same thing as traitors selling secrets to the Cubans? Forget the moniker “Bithead”…try “Screwloose”…

    It could be that I’m just not as smart as you guys…

    That would be an accurate assessment…

  19. sam says:

    It could be that I’m just not as smart as you guys and can’t understand ancient English…..

    Most of us here struggle to understand GAEnglish, a dialect with which we’re not familiar.

  20. G.A.Phillips says:

    It’s Gbonics Gimprad, a dialect with which your not familiar, just like common sense, you don’t speak that very well at all……

    but then again please tell me,
    is separation of Church and state in this part or maybe the right to murder your extra children?

    Why don’t you try answering the question once in a while instead of using your inability to make a funny, but once again the feeble emotional attacks of humorless monkey worshipers….

    But you was on the right track…Like this…

    It could be that I’m just not as smart as you guys and can’t understand ancient English…..

    Exactly,It’s not just because your not as smart as us it’s because its not in the Constitution unless your as smart as us, you know prepared for life with a pure liberal education, other wise it will seem to you to be a lie, you have not had the proper training to understand that it’s the truth even though you can’t see it, trust me it’s there, you just don’t understand.

  21. Eric Florack says:

    In what way is selling a secret to another nation similar to publishing info about that secret to the American public?

    Do you really consider that those who call us enemy, are not consumers of our news media?

    What were you, about 10?

    15, actually, and already rabidly reading anything political I could get my hands on.

    There were two older women sitting in front of me, and I saw one turn to the other and say, “Oh, yes, he’s much better looking than Norman Mailer.”

    Heh. The alarming part there is those two voted. Ponder that for a moment.

    So…the NYT publishing the Pentagon Papers and information on the NSA terrorist eavesdropping program is now the same thing as traitors selling secrets to the Cubans?

    Explain to us how the law seperates the two. Be sure to use examples. Get the point, now?

  22. An Interested Party says:

    Explain to us how the law separates the two.

    How come no one from the NYT has been arrested for treason? Hmm…