“We’re All Journalists Now”: No, Glenn Greenwald Cannot Be The One Who Decides What Stays Secret
This Sunday, The New York Times Book Review will finally print Michael Kinsley’s review of Glenn Greenwald’s No Place to Hide, two and a half weeks after the review was published online and provoked a polarizing debate involving Greenwald, the Times‘ Public Editor Margaret Sullivan, Kinsley again, and countless commentators who promptly took sides in the dispute about government secrecy and freedom of the press.
Some readers, including Sullivan, objected to Kinsley’s smart-alecky tone and psychological sketches of Greenwald, Edward Snowden, and Julian Assange, which these critics saw as bordering on ad hominem attacks. But there were also more substantive criticisms levied by Sullivan and many others, most of them boiling down to the claim that it was simply outrageous of Kinsley to deny journalists an absolute right to print classified material passed on to them by leakers.
Here is the most controversial passage from the review:
It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald. [The New York Times]
Some objected to this passage because they thought it contradicted another line of the review in which Kinsley called the Snowden leaks a “legitimate scoop.” But for most critics, the issue was far more fundamental: How dare anyone suggest, and in the pages of America’s newspaper of record no less, that the government, and not an intrepid journalist like Glenn Greenwald, should get to decide, while wielding threats of prosecution and imprisonment, what information is secret and what is not?
Clearly, the critics implied, Kinsley was expressing a deep-seated sympathy for authoritarianism that no self-respecting American citizen, let alone a journalist professionally and existentially devoted to the press freedoms enshrined in the First Amendment, could possibly endorse.
There’s just one problem with this objection: Kinsley was almost certainly correct.
In the ensuing debate about the review, The Atlantic‘s Conor Friedersdorf made the strongest and most concise case against Kinsley’s position. When we look at the competing track records of the government and journalists in deciding what should be kept secret and what should be made public, Friedersdorf argued, it is clear that journalists have done a far better job. For that reason, journalists, and not the government, should get to decide.
Friedersdorf also made a point of stipulating that this does not imply blanket permission for leakers to divulge to journalists any information they wish. In Friedersdorf’s words, “The least-bad system is one where leakers can be charged and punished for giving classified secrets to journalists (which isn’t to say that they always should be), but where journalism based on classified information is not criminalized.”
That sounds like a perfectly reasonable compromise — at least until you think it through.
Permitting journalists to publish anything and everything that gets leaked to them, under no possible threat of prosecution, would make it nearly impossible to prosecute a leaker, since the harmlessness of the leak would automatically be demonstrated the moment a journalist makes the decision to publish the classified information. After all, in Friedersdorf’s least-bad system, it’s journalists who decide what can and can’t be made public, based in part on their assessment of the likely public harm. This means that as soon as classified information gets published by a journalist, the leaker would instantly be exonerated.
To which many will no doubt respond: So what? That’s exactly how it should work!
Except for one additional consideration, which Kinsley raised in his original review. In the age of blogs, portable audio and video recording, instant messaging, and social media platforms, “it is impossible to distinguish between a professional journalist and anyone else who wants to publish his or her thoughts.”
We’re all journalists now.
In such a world, Friedersdorf’s rules produce a situation in which any leaker who leaks any information to anyone willing to publicize it is automatically absolved of any crime.
In such a world — a world completely lacking in disincentives to leak classified information — government secrecy would be rendered impossible.
“But no,” I imagine Friedersdorf objecting. “I mean real journalists, working for established, recognized media companies. Only they should be given the power to decide what to publish.”
To which the proper reply is to repeat Kinsley’s line that making such a call — deciding who is and who is not a “real” journalist — is impossible. Sure, we can agree that a journalist employed by The New York Times or The Atlantic is an authentic journalist entitled to make the hard calls on secrecy. But what about a reporter working for BuzzFeed? Or a reporter working for BuzzFeed six years ago, when it had little politics coverage and was known primarily for its cat-photo click-throughs?
And what about self-employed blogger Andrew Sullivan? Is he a journalist? If someone leaked classified information to him, should he have blanket authorization to decide whether to publish it?
What about someone who runs a blog with a tenth of Sullivan’s traffic and journalistic experience? A hundredth? A thousandth?
We seem to have a problem. Either anyone or everyone gets to make the call, rendering state secrets impossible, or we need some independent authority to decide who is and who is not empowered to make the call. Government licensing of journalists? That’s where Friedersdorf’s “least-bad system” leads us, I’m afraid.
Which means that Friedersdorf leads us right back to Kinsley: “Someone gets to decide, and that someone cannot be Glenn Greenwald.”
Pace Friedersdorf, the least-bad system is the one we have right now: Government (elected officials, appointees, and judges) deciding what gets and stays classified. In that system, both leaking and publishing classified information are treated as crimes, albeit crimes for which leakers and journalists are rarely punished, with the benefit of the doubt usually swinging in their favor.
This system isn’t perfect. Free speech absolutists don’t like it, and understandably so, because it makes government secrecy the legal principle and press freedom an exception dependent on the prudential judgment of prosecutors and judges.
But in a world where secrets are necessary, this may be the best that a democracy can do.
By: Damon Linker, The Week, June 6, 2014
“It’s The People Stupid”: The Way To Stop Corporate Lawbreaking Is To Prosecute The People Who Break The Law
Today General Motors announced that it has fired 15 employees and disciplined five others in the wake of an internal investigation into the company’s handling of defective ignition switches, which lead to at least 13 fatalities.
But who’s legally responsible when a big corporation breaks the law? The government thinks it’s the corporation itself.
Wrong.
“What GM did was break the law … They failed to meet their public safety obligations,” scolded Sec of Transportation Anthony Foxx a few weeks ago after imposing the largest possible penalty on the giant automaker.
Attorney General Eric Holder was even more adamant recently when he announced the guilty plea of giant bank Credit Suisse to criminal charges for aiding rich Americans avoid paying taxes. “This case shows that no financial institution, no matter its size or global reach, is above the law.”
Tough words. But they rest on a bizarre premise. GM didn’t break the law, and Credit Suisse never acted above it. Corporations don’t do things. People do.
For a decade GM had been receiving complaints about the ignition switch but chose to do nothing. Who was at fault? Look toward the top. David Friedman, acting head of the National Highway Traffic Safety Administration, says those aware of the problem had ranged from engineers “all the way up through executives.”
Credit Suisse employees followed a carefully-crafted plan, even sending private bankers to visit their American clients on tourist visas to avoid detection. According to the head of New York State’s Department of Financial Services, Credit Suisse’s crime was “decidedly not the result of the conduct of just a few bad apples.”
Yet in neither of these cases have any executives been charged with violating the law. No top guns are going to jail. No one is even being fired.
Instead, the government is imposing corporate fines. The logic is that since the corporation as whole benefited from these illegal acts, the corporation as a whole should pay.
But the logic is flawed. Such fines are often treated by corporations as costs of doing business. GM was fined $35 million. That’s peanuts to a hundred-billion-dollar corporation.
Credit Suisse was fined considerably more — $2.8 billion. But even this amount was shrugged off by financial markets. In fact, the bank’s shares rose the day the plea was announced – the only big financial institution to show gains that day. Its CEO even sounded upbeat: “Our discussions with clients have been very reassuring and we haven’t seen very many issues at all.” (Credit Suisse wasn’t even required to turn over its list of tax-avoiding clients.)
Fines have no deterrent value unless the amount of the penalty multiplied by the risk of being caught is greater than the profits earned by the illegal behavior. In reality, the penalty-risk calculus rarely comes close.
Even when it does, the people hurt aren’t the shareholders who profited years before when the crimes were committed. Most current shareholders weren’t even around then.
Calling a corporation a criminal is even more absurd. Credit Suisse pleaded guilty to criminal conduct. GM may also face a criminal indictment. But what does this mean? A corporation can’t be put behind bars.
To be sure, corporations can effectively be executed. In 2002, the giant accounting firm Arthur Andersen was found guilty of obstructing justice when certain partners destroyed records of the auditing work they did for Enron. As a result, Andersen’s clients abandoned it and the firm collapsed. (Andersen’s conviction was later overturned on appeal).
But here again, the wrong people are harmed. The vast majority of Andersen’s 28,000 employees had nothing to do with the wrongdoing yet they lost their jobs, while most of its senior partners slid easily into other accounting or consulting work.
The truth is, corporations aren’t people — despite what the Supreme Court says. Corporations don’t break laws; specific people do. In the cases of GM and Credit Suisse, the evidence points to executives at or near the top.
Conservatives are fond of talking about personal responsibility. But when it comes to white-collar crime, I haven’t heard them demand that individuals be prosecuted.
Yet the only way to deter giant corporations from harming the public is to go after people who cause the harm.
By: Robert Reich, The Robert Reich Blog, June 4, 2014
“Republicans Aren’t Pro-Life”: They’re Just Pro-Birth, And There’s A Big Difference
One of the main platforms of the Republicans is that, as a party, they say they are definitively pro-life. But if you really look closely at their stance on weapons, abortion, food stamps, global warming, minimum wage, veterans, prisons, etc… you have to wonder how they can make that claim.
AK47, military-style weapons and large magazine clips are part of the Republican chant. They claim it is their Second Amendment right to bear these arms, but even in Wyatt Earp’s Dodge City, outsiders were told to leave their guns at the city limits. Today Republicans, who are funded and graded by the NRA, want to have guns not only for self-protection, but also for showmanship. They believe it is their right to carry weapons everywhere including family restaurants, bars, classrooms and churches.
On average, three people are killed by a gun every hour and approximately seven are shot. How can anyone who says they are pro-life also be pro-weapon? If the Republican Party truly believes life is sacred, then why do they insist on unrestricted assault weapons — whose sole purpose is to kill — rather than reasonable gun regulations?
I also wonder how, on the one hand, a pro-life Republican demands that pregnant women have their unwanted children. Yet on the other hand, choose to cut food stamps that help feed these women and children. Did they ever consider the financial responsibilities involved in raising a child when they voted to close down small clinics that perform abortions and insurance coverage for birth control?
Currently, the Republicans are suggesting paying for summer lunches but only for rural kids, not urban ones. In other words, they want to provide food for the mostly rural white kids, but not provide food for the mainly minority, inner-city kids. How do these actions match their pro-life philosophy?
If you are pro-life, I would bet that you would vote for the right to breathe… but, a breath free of pollution is becoming more and more difficult these days. Republicans, like Florida’s Marco Rubio, continue to deny man’s role in climate change and denounce any scientific evidence. Is this really a pro-life stance when the impact to our children and grandchildren will be devastating?
The Republicans boast pro-life but also oppose raising the minimum wage from $7.25 an hour to a living income. If they are really for life, then why would they be against paying a living wage that makes it possible for people who work to put food on their table? Not only is voting for the increase in minimum wage the right decision, but it also makes good business sense. Henry Ford, a leading businessman of his time, understood if he didn’t pay his workers enough to buy his product, then he wouldn’t prosper; today’s Republicans like Paul Ryan and Ted Cruz obviously believe otherwise.
Something else to ponder is when you vote for war, but against taking care of the wounded warriors, is that really being pro-life? Sending men and women into battle seems to be easy for Republicans, yet only two Republicans, Sens. Dean Heller and Jerry Moran, voted for a bill that would improve veterans’ healthcare and other benefits.
Republican state governors like Idaho’s Butch Otter and Virginia’s Bob McDonnell don’t want to expand Medicaid, even though it is virtually free to them. Without the federal funds, fewer people can receive healthcare, and many will die. Doesn’t sound much like a pro-life stance to me.
The Republican House voted more than 50 times to repeal the ACA yet kept their government funded healthcare. How can they say no to improved healthcare for our war heroes, but accept it for themselves? Do they only believe in pro-life when it’s opportune?
When it comes to the death penalty, the same Republicans stating they are pro-life don’t seem to think twice about having someone put to death in their state — even though many of the accused people who were once on death row have been exonerated. Texas Governor Rick Perry brags about the number of executions that have taken place under his governorship. Do they understand that even if the person is guilty, they are taking someone’s life?
Republicans aren’t pro-life. They are just pro-birth. And there’s a big difference between the two.
By: Gerry Myers, CEO, President and Co-Founder of Advisory Link; The Huffington Post Blog, June 4, 2014
“Please Make Up Your Mind”: The Wall Street Journal Can’t Decide Why Obama Is Terrible
On Wednesday, the Wall Street Journal editorial board found an unusual way to criticize Barack Obama for his new limits on carbon emissions: the action, the paper declared, showed that he was too principled and insufficiently attuned to short-term political benefits.
One consequence of President Obama’s new anticarbon energy rule will be to create what economists call “stranded assets,” in this case still useful fossil-fuel plants that are suddenly made noneconomic. This is part of the plan. But if this grand design ultimately fails, it will be because Mr. Obama is also creating stranded Democrats from energy-producing states.
This will have far-reaching implications, especially for Democrats in energy-rich states and especially this year. Twenty years ago, Bill Clinton would never have dreamed of rolling out this EPA regulation five months before an election. Mr. Obama is willing to risk it now because his second term is winding down and he wants to put in place as a much of a legacy as he can…
As Jonathan Chait has noted, it’s rich indeed for the Journal, which savaged Bill Clinton to such an extent that it collected its editorials attacking him into a five-volume collector set, to now be praising him in hindsight for being more politically expedient and partisan-minded than his Democratic successor. But it gets better than that. Today—just one day later—the Journal completely flipped its critique of Obama. His problem, you see, is that he is too fixated on domestic politics, as his handling of Bowe Bergdahl’s release shows:
President Obama’s decision to swap five Taliban killers for the return of Sgt. Bowe Bergdahl has morphed from a debatable policy decision into the Administration’s latest political fiasco. There’s a lesson here about the risks of spin and narrow political calculation, especially in foreign policy when American lives are stake…
The larger problem is that Mr. Obama treats all of foreign policy as if it’s merely part of his domestic political calculus. It’s all too easy to imagine him figuring that if he announced the withdrawal of all troops from Afghanistan by 2016 as he did last week, he could then more easily sell the prisoner swap, which would then help empty Guantanamo so he could fulfill that campaign promise too. Is it too much to ask that, in his final two and half years in office, the President act as if more is at stake in foreign policy than his domestic approval rating?
I read the Journal’s editorials every day, and have for years. I find them a handy way to track conservative opinion—hard-edged, no doubt, but generally also well-wrought (better-wrought, it must be admitted, than their counterparts at the New York Times.) But really, the Journal is not doing its regular readers a service here. We’re awfully confused: is Obama recklessly disregarding domestic politics to cement his legacy with grand edicts, or making hasty decisions purely for domestic political gain? Please make up your mind.
By: Alec MacGinnis, The New Republic, June 5, 2014
“Enter Oliver North”: The GOP’s Bergdahl Backlash Has Slipped Into Farce
If you were to think of the person least qualified to criticize the Bowe Bergdahl prisoner swap, it would have to be someone who oversaw an even more controversial prisoner exchange. Throw in an illegal weapons sale, multiple felony charges, and bingo, you’ve got a guy with basically zero credibility to throw stones on this issue.
Enter Oliver North.
Yes, the former Reagan aide best known for his role in the Iran-Contra affair is miffed about the Bergdahl deal. North exhibited a complete absence of self-awareness Tuesday by baldly insisting, without evidence, that the Obama administration or one of its allies paid a hefty price to grease the deal.
“Someone paid a ransom,” he told Newsmax, estimating that it was probably around $5 million or $6 million.
“And if a ransom was paid, either at our behest or with American tax dollars,” he later told Fox News’ Sean Hannity, “it means this government is causing to be funded a criminal enterprise that kills Americans.”
North even had the gall to boast that he was uniquely qualified to discuss the brouhaha because he knows “a lot about hostage negotiations.”
Indeed, he does. North and other Reagan officials orchestrated illegal arms sales to Iran to rescue American prisoners, and then used the proceeds to finance a secret war in Central America. North was convicted of multiple felonies, though an appeals court later reversed the rulings.
So yes, it’s safe to say North knows a thing or two about hostage negotiations.
North’s foray into the debate would be merely laughable if it weren’t part of the GOP’s larger pattern of gleeful political opportunism on the issue.
Sen. John McCain (R-Ariz.) — himself a former POW freed in a mass prisoner exchange — called the swap a “mistake.” Months earlier, he said he was “inclined to support” such a deal. Other Republican lawmakers who’d previously called for Bergdahl’s release have suddenly changed their tune as well. Some even deleted from digital media their praise for the administration’s handling of the situation.
Meanwhile, a GOP strategist raced to line up critics of Bergdahl who served with him, an act that smacked of swiftboating. And the National Republican Campaign Committee, perhaps predictably, has already begun using the scuttlebutt to fundraise for the party.
To be sure, there are several legitimate questions that can be asked about the swap. Perhaps most significantly is the concern raised by many lawmakers, including some Democrats, that the administration did not properly keep Congress abreast of the negotiations.
But we’ve seen the GOP go down this path too many times before, seizing on every scandal, manufactured or not, to paint the administration as untrustworthy, lawless, and basically evil. It is the latest #Benghazi for the GOP to flog mindlessly and endlessly in hopes of somehow alchemizing campaign gold from their outrage.
Rather than focusing on whether Bergdahl deserted his troops, or whether the Taliban prisoners handed over were too dangerous to set free, the GOP has instead focused the bulk of its energy on re-upping the exaggerated portrait of Obama as a reckless, incompetent “emperor” who needs to be impeached.
Trotting out Oliver North of all people to tsk-tsk the administration moved the backlash from over-the-top whinging to outright farce, and revealed for the umpteenth time that there’s no bottom the GOP won’t scrape.
By: Jon Terbush, The Week, June6, 2014
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