“A Massive Media Deflection”: There Is No Scandal in Tracking Down Leaks
In the middle of the other “scandals,” i.e. Benghazi and the Internal Revenue Service, that the Obama Administration has to deal with – and which may change the general direction of politics in America at the next general election – there is also the Department of Justice going after the Associated Press in a criminal investigation into leaks of classified information.
The real “news” for us on this last one is that it is no scandal, even though the media are spinning it that way.
Why? Simple: They want to continue getting – from “leakers” inside government – classified information and then publishing it. To them, it’s just another “hot story,” while for the people actually involved in the situation, it may mean risking their lives or the failure of an operation that could jeopardize our national security. In short, it sells us all out.
This is also why, in our Constitutional form of government, there is absolutely no right or protection for anyone to publish national security information – and “anyone” includes the media and press. Not only that, let’s say that a classified document is stolen or taken from an authorized government facility and given to a reporter. In this situation, the government clearly has the right – and even the obligation – to investigate the disappearance of the document and retrieve it by any legal means. This includes getting warrants for telephone records, wiretaps and even carrying out physical searches. And this same logic applies in the digital world.
Is it “legal” for the Justice Department to go after the AP as part of a criminal investigation into the loss or unauthorized disclosure of classified information? Absolutely, and the suggestion of a “scandal” is a massive deflection by the media. Again, the First Amendment simply does not “allow” the publication of national security information – never has, never will.
For some international perspective: We may be the only democracy in the world not to have what is called an “official secrets act,” a law that makes it a crime to publish national security information. This explains why we rarely – if ever – see similar situations arise, for example, in Canada, the United Kingdom or most other European countries. In these countries, their media simply do not – under penalty of criminal law – publish their classified information, much less actively seek it out, as they do here.
Do we need such a law here? Again, it is simply impossible to get an objective discussion of this question because of the emotional “freedom of the press” arguments, which begin from the false premise that there is somehow a constitutional right to publish government secrets. There is no such “right.”
On the other hand, does the government classify way too much information and keep it classified way too long? Yes. However, this problem has been addressed and readdressed over the years by rules that limit the number of “classification authorities,” by periodic reviews of classified information and by limitations on the number of years information can be classified. Of course, because of the immense damage some information could cause if it were released, there have to be exceptions – but this is the very nature of national security related information.
Ultimately, it is the president, as commander in chief, who is responsible for establishing, protecting and eventually releasing this kind of information – not the media.
Accordingly, when I was bi-partisan General Counsel to the Senate Select Committee on Intelligence (SSCI), I drafted this rather innocuous provision for inclusion in the fiscal 2001 Intelligence Authorization Act:
Whoever, being an officer or employee of the United States, a former or retired officer or employee of the United States, any other person with authorized access to classified information, or any other person formerly with authorized access to classified information, knowingly and willfully discloses, or attempts to disclose, any classified information acquired as a result of such person’s authorized access to classified information to a person (other than an officer or employee of the United States) who is not authorized access to such classified information, knowing that the person is not authorized access to such classified information, shall be fined under this title, imprisoned not more than three years, or both.
Was there “method to my madness”? Sure, however, it was also surprisingly easy for me to get bipartisan agreement to the language in both Houses of Congress – and also agreement from the White House in a “SAP,” a “Statement of Administration Policy.” And, after all, who could possibly disagree with it? It was “motherhood and apple pie,” as they say in Washington. I held my breath.
Then some media lobbyist must have actually read the legislation and the whole media industry came unglued and went to “general quarters” to defeat actual enactment of the law. So, notwithstanding that the law had already passed both Houses of Congress with bipartisan support, they got to Bill Clinton with an enormous and personal effort: And, Clinton vetoed the law in his final days as president.
At least the Washington Post – one of the world class publishers in this country, along with the New York Times, of leaked U.S. classified information – showed its “true colors” in this vapid editorial about the legislation:
“We don’t pretend to be neutral on this subject. Newspapers publish leaked material; our reporters solicit leaks. And some of the leaked material we publish is classified. But it is a mistake to imagine that all leaks of classified information are bad.” Editorial, The Washington Post, Aug. 24, 2001
I don’t know about you, but I don’t want any newspaper editor deciding whether to declassify presumptively sensitive national security information – they simply have no business doing it, regardless of how “hot” the story is or how well connected their “leaker” source is.
Hopefully, it’s this sad fact of political life in Washington that has the Obama Administration actively going after classified “leakers” – more than any administration has ever done. But far more effective would be some form of an “official secrets act” to better protect our nation.
Stated simply: It should be against the law to publish national security secrets – the First Amendment does not protect such irresponsible “journalism,” no matter how salacious the story might be. And, in this respect, we should be no different than our Canadian or British friends – no one there dares publish their national security secrets and no one here should dare publish ours.
By: Daniel J. Gallington, U. S. News and World Report, May 20, 2013
“Reporters Aren’t Above The Law”: The Media Shouldn’t Have Freer Speech Or Special Immunities From Investigation
Secret government investigations into speech protected by the First Amendment should alarm all of us. But we all have the same First Amendment rights; reporters don’t have freer speech. And giving reporters a special privilege to withhold evidence too often leads to lazy reporting in which nameless “official sources” get to make false accusations against innocent people without any accountability for either the government or the press. Instead of lobbying for a special privilege, reporters should consistently fight for more liberty for all Americans, including greater freedom of speech and greater freedom from unreasonable searches and seizures.
The Associated Press is understandably outraged that the government used secret subpoenas to get phone records that might reveal who leaked classified information to the news wire. But the real problem is not that the government is investigating the AP; it is that the government is investigating speech about government operations. That would be just as troubling if the targets were non-journalists.
The government claims the AP’s reporting contained classified information, but that’s hard to avoid when so much of what the government does is classified. The temptation to overclassify and underdisclose must be very powerful; each administration promises greater transparency, yet each turns out to be worse than the last. That frustrates the control we’re supposed to have over our government.
Media companies think the answer is to give their employees special immunities from investigation. But reporters aren’t always right, either. Sometimes they team up with government leakers to wreck the lives of innocent men and women whom the leakers want to disparage publicly, like Steven Hatfill, Wen Ho Lee or Richard Jewell. When that happens, the victims have rights too. Reporters (like everyone else) have a duty to provide the evidence necessary to do justice. No one should be above the law.
A better answer is to tighten the rules for when government can act in secret and provide more protections for whistleblowers. That gives us the benefit of more public discourse about public policy without giving the press a license to smear.
Our government does too many things in the dark, and the press is often at its best when it shines a light on previously unknown programs or policies that we ought to debate publicly. We need laws that help the press shine a light on government actions, not laws that permit reporters to join government officials in the shadows.
By: Mark Grannis, Debate Club, U. S. News and World Report, May 16, 2013
Rep Peter King’s “Mockumentary”: Investigation Into Bin Laden Movie Is About 2012
The 2012 campaign is now in full force. And it’s not because there have been several GOP primary debates, or that a Republican candidate has already dropped out of the race, or even because President Obama has interrupted his can’t-we-all-act-like-adults bit to criticize Congress.
It’s because a congressman has called for an investigation into a Hollywood movie.
Kathryn Bigelow and Mark Boal, the director and screenwriter who made the Academy Award-winning film The Hurt Locker, are now at work on a movie about Osama bin Laden. This is not only understandable but predictable. Hollywood is in business to make money, and while Bigelow and Boal are surely many levels above the filmmakers who produce movies with men acting like frat boys and grown women paralyzed by inexplicable insecurity, this movie will certainly draw a crowd. But what House Homeland Security Committee Chairman Peter King worries about is that the Obama administration is providing the filmmakers with classified information to help them make the film.
White House spokesman Jay Carney dismissed the concerns as “ridiculous,” and while we can’t know for sure, it does seem a little silly. The military operation itself required intense secrecy and protection of classified information to be successful. Why release classified information now? And why would the filmmakers need classified information? We know how it started, and we know how it ended—with bin Laden shot by a U.S. Navy SEAL. That’s a pretty good movie right there, and one Americans exhausted by the toll of two wars and a recession will likely flock to see.
The real question here is not whether classified information is being given to Hollywood, but whether King’s genuine concern is timing. The movie is set to be released before the 2012 elections, arguably giving the embattled president a public relations boost right when he may need one. But does a movie make the difference? It’s unthinkable that the Obama campaign will not remind people of the huge military success of killing the most hated man in America; they don’t need Hollywood to do it. There may well be many films whose sourcing and facts are suspect—those would be the mockumentaries undoubtedly being created under the loose campaign finance rules in place since the Citizens United case was decided by the U.S. Supreme Court. Now, that’s something worth a congressional investigation.
By: Susan Milligan, U. S. News and World Report, August 16, 2011
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