By Robert G. Kaiser
Sunday, June 11, 2006
Why does The Washington Post willingly publish "classified" information affecting national security? Should Post journalists and others who reveal the government's secrets be subject to criminal prosecution for doing so? These questions, raised with new urgency of late, deserve careful answers.
There's a reason why we're hearing these questions now. We live in tense times. The country is anxious about war and terrorism. Washington is more sharply divided along ideological lines than at any time since I came to work at The Post in 1963. The Bush administration has unabashedly sought to enhance the powers of the executive branch as it wages what it calls a "war on terror," many of whose components are classified secrets.
These are new circumstances, but to a reporter who has been watching the contest between press and government for four decades, what isn't new here seems more significant than what is. What isn't new is a government trying to hide its activities from the public, and a press trying to find out what is being hidden.
Thanks to resourceful reporters, we have learned a great deal about the war that the administration apparently never intended to reveal: that the CIA never could assure the White House that Saddam Hussein's Iraq actually had weapons of mass destruction; that U.S. forces egregiously abused prisoners at Abu Ghraib; that the United States had a policy of rendering terrorism suspects to countries such as Egypt and Jordan where torture is commonplace; that the United States established secret prisons in Eastern Europe for terrorism suspects; that the National Security Agency was eavesdropping without warrants on the phone calls of countless Americans, as well as keeping track of whom Americans called from home and work.
You may have been shocked by these revelations, or not at all disturbed by them, but would you have preferred not to know them at all? If a war is being waged in America's name, shouldn't Americans understand how it is being waged?
Secrecy and security are not the same. On this point, Exhibit A for journalists here at The Post is the 1971 Pentagon Papers case. The Pentagon Papers were a top-secret history of the Vietnam War written inside the Pentagon and leaked to the New York Times and then The Post. Top-secret means a document is so sensitive that its revelation could cause "exceptionally grave damage to the national security." The Nixon administration was in power, and it went to court to block publication on grounds that revealing this history would endanger the nation. A court in New York enjoined the two papers from publishing the information for several days.
But the Supreme Court decided, 6 to 3, that the government had failed to make a case that overrode the constitutional bias in favor of publication. The man who argued the case was Solicitor General Erwin N. Griswold. Eighteen years later, Griswold wrote a confession for the op-ed page of this newspaper: "I have never seen any trace of a threat to the national security from the publication [of the Papers]. Indeed, I have never seen it even suggested that there was such an actual threat."
There have been many more. In 1986, William Casey, then the director of central intelligence, threatened The Post with legal action if we disclosed an intelligence-gathering operation code-named Ivy Bells. "There's no way you can run that story without endangering the national security," Casey ominously warned Ben Bradlee, The Post's executive editor at the time.
But it turned out that when Casey issued this warning, the Soviet Union had already learned about Ivy Bells from its spy Ronald Pelton; because of Pelton, the Soviets had captured the hardware that had allowed the United States to listen to Soviet naval communications. So in reality we proposed to publish old news. But Casey had intimidated us; even after learning that the Soviets knew the secret, we equivocated for weeks. Finally, NBC News scooped us on our own story, then we published our version. As the editor supervising preparation of the story, I was humiliated; I also learned a good lesson.
Another aspect of our experience colors our reactions to various officials' complaints about our reporting on classified information. If you relied on the public comments of members of Congress or the example of the Pentagon Papers, you might conclude that we get these stories simply because some disgruntled employee decides to "leak" them to us. In fact, this is a rare occurrence.
The image of the rogue leaker was promoted again this spring when the CIA fired a senior officer named Mary McCarthy while anonymous official sources passed the word that she had been a source of Post reporter Dana Priest's Pulitzer Prize-winning scoop disclosing secret CIA prisons in Eastern Europe. McCarthy's lawyer has flatly denied this, saying she never knew about the prisons before Priest published her article.
I am not going to disclose Priest's sources (I don't know who they were), but I do know there were many of them. I know that she traveled extensively to report the story. I know that her article, like virtually all the best investigative reporting on sensitive subjects that we publish, was assembled like a Lego skyscraper, brick by brick. Often the sources who help reporters with this difficult task don't even realize that they have contributed a brick or two to the construction. Typically, many of the sources who contribute know only a sliver of the story themselves. A good reporter such as Priest can spend weeks or months on a single story, looking for those bricks.
I want to add, immodestly, that The Post's record on stories of this kind is good. I don't know of a single case when the paper had to retract or correct an important story containing classified information. Nor do I know of a case when we compromised a secret government program, or put someone's life in danger, or gave an enemy significant assistance.
These are the criteria we generally use when evaluating a report based on classified information. Editors here spend long hours on these stories. We never rush them into print; our lawyers usually read them along with editors.
We publish news we think is important, which is usually easy to recognize. We always ask the administration of the day to comment on sensitive stories, knowing that we may be inviting efforts to dissuade us from publication. This happened in the case of Priest's story on the secret prisons. The Bush administration asked Leonard Downie Jr., our executive editor, not to mention the names of the countries in which these prisons were located, on grounds that naming them could disrupt important intelligence relationships. He agreed, in part because "naming the countries wasn't necessary for American readers," he said later.
But Downie rejected the suggestion that he kill the story altogether. "It raised important issues for American voters about how their country was treating prisoners, and it raised significant civil liberties issues," he said. Journalists are inclined to publish what we learn -- that's our job.
But we don't assert that the government has no right to keep secrets. On the contrary, we have probably helped the government keep secrets more often than we should have. But we exercise common sense, and seek guidance from knowledgeable people when we're uncertain. We avoid the gratuitous revelation of secrets. If we learn next week that the United States has found Osama bin Laden's hiding place, you are unlikely to read a story about it here before the government takes some action.
The American experiment is an experiment in self -government. The Founders established Americans' right to govern themselves. Abuse of government power was their abiding concern. The Founders saw a free press as a tool to control the abuse of power, which is why they gave the press special protection in the First Amendment to the Constitution: "Congress shall make no law . . . abridging the freedom . . . of the press."
The history of the First Amendment makes clear why the Founders embraced it. Consider, for example, an early draft of the journalist's favorite provision offered to the Constitutional Convention by James Madison: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."
Information is the bulwark Madison had in mind. The people had to know what the government was doing in their name to be able to respond like good citizens. Accountability is only possible when citizens, including members of Congress, know what is going on. None of us has ever been held accountable for an act no one knew we committed.
Self-government and self-defense are two values that don't always coexist easily -- they have to be balanced. But balance is the Founders' greatest gift. They gave us three branches of government to prevent any one from getting an upper hand. And they gave us a free press, a completely independent observer to keep the people informed about the doings of the other three.
Once we understand the need for balance, it follows logically that no single authority should be able to decide what information should reach the public. Some readers ask us why the president's decisions on how best to protect the nation shouldn't govern us, and specifically our choices of what to publish. The answer is that in the American system of checks and balances, the president cannot be allowed to decide what the voters need to know to hold him accountable. A king may have such power, but the elected executive of a republic cannot, or we will have no more republic.
Labeling something "classified" or important to "national security" does not make it so. The government overclassifies with abandon. And the definition of "national security" is elusive. Some politicians act as though revealing any classified information threatens our nation's security, but that seems preposterous.
The Bush administration has been publicly toying with the idea of using the Espionage Act, passed by Congress in 1917 when the country was swept up in an emotional response to our entry into World War I, to prosecute journalists for disclosing classified information. The legislative history of the act convinces me that its authors never intended for it to be used to censor the press, and since World War I it has never been used for that purpose. Numerous legal scholars from right to left say that doing so would violate the First Amendment. But Attorney General Alberto R. Gonzales said recently that invoking the Espionage Act against the press "is a possibility."
I heard Gonzales's remark as an attempt at intimidation. Intimidation by classification already seems to be a hallmark of this administration, which has created classified secrets at an unprecedented pace -- 14 million in fiscal 2005, compared with 8 million in 2001, according to the National Archives. The Bush administration has encouraged the use of more than 60 new categories ("sensitive but unclassified," for example) to control the distribution of millions more facts and documents.
Steven Aftergood, who works on classification issues for the Federation of American Scientists, calls the administration's approach to secrets "a cultivation of fear as a policy driver." He adds: "We are being told that nothing is more important than the external threat that confronts us, and nothing is more valuable than security in the face of that threat." Aftergood calls this "craven, and an insult to the millions of Americans who have given their lives to defend this country."
For the Founders, the issue was freedom and how best to secure it. Addressing that point in his Pentagon Papers opinion, Justice Hugo Black captured the spirit that animates my profession in just two sentences:
"The government's power to censor the press was abolished [by the First Amendment] so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people."
Robert G. Kaiser is an associate editor of
The Washington Post. He served as the paper's managing editor from 1991 to 1998.