Beyond 'Trust Us'
The Bush administration's press-bashing campaign may be good election-year politics, but it is adding a poisonous new element to the national security debate at the very time the administration ought to be trying to rebuild a bipartisan consensus.
The administration has a chance now to build a firm legal foundation for its anti-terrorism programs. That opportunity arises because the emergency structure for surveillance, interrogation, imprisonment and trial of suspected al-Qaeda terrorists has come crashing down. The Supreme Court's decision last week in the Hamdan case completed the collapse of the temporary post-Sept. 11 system. The administration should be working carefully with Congress to build a permanent legal framework -- rather than using anti-terrorist agitprop against the New York Times in an effort to patch together the old scaffolding.
The government needs a new legal structure partly to help keep its secrets. "Trust us" is not a winning argument in America -- either with newspaper editors or the public at large. Trust in government is earned by a pattern of trustworthy action, not by secrecy, evasion and partisan division. And the best way to rebuild lost trust is informed public debate.
It's easy to forget in wartime that the United States was built on a profound mistrust of authority. That vein of skepticism was expressed eloquently by James Madison in Federalist No. 10. Simply because the air of liberty can nourish a dangerous fire, he argued, that is no reason to cut off the air supply. That remedy would be "worse than the disease." A modern example of this insistence on the primacy of liberty was the Supreme Court's decision to allow publication of the Pentagon Papers during the Vietnam War -- even though the justices had received a secret government brief arguing that publication would blow CIA operatives' cover and communications secrets.
As a reporter and editor, I have been wrestling with different versions of the national security conundrum for nearly three decades. Sometimes, my colleagues and I were convinced by government arguments against publication; in other cases we found the arguments weak and decided to publish. I still remember a former director of the National Security Agency screaming at me very early one morning because I had published a story that was based on communications intelligence about the ties of President Jimmy Carter's brother Billy with the Libyan government.
We journalists usually try to argue that we have carefully weighed the pros and cons and believe that the public benefit of disclosure outweighs any potential harm. The problem is that we aren't fully qualified to make those judgments. We make the best decisions we can, but they are based on limited knowledge. That said, I agree with New York Times Executive Editor Bill Keller that the public did benefit from the Times' disclosures about NSA and Treasury surveillance, though it's impossible to know at what cost.
Journalists are on shakier ground when we contend that it's okay to publish details about NSA or Treasury surveillance because the enemy already knows we're trying to snoop on their phone calls, e-mails or wire transfers. That argument misses a big point. The damage of disclosure isn't just that it will tip off the terrorists, but that it will embarrass or otherwise jeopardize those helping to stop the terrorists, be they foreign governments or private companies.
Here we get to the heart of the Bush administration's problem as it seeks to reconstruct effective anti-terrorism policies. To do so, it will need a framework that has broad public acceptance -- so that those who decide to help the United States can be reasonably confident that they won't face a legal or political backlash. If you were the chief executive of a phone company or a commercial bank, it would be tougher to make that argument to your board today than a year ago.
"Those who have to connect the wires and push the buttons are not owned by the government," explains Jamie Gorelick, a former deputy attorney general and member of the Sept. 11 commission. "If they don't trust the system to operate in a bipartisan manner so that it's safe to implement what appears to be a valid government request, then we'll all be a lot less safe."
So how to rebuild trust about intelligence, and the sense of shared responsibility that flows from it? Republicans may pick up votes by berating the New York Times. And the administration may even be tempted to bring a criminal case to enforce the rules against leaking or publishing communications secrets. But those politically divisive steps won't give anti-terrorism programs the broader legal foundation they need, and in that sense, they won't make the country any safer.