Freedom of the press vs. rule of law.

[shirenomad]

I've been hearing a lot about the New York Times disclosure of that treasury program. I was concerned about freedom of the press and all that. So I dug up the original article myself. Go ahead, read it. I'll wait.

Done? Good. Now point out where in that article the Times so much as suggested that a law had actually been broken.

You can't find it, can you? There's just comments that this program could be used to break the law if abused.

If I buy a cutlery set, I could abuse it by stabbing someone. This does not mean I will, and until one of those knives is located with blood on it, it is not the business of the New York Times that I made the purchase. If KFC reports their chicken is perfectly healthy, they could be lying through their teeth. But unless the New York Times has some sort of evidence that Original Recipe is cancer-causing, they can't publish the list of herbs and spices without being sued for everything they're worth.

There are any number of law enforcement regulations that could be abused, whether they be at the local police level or at the level of national security. Some are, and when that abuse happens, you'd better believe the New York Times has a right to report it. But there's no evidence of abuse here; the Times admitted as much. They just think that there might possibly be abuse at some point in the future.

Now let's talk about the term "Classified." That means that information is determined as not in the public's right to know about. Giving classified information to the public is illegal and carries harsh penalties.

If the New York Times had put forth evidence of actual abuse -- even one incident! -- I'd argue that yeah, that could be something worth publishing, classified or no. I support whistleblowing when it's warranted; you shouldn't be able to hide the blatantly illegal behind "Classified" or "Confidential" or "Trade Secret" or whatever. But there isn't anything illegal. The Times doesn't claim there is -- just vague implications of "concern" over the potential for it. The article even admitted that safeguard after safeguard was in place to make abuse of the system very difficult.

Given that, why did the New York Times think this was worth violating confidentiality to report? For that, read the letter that the editor, Bill Keller, published as a follow-up (linked from the main article), which can be summed up as "Well, some people think we violated the law, but we listened to the arguments for why the information was classified, and we personally decided those arguments weren't good enough, because this was news." Apparently Keller thinks that something about his job makes declassification his call to make. "It's my right to publish whatever I want, so long as I personally say it's newsworthy. I am above the laws that govern others; I am the press."

Yes, there's freedom of press in the Constitution, but if I publish confidential information from my company on this journal for the hell of it, I get fired. If I stumble across the flight plan of the president and I put it up here, the Secret Service comes knocking on my door and with good reason. And if I put up Bill Keller's personal and unlisted phone number, he's within his rights to sue me for harassment over any resulting threatening calls, no matter how much I claim the public had a right to know how to reach him. Because there are things the public does not have the right to know, and I do not have the absolute and unchecked right to override which items fall under that list. Neither does the editor of the New York Times.

Comments

[surgo.livejournal.com]

If I buy a cutlery set, I could abuse it by stabbing someone.

While this is certainly true, and an example I use in spades when it comes to things like this, I generally find it better to put less trust in the government and assume the worst rather than the best. Again, differing opinion, but that's my take.

[jpathomas.livejournal.com]

I'm in total agreement. I think that a free press plays an important role in democracy, but I don't believe that simply being a member of the press or the publisher/editor of a newspaper gives one the right to publish whatever one wants.

I've been asking myself one question since this story broke; Who elected the New York Times as their representive in government? I did not vote for the Times (NY or LA), the Mecury News, NPR News, or any other news orgnization. All of these businesses have their own agenda, and that agenda is not "unbiased" or "objective."

[surgo.livejournal.com]

I can't log in; was the information actually classified? If not, I see no reason why it shouldn't be published. Citizens have a right to know what their government is doing.

[shirenomad]

The entire program is indeed classified (first page of the article, 12th paragraph, and again on the second page, seventh paragraph).

(Try bugmenot.com to log in.)

[alaster.livejournal.com]

While I certainly agree that the press as an aggragate entity (and likewise the NYT specifically) has shown little to no restraint or tact in reporting sensitive information, in this case I'm going to have to disagree with you.

Let's start with your analogies - they are, unfortunately, imperfect, and therefore misleading. If we are going to use an analogy for this program as a purchase, then it is a gun - a weapon, rather than a tool. It is going to be pointed at somebody in a offensive fashion, which brings it one step closer to "abuse" than a piece of cutlery. Likewise, KFC is a corporation - a public institution that is some ways similar to but ultimately extremely different from our subject - the US government.

Because we are talking about the government in an allegedly-democratic state, EVERYTHING it does is of public interest, because the public relies upon its knowledge of government action to make informed decisions in the voting booth. "Classified" does NOT mean that the public does not have a right to know - it means that the public's right to know has been temporarily overridden by a greater concern (usually national security). The term is almost always applied to information regarding EVENTS (which is to say, occurances or operations that occur over a relatively brief timespan) and NOT to long-running programs because such programs have an increased weight in regards to the public interest and therefore it is more difficult to justify their continued classification.

Now consider that not only is there the potential for abuse with this program (and that, indeed, is enough) but also that the legality of the program itself is considered questionable, and it becomes even more important that the public be aware of its existance.

In my opinion, the NYT did the right thing. That they broke the law in reporting classified info is moot. That doesn't mean they should avoid prosecution - actions have consequences, regardless of whether you are right or not, and actions where you avoid or ignore the consequences have diminished value. But as a moral factor, the legality is a non-issue - freedom of the press exists in our country because the primary role of the press is as a watchdog of government behavior. If they backed down because the government said "you can't do that" they would have little value in that role, First Amendment or not.

Of course, we don't live in a world of black-and-white - it's up to the press to show restraint at times, as well as be a watchdog. But the deciding factor here for me is that the revelation of this information is a valid action is that it places noone in immediate and tangible peril. One could argue that revealing an anti-terrorism program that relies on secrecy to be effective weakens our national security, and thus puts us all in peril. However, this is a weak argument as it is impossible to tie consequence to action - in the end, there's no way to justifiably say that 'X happened because of Y'. Likewise, the lifetime of anything that relies on secrecy is naturally limited, and the fact that some associated with the program were already questioning its continued existance pretty much puts the final nail in the coffin over how harmful its revelation is likely to be.

[shirenomad]

However, this is a weak argument as it is impossible to tie consequence to action - in the end, there's no way to justifiably say that 'X happened because of Y'.

The article itself admits that several enemy leaders have been caught unaware by the program, and their resources-in-transit seized. No, we don't know what they would have done had they not been caught, but I think it's fair to say things would be nastier for our side. From there it follows that we're going to miss out on some choice captures and fail to intercept large wads of cash being used in terrorist activity. (Intelligence is actually in the process of determining a damage assessment from the revelation of the program.)

The term is almost always applied to information regarding EVENTS (which is to say, occurances or operations that occur over a relatively brief timespan) and NOT to long-running programs because such programs have an increased weight in regards to the public interest and therefore it is more difficult to justify their continued classification.

During WWII, we broke the German's codes early and used that information in the ULTRA program to predict several of their submarine movements. ULTRA continued for the duration of the war and wasn't declassified until the 70s. Had a newspaper revealed the existence of the program, the Germans would have switched codes and their sub fleet would have been deadly again.

[westmarked.livejournal.com]

I find it ironic that you've been posting more on politics than me in the past six months or so ...

[shirenomad]

I get bored at work a lot. ;P

(Also, a lot of my flist encourages me to argue on political subjects by pre-emptively arguing back.)

[scribe-of-stars.livejournal.com]

A balance must be struck between the media and the government, methinks. Something of an agreement. The media won't reveal classified information, and the government will keep everything that doesn't need to be kept secret declassified. Disputes as to what "doesn't need to be kept secret" means can be carried out in private, where no one else can hear, between the papers and the government.

Oh, and those stupid leaks from government officials need to stop. The media might just be reporting what they hear, but the people they hear it from--who took an oath to faithfully execute their duty to the Federal government--are committing nothing short of treason.

[surgo.livejournal.com]

That's both far too idealistic, and an incredible security risk.

Disputes as to what "doesn't need to be kept secret" means can be carried out in private, where no one else can hear, between the papers and the government.

Where no one can hear...except for the people in the papers doing the dispute. Many times it's easier to get a job working for a paper than it is to get one working for the government. So now the people in the paper that you're arguing with know the classified information. These people could be spies, or just interested in leaking the information regardless of the outcome of the dispute.