Fit and Unfit to Print: What are the obligations of the press in wartime?

Wall Street Opinion Journal June 30, 2006

“Not everything is fit to print. There is to be regard for at least probable factual accuracy, for danger to innocent lives, for human decencies, and even, if cautiously, for nonpartisan considerations of the national interest.”

So wrote the great legal scholar, Alexander Bickel, about the duties of the press in his 1975 collection of essays “The Morality of Consent.” We like to re-read Bickel to get our Constitutional bearings, and he’s been especially useful since the New York Times decided last week to expose a major weapon in the U.S. arsenal against terror financing.

President Bush, among others, has since assailed the press for revealing the program, and the Times has responded by wrapping itself in the First Amendment, the public’s right to know and even The Wall Street Journal. We published a story on the same subject on the same day, and the Times has since claimed us as its ideological wingman. So allow us to explain what actually happened, putting this episode within the larger context of a newspaper’s obligations during wartime.

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12 thoughts on “Fit and Unfit to Print: What are the obligations of the press in wartime?”

  1. This baseless and partisan attack on the New York Times should be seen for what it is – an attack on the freedom of speech by a President seeking a despot’s power of prior restraint over the press.

    As Frank Rich writes;

    Only a terrorist who couldn’t shoot straight would assume that Swift was not part of the American effort to stalk terrorist transactions; that’s tantamount to assuming that cops would track down license plate numbers without enlisting the Department of Motor Vehicles. But, unfortunately for us, terrorists are not so stupid: it’s been reported as far back as 2003 (in The Washington Post) and as recently as this month (in Ron Suskind’s must-read best seller, “The One Percent Doctrine”) that our enemies long ago took Mr. Bush at his word and abandoned banks for couriers, money brokers, front companies and suitcases stuffed with cash and gold. Tom Brokaw summarized the consensus of terrorism experts last week when he told Chris Matthews of MSNBC: “I don’t know anyone who believes that the terrorist network said, ‘Oh my God, they’re tracing our financial transactions? What a surprise.’ Of course, they knew that they were doing that.”

    Frank Rich: Can’t win the war? Bomb the press!

  2. Dean, Rich, as you know, is a NYT columnist. He certainly is entitled to his view, as is the NYT, but to cite him and conclude the any objection to the NYT article is baseless and constitutes prior restraint, is a bit premature, don’t you think? — especially when another scion of American journalism, the WSJ, clearly disagrees.

    Besides, now the NYT is arguing the opposite side of what they argued in the Valerie Plame affair. Remember the lectures about necessity of keeping the identity of the low level operative secret? Then everybody knew she was a low level functionary. Now they argue because everybody knew about Swift (a debatable assumption), they should be let off the hook for revealing a secret operation. They can’t have it both ways.

    No, this is not as clearcut as the NYT would have us believe.

  3. How secret could the SWIFT operation have after President Bush and other administration officials announced their intention to work with banking institution to “follow the money” immediately after September 11th attack? Following that, Dept. of Homeland Security officials even boasted of these efforts. The editors of the NY and LA Times write:

    Government officials, understandably, want it both ways. They want us to protect their secrets, and they want us to trumpet their successes. A few days ago, Treasury Secretary John Snow said he was scandalized by our decision to report on the bank-monitoring program. But in September 2003 the same Secretary Snow invited a group of reporters from our papers, The Wall Street Journal and others to travel with him and his aides on a military aircraft for a six-day tour to show off the department’s efforts to track terrorist financing. The secretary’s team discussed many sensitive details of their monitoring efforts, hoping they would appear in print and demonstrate the administration’s relentlessness against the terrorist threat

    When Do We Publish a Secret?

    It’s unlikely that any counter-terrosim operation was compromised by the NY Times story, since as former counter-terrorism chief Richard Clarke writes:

    They want the public to believe that it had not already occurred to every terrorist on the planet that his telephone was probably monitored and his international bank transfers subject to scrutiny. How gullible does the administration take the American citizenry to be?

    Terrorists have for many years employed nontraditional communications and money transfers — including the ancient Middle Eastern hawala system, involving couriers and a loosely linked network of money brokers — precisely because they assume that international calls, e-mail and banking are monitored not only by the United States but by Britain, France, Israel, Russia and even many third-world countries.

    A Secret the Terrorists Already Knew

    The real problem seems to be that the Bush administration failed to notify Congress of the Swift operation as required by law. As last week’s Supreme Court Hamdan ruling makes clear the Bush administration has treated the other branches of government as lesser and unequal partners in ways that are incompatible with the constitution. Yesteday, on the ABC’s “This Week”, Senator Diane Feinstein revealed that the Senate Intelligence commitee wasn’t briefed about the SWIFT progrram until after it was clear the New York Times was publishing the story.


    STEPHANOPOULOS: The White House said they briefed the Congress on this matter and there is no law called into question. Do you believe that a law is called into question and that this program might have been illegal?

    FEINSTEIN: Well, I’m on the Intelligence Committee. I can tell you when I was briefed and when the committee was briefed — and that was when it became apparent that the New York Times had the story and was going to run it. And that’s when and why they came to us and briefed us.

    STEPHANOPOULOS: So you knew nothing about it before the New York Times was asking questions?

    FEINSTEIN: That’s correct

  4. Dean there is a difference between knowing that bank accounts will be watched and HOW they will be watched.

    It is a given that the government was going to investigate bank accounts. It goes back to the BCCI scandal.

    But when the NYT starts publishing the inner workings of how the accounts were watched they’ve compromised security.

  5. Ok, let’s run with the reasoning a bit. The NYT contends Swift was an open secret. Stephanopoulos reports it was so secret that not even Congress new about it. Which is it?

    Further, of course terrorists can deduce how they are being followed. There is a world of difference however, between deduction and proof. The real question is whether the NYT compromised a productive espionage operation — even if others knew about as they claim (but which the Stephanopolous report contradicts) — and, if so, why they did it. Merely claiming that others new about doesn’t address this question.

  6. According to the Bill Keller and Dean Baquet, editors of the NY and LA Times, “..the banking articles, which the president and vice president have condemned, did not dwell on the operational or technical aspects of the program, but on its sweep, the questions about its legal basis and the issues of oversight”

  7. Note 6. That would be like the Chicago Tribune arguing that their indirect revelation that the Americans broke the Japanese naval codes during WWII (which they did under Robert McCormack) was justified because they didn’t expose how the codes were broken. (Roosevelt wanted to send in the Marines to shut down the Chicago Tribune but cooler heads prevailed. The Japanese never noticed the report.)

    The rationale, IOW, doesn’t justify publishing of the report.

  8. The government employees who leaked this information should be identified and prosecuted. They violated their position of trust, they committed illegal acts, and they should pay for their crimes. If they feel like they did so for the ‘right reasons,’ then they should have the guts to face up to it and take their chances in court.

    As to the Times, we have to separate two issues. “Should they have published this?” is a moral question, not a legal one. I don’t think they should have. Monitoring of international banking transactions isn’t a violation of U.S. law.

    The other question, “Was it legal to publish this?” I think is also easy. The answer is “yes.” The Times is not under any obligation to sit on information that it is passed, even if the ones passing that information did so in violation of their own duty. If the press inherited the obligations of their tipsters, then almost nothing would get published. The Times is not blameless morally, but I don’t see that they can be prosecuted, since there is no way to tie this disclosure to the loss of any lives. I doubt anyone is going to die because of this, unlike the situation with the Japanese Naval Codes whose disclosure would have directly imperiled U.S. war efforts and gotten Americans killed.

    Now, on a third question, “Can they be compelled to name their sources?” I think is also clear. The answer is, “Yes.” Leaking to a member of the press is not the same thing as confessing to a priest or telling your wife. There should be no legal protection here.

    Not liking what the Times did is one thing. The calls to put the editors of the Times in jail is quite another. If you cross that bridge, there is no return. The source of this story, however, is absolutely fairgame and should be in front of a judge.

    Given the track record of this administration, however, I won’t hold my breath waiting. Rove’ll play the anti-Times card, whip up a lot of fury, and then try and ride this home in November. In the meantime, people who should be in jail won’t be. I don’t even think there is an investigation going on over this. Tony Snow dodged the question on that on O’Reilly by saying that the President couldn’t force the Attorney General to open an investigation, and that no one knew what Gonzalez was going to do or not do. Since then, I’ve heard nothing.

    Amazing. The spokeman for the White House was making the case for why nothing of any substance was being done on this. That is why cynical observers of the White House (like me) keep thinking of these as election year stunts. Whoever leaked this info should go to jail. But there is not even an investigation it appears.

    That should be the real story here, not the Times.

  9. Glen: By your standards, Dr. Jack Ryan of Tom Clancy’s fictional “Clear and Present Danger” should have been prosecuted for defyng his President and reporting a clandestine program to Congress. In fact, hiding significant intelligence programs from Congress is exactly what the Bush administration has been doing, prompting action by the whistle-blowers you would like to punish.

    Hoekstra: Major program kept from Congress; Republican blasts failure to brief House Intelligence Committee

    WASHINGTON (CNN) — The Republican chairman of the House Intelligence Committee accused the Bush administration Sunday of failing to inform Congress of “significant activity” in ongoing secret intelligence programs.

    “There are lots of programs going on in the intelligence community. We can’t be briefed on every little thing,” Chairman Peter Hoekstra said on “Fox News Sunday.”

    “But in this case there was at least one major — what I consider significant — activity that we had not been briefed on,” the Michigan Republican said without specifying what that activity was.

    “It is not optional for this president or any president or people in the executive community not to keep the intelligence committees fully informed of what they are doing.”

  10. Dean –

    Jack Ryan, in the book, reported the operation to Congress openly. I have no problem with that. The highest duty is to the Constitution. If the operatives who leaked this information felt they had an obligation, then they could have gone straight to members of Congress, or they could have resigned and gone public. To selectively leak to the press, however, while maintaining your silence and your employment smacks of political motives. This is bureaucratic in-fighting via proxy which is just plain wrong.

  11. I wonder how Jack Ryan would have fared against a Bush-Cheney administration pressuring analysts like himself to alter and fabricate intelligence, turn a blind eye to torture and corruption, parrot the party-line and aid and abet the establishment of a dictatorial, supreme executive accountable to know one. Perhaps it is a good thing that Mrs. Ryan wasn’t a CIA agent as well, whose identity Karl Rove and scoter Libby could expose.

    Father Greeley writes:

    The United States is currently caught up in a new campaign for a military dictatorship — rule by a military chief with absolute power. The White House, inspired by the vice president, has argued that in time of great danger, the president has unlimited powers as commander in chief. If he cites “national security,” he can do whatever he wants — ignore Congress, disobey laws, disregard the courts, override the Bill of Rights — without being subject to any review. Separation of powers no longer exists. The president need not consult Congress or the courts, only the vice president, the attorney general and God. Moreover, the rights of the commander in chief to act as a military dictator lasts as long as the national emergency persists — indefinitely, that is, and permanently.

    … Richard Cheney is a vile, indeed evil, influence in American political life. He is a very dangerous person who, if he could, would destroy the American freedom about which he and his mentor prate hypocritically. His long years in Washington have caused him to lose faith in the legislative and judicial processes of the government. The country, he believes, requires a much stronger executive. Such concentrated power would have been necessary even if the World Trade Center attack had not occurred. He uses the fear of terrorists as a pretext to advance his agenda of an all-powerful president, a military dictator.

    Tempted toward military dictatorship

  12. Dean writes:

    “The United States is currently caught up in a new campaign for a military dictatorship — rule by a military chief with absolute power.”


    “Richard Cheney is a vile, indeed evil, influence in American political life. He is a very dangerous person who, if he could, would destroy the American freedom about which he and his mentor prate hypocritically.”

    Dean, since you seem to have found the right web sites, could you tell me which color of shoes I should be wearing before the mother ship arrives?

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