National Security and Freedom of Speech

Sunday, July 30, 2006

In 1942 a Chicago Tribune reporter named Stanley Johnson was covering the Battle of the Coral Sea aboard the carrier Lexington when his ship was sunk by Japanese fire. Rescued, he was put aboard a ship bound for the United States, sharing a room with the Lexington's skipper, Commander Mort Seligman. During the journey Johnson noticed among Seligman's papers one containing the Japanese order of battle for the decisive showdown at Midway. Clearly, the United States had broken Japan's secret code.

There were compelling reasons to keep the breakthrough secret, but the Tribune ignored them all. Instead, Johnson's editor, Pat Mahoney, gave the piece a false Washington dateline and a misleading headline (“Navy Had Word of Jap Plan to Strike at Sea”) and attributed the scoop to “reliable sources in naval intelligence.” According to Harold Evans, whose online essay recalls the affair, FDR was so appalled by the leak that he briefly considered sending the Marines to shut down the Tribune's McCormick Tower or prosecuting its publisher for the capital crime of wartime treason.

The Tribune was lucky. Criminal sanctions were surely in order for so potentially destructive a breach of the World War II censorship regime. Without doubt, the public interest in learning that the Japanese code had been cracked was dwarfed by the potential consequences to U.S. fighting men and their mission had Tokyo bothered to read that issue of the Tribune.

The question of what the press has the right to publish and what an administration has the right to classify or otherwise withhold has surfaced again, with a New York Times report disclosing warrantless domestic surveillance of conversations between U.S. citizens and overseas Al Qaeda suspects, and a story in the Washington Post regarding accused terrorists transferred to prisons abroad, some to places where torture is practiced.

Both stories were solidly sourced. Both received national attention. Both won Pulitzer Prizes. And both infuriated an administration that claimed they damaged the ongoing war against terrorism. Whatever existing statutes say about punishing those who make public classified information, news organizations have never faced criminal prosecution. Now the administration suggests that may change.

Here and there, some judicial language has raised the hopes of journalists and their advocates, but in most cases the claim of special press privilege has been rejected.

The threat poses a real danger for journalists. There is scant precedent on which to rely. A series of cases growing out of the overzealous prosecution of World War I dissenters moved in the direction of a “clear and present danger” doctrine first articulated in dissent by Justice Oliver Wendell Holmes. But rather than expanding First Amendment rights, most of these cases affirmed the convictions below.

In 1971, the Supreme Court refused to ban publication by the New York Times and the Washington Post of the so-called Pentagon Papers, which chronicled the behind-the-scenes decision-making that escalated the war in Vietnam. But that case involved prior restraint, which historically carried a heavy burden in the courts. Further, the effort to block publication was based on neither statute nor administrative regulation, but simply on a presidential claim that the reports would damage the ability of the United States to conduct its foreign business. In matters involving publication of classified material—particularly during wartime—the courts may elect to shun a case-by-case standard and approve the government action if the restrictions imposed are within the scope of traditional government power and logically related to a legitimate public purpose.

News organizations have never faced criminal prosecution for making classified information public. Now the administration suggests that may change.

Defenders of the press often proclaim its special role as the watchdog of democracy and assert its right to privileges rooted in the First Amendment and unavailable to others in society. This theory has been trotted out in libel and slander cases, situations in which the press has sought special investigative access to such places as prisons and military battlefields and, most recently, in the claimed right to protect confidential sources from disclosure to prosecutors and grand juries. Here and there, some judicial language has raised the hopes of journalists and their advocates, but in most cases the claim of special press privilege has been rejected.

As journalists we are on unmapped terrain. The Supreme Court may eventually hold that the press has a constitutional right to report on government surveillance of domestic citizens even if the Al Qaeda terrorist on the foreign end of the line is thereby put on alert and takes added future precaution. And it may hold that the press had the right to report on the rendition of terrorist suspects to scary places, even if that terminates such practices, removing a threat that perhaps made many a frightened prisoner talk.

But, to repeat, the legal bridge supporting the press claim of a special First Amendment license is shaky. If asked to bear too much traffic, it may crumble.

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