Advancing a Free Society

The Patriotism of the American Media

Monday, February 28, 2011

In its story last week about the ties between the CIA and Raymond Davis, the American recently arrested in Pakistan, the New York Timesoffered this explanation for why it sat on the story:

The New York Times had agreed to temporarily withhold information about Mr. Davis’s ties to the agency at the request of the Obama administration, which argued that disclosure of his specific job would put his life at risk. Several foreign news organizations have disclosed some aspects of Mr. Davis’s work with the C.I.A.. On Monday, American officials lifted their request to withhold publication, though George Little, a C.I.A. spokesman, declined any further comment.

Glenn Greenwald complained that “the NYT knew about Davis’ work for the CIA (and Blackwater) but concealed it because the U.S. Government told it to” (my emphasis).  That is inaccurate.  The government asked the Times not to publish, as it often does, and the Timesagreed to the request, which it sometimes does.  The final decision rested with the Times, which listens to the government’s claims about national security harm and risk to individual lives, and then makes its own decision.   The Times does not, in my opinion, always exercise this discretion wisely.  I think they blew it, for example, when they published the SWIFT interbank transfer story, and I still don’t understand why they thought it right to publish the name of Khalid Sheik Mohammad interrogator Deuce Martinez.  But the way the system works, for better or worse, is that the government makes the case to the media about the national security harms of publication, and the media assesses the government’s arguments, weighs the perceived national security harm against the perceived benefits of publication, and decides whether and how to publish.  Often, the press splits the baby, as when the Washington Post reported on secret CIA prisons in Eastern Europe but declined to name particular countries “at the request of senior U.S. officials,” who argued that “the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation.”

Continue reading Jack Goldsmith at Lawfare