On October 7, The Washington Post published a story about Nazih Abdul-Hamed al-Ruqai, an Al Qaeda operative laughably described as “detained” by U.S. Special Operations forces over the previous weekend. (He was detained in front of his house in Tripoli, then detained all the way to New York, where he appeared in a federal court to plead not guilty to charges of terrorism.) The source for most of the story was an American official “who spoke on the condition of anonymity to discuss an intelligence assessment.”
It is the fashion in U.S. newspapers these days, and sometimes even the rule, to add credibility to leaks by telling us why leakers are leaking and why we ought to believe them. The Post’s ombudsman says that the “standards and ethics” policies of the Post require Post writers to supply as much detail as they can “about why our unnamed sources deserve our confidence.” However, “to discuss an intelligence assessment” obscures more than it clarifies. Why should we believe this American official just because he is discussing an intelligence assessment? (“Oh, I see. You’re discussing an intelligence assessment. That’s all right then. Carry on leaking!”)
In fact, this leak, like many or even most, was almost certainly an official leak. Far from being trouble, these leaks are a part of the corporation or agency’s public relations effort. Government officials and corporate executives don’t like leaks, except for when they do.
The media, on the other hand, like leaks except for when they don’t. The Post is a great trafficker of leaks, but it does not care for Edward Snowden, the “fugitive contractor” (as the Post called him in an editorial last July), guilty of “unpredictable behavior and mounting toxicity.” The editorial did not mention that the Post itself had published much of the Snowden material. Like The Guardian's freelance troublemaker—and I mean that as a compliment—Glenn Greenwald, it came from Snowden. The Post said that “the first U.S. priority should be to prevent Mr. Snowden from leaking information that harms efforts to fight terrorism and conduct legitimate intelligence operations.”
In a different editorial, the Post supported the prosecution of another leaker, Bradley (now Chelsea) Manning. (I should say here that I don’t mean to pick on the Post. I only use it as an example for reasons of convenience.) “No system of secrecy can function if people ignore the rules with impunity; it is reasonable that Pfc. Manning be punished in some way for breaking those rules,” the paper concluded. Punished how? The usual way in this country is prison, though perhaps the Post has something more imaginative in mind, like forcing Manning to read all the documents she lifted and then submit to an exam on their contents.
Most people who know about such things seem to agree that governments are much too quick with the “top secret” stamp, and that leaking “top secret” material is often a public service, however far the toxicity of the leaker has mounted. Most people would also agree that sometimes government secrets really ought to stay secret. The question is: Who gets to decide? The journalist who publishes the leak and his or her editors, or the government? And who decides who decides?
Right now the media claim the unilateral right to publish what they want to. They say they carefully examine all secret information before they release it and, as patriotic institutions, would never, never release anything they thought was damaging to national security. I’m sure that’s true of The Washington Post and The Guardian, if not necessarily of Greenwald or Snowden. But what gives them the authority to decide what material is damaging and what is not? There is no “invisible hand,” as in free-market capitalism, to make sure that, if each side pushes against the other, the right balance will be struck.
Taking things a step further, many journalists also believe the First Amendment grants them a right to protect the sources who leak to them. This question has been litigated all the way up to the Supreme Court, and it is clear that the Constitution as currently interpreted offers no such protection: The First Amendment is about protecting speech, not protecting a refusal to speak. Nevertheless, many journalists continue to insist that the law is on their side, and some (most notably the former New York Times reporter Judy Miller) have gone to jail in order to make their point.
It is shocking that so many journalists—members of the profession that benefits most from the Bill of Rights—blithely claim the right to interpret the Constitution the way they wish, as opposed to the way the courts have ruled. If the president or other high officeholder tried this, he or she would probably be impeached. Even Richard Nixon turned over the Watergate tapes after the courts rejected his claim of executive privilege.
In fact, if someone is going to be assigned unilateral power to decide what secrets get released, that someone really should be the government. At least in a democracy, the government cannot be expected to undermine its own legitimacy by stamping something “secret” and then standing by and nodding approval when it gets leaked.
Most U.S. states have press shield laws, which usually attempt to make some distinctions between good leaks and bad leaks. A national shield law, creating a “journalist’s privilege” analogous to the privilege for spouses, ministers, lawyers, and so on is a good idea. It would do what some journalists erroneously claim the First Amendment already does: protect them from having to testify or supply evidence against a source. For information whose release would damage national security, there could be a way for journalists to get clearance in advance, which would be an absolute defense against prosecution. The clearance would not be mandatory. A journalist could publish the information despite a negative ruling, or even despite no ruling at all, understanding that a court might later find that the release of the information did damage national security. The definition of national security secrets should be as narrow as possible, and the burden of proof would be on the government. But reporters would accept some responsibility.
This whole controversy is basically about secrets. You and I have secrets the government wants. The government has secrets the press wants. And the press has secrets it wants to keep secret, in order to maintain a reliable flow of the government’s secrets. If it’s a question of whose secrets take preference, or who gets to decide whose secrets take preference, that’s a battle that journalists are going to lose, don’t you think?
Michael Kinsley is editor-at-large of The New Republic.