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Why the Government Should Not Criminalize National Security Reporters

By Marco Poggio
Published: April 1, 2014

The government of a developed society should act to protect its citizens. There are a number of possible objections to this claim, some providing compelling counter arguments; however, I will leave them aside for the sake of this discourse.

In politics, every day is a day of constant evaluations of costs and benefits that make sense in the big picture and respond to the people’s need for protection. In a Democratic country, the government should serve the people, the voters. Presidential candidates reiterate this common principle, shouting it from their podiums during the electoral race. On their behalf, ordinary people have two ways of checking whether an elected leader is respecting his or her promises: in the first case, they find out by themselves by directly observing how political decisions affect their daily lives. In the second case, they rely on the various information outlets that observe the institutions at work.

First-person observation, however, is too narrow to embrace the entire scope of the complex reality of a country. Wherever the eye of individual citizen cannot reach, the media do.  The many means of information have the ability of offering a broad prospective of the life of the nation. For this very reason, it is ultimately up to the media to provide the public with enough information necessary to build an opinion. That is why the press has a tremendous importance in the equilibrium of power; it shifts votes, it influences political decisions, and it plays an active role in shaping society.

Considering both the role of the media and the one of the government, I think it can be safely established that these two actors respond to two opposite ethical theories. On the one hand, the government acts in terms of utility: its duty is to maximize the wellbeing of its people and to minimize suffering; in this effort, for how much it tries to yield to more and more civil liberties, the government is always in a position of conservatism. On the other hand, the press acts in terms of liberalism, in the sense that it generally works on expanding liberties, by informing the public about what it needs to know and would not know otherwise, by casting a light over issues that need to be confronted with the rising of opinions and by making clear what the government is doing wrong.

Of course, philosophical generalizations can hardly be made when it comes to judging a nation and its leaders. What seems black and white in theory often dissolves into the gray realm of real politics. Despite this, my claim is, at least theoretically, that government and press dwell on opposite sides of the political spectrum. Moreover, I think, in reality, they should. It is precisely in virtue of that opposition that the press has a role in counterbalancing the power of the government. The duty of the press is to maintain its critical eye. The one of the government is to defend its people. The fact that these two elements often clash is part of the strife towards an effective democracy.

The problem, however, is that there is no real equilibrium, as the government has on its side the instruments of oppression and censorship. While it might be resentful to censor, the government of the United States does engage in oppressive politics toward the media. In the last decades, and particularly in the last six years, the government has cracked down on journalists with the declared purpose of defending the American people from terrorism. On several occasions, it has considered the press a threat to national security, investigating, arresting, and detaining journalists who have managed to access secret material and have disclosed it to the public. This approach to the work of the media continues today.

The right of the press to inform the people is sacred. Furthermore, what makes the autonomy of press even more inalienable is the fact that informing the people is not only a right, but also a duty. For this reason, the government should not overrun that autonomy for any reason.

The people elect the president seeking guidance, representation, and, more than anything else, protection. A country is always in need of security. The world exists in a constantly precarious order where there is no effective justice.

The balance is maintained by the idea of deterrence, made into a persuasive argument by the epileptic recurrence of the nuclear bomb imagery. The remembrance of the atom bomb blasting in Japan and decades of Cold War hostility have persuaded the public that the only source of protection is ultimately one’s own nation. The fear factor has played an important role in the favor of power. The one who is been in charge of the government, whether Republican or Democrat, enjoys being in a protective position, one  that grants their leader the authority to launch military enterprises that produce mixed reactions. Some of them have been massively opposed, like the Vietnam War, which nonetheless got the country involved deeply enough to cost the lives of 60,000 of its citizens.

Even more striking is the way the American people reacted to the terrorist attack of September 11. In those moments of crisis, citizens have been able to leave aside partisan divisions to reunite under the common purpose of defending the country. The day after the terrorist attacks, most Americans woke up with far fewer certainties about their safety than they had ever had before. A writing carved into the ashes of the debris read: “C’mon Bush, Nuke Them,” while masses surrendered to irrationality and fear. National security became an American obsession.

Yet, September 11 was not simply a tragic moment that helped people rediscover unity for the nation. It was the beginning of a series of policies that would change the balance of the country for years, perhaps decades. The war on terrorism completely redesigned the balance between institutions and the public. What changed more dramatically than anything else was the relation between the duty of the government and the rights of the people.

The Patriot Act, signed into law by the Bush administration the month after the attacks in 2011, redefined the security standards that affected the lives of Americans on several levels. One of the most potent effects of the legislation was the restriction imposed on the media. Since the war on terrorism kicked in, the press struggled to maintain the autonomy it claimed to have in virtue of the First Amendment in the American Constitution. The Patriot Act reinforced a power the government had had since 1978, when President Jimmy Carter signed into law the Foreign Intelligence Surveillance Act (FISA), “which created a secret spy court with powers to issue secret warrants authorizing officials to perform wiretaps and searches.” Since then, the government has continued spying on individuals and institutions up to this day.

Once the Patriot Act came into action, the Justice Department began prosecuting journalists and their sources for leaking secret material stored in the government’s databases.

The first major case of leak of “classified” material—material that is held secret by the government—took place thirty years before the Patriot Act, in 1971. At that time, Daniel Ellsberg, a former United States military analyst, disclosed a report created by the Department of Defense that contained comprehensive information about the operations of the United States armed forces during the War in Vietnam. The report, called “Pentagon Papers,” was leaked to the New York Times and other newspapers with the intention of letting the public know about extended military actions in Vietnam, Laos, and Cambodia that were being kept secret.

The press caters to the public, which is made of distinct individuals. After assimilating the information, each individual is then able to produce their own judgment. The point is that the media should not contain any moral claim, but rather should leave ethical judgment up to the public. In the case of serious journalism, this is indeed what happens. By letting the people know about the bombings the United States Army carried out in Laos and Cambodia during the time of operations in Vietnam, the leak of the “Pentagon Papers,” allowed the public to judge whether or not that was something it agreed the government should do. But if that information had not come out, the public would not have been able to criticize the policy it contained, which is exactly what the government wished for. The government attempted to keep this operation secret in order not to face the judgment of the public.

The government has been able to justify pretty much anything by claiming to act in the interests of the American people. However, in the last decade, acting in accordance with this principle has drastically reduced the autonomy of the press, which is a crucial component of a Democracy, where individuals are themselves autonomous.

James Risen, a New York Times Pulitzer Prize-winning journalist, is facing prosecution for having received leaked classified material regarding North Korea from Jeffrey Sterling, a former Central Intelligence Agency official who was indicted and arrested. At a recent conference named “Sources and Secrets: A forum on the Press, the Government and National Security,” Risen said that, throughout his entire career, he has never endured such a difficult moment both as a journalist and as an individual.

More recent cases of news leaks involved the creation of WikiLeaks, an online non-profit journalistic organization publishing classified information leaked from anonymous sources. The material made public by WikiLeaks is often unsettling, as it shows evidence of senseless brutality being committed on several American belligerent campaigns. One of the most shocking examples was a video of an airstrike taken place in Baghdad on July 12, 2007 that killed more than 12 people, mostly unarmed, among which were also two Iraqi journalists. The video, named “Collateral Murder,” appeared on the WikiLeaks website on April 5, 2010. The release of the video caused Army Officer Chelsea Elizabeth Manning to be arrested and incarcerated for leaking the video to Wikileaks.

Perhaps the most recent major case of leaked secret information that received international attention was orchestrated by Edward Snowden, a former N.S.A. contractor, whose revelations about the methods used by the US intelligence agencies to monitor the public have opened a fierce debate on whether the government is acting unconstitutionally toward both the public and the world of information.

Starting with Ellsberg in 1971 and until the case of Snowden today, the government has lead its utilitarian mission by criminalizing both leak sources and the journalists who received and published the classified information appealing to the Espionage Act of 1917.

According to the First Amendment Handbook, “One concern of the news media is that the FISA could be used by the government to spy on journalists and discover their sources. Under the Patriot Act, investigators need show only that national security is a ‘significant purpose’ in order to obtain a FISA warrant.” In other words, even an unsubstantiated claim by the government that a journalistic investigation could cause a potential risk for national security gives the Justice Department the power to prosecute the press. Very little has been done politically to challenge this overwhelming leap in power between the government and the press.

At the “Sources and Secret” conference, Senator Charles Schumer of New York, who has been actively seeking a bill that protects leak sources and reporters, said the words contained in the First Amendment do not express a clear concept of autonomy of the press, alluding that any interpretation in that sense would have to be constructed politically. At the same conference, Jeffrey Toobin, staff writer for the New Yorker and CNN senior legal analyst, maintained a position similar to Schumer’s. Journalists, like politicians, understand that the government thinks in utilitarian terms rather than moral terms.

From the time of the Nixon administration until Obama’s today, the government has reserved the right to “know better.” This utilitarian claim has undermined the autonomy of the press. The Freedom of Press is an inalienable component of people’s freedom and autonomy. The public needs to know how the government, which must respond directly to voters, behaves.

It follows that the government has the duty of not only protecting its people but also respecting the autonomy of the information system. At stake is not only the wellbeing of the nation, but, more than everything else, the dignity of the people, who wish to remain free agents, who want to be informed, who want to be able to judge what is good and what is bad.

In debating whether the government is allowed to suspend people’s freedom in order to maximize security, I find myself in the position advocating for individual autonomy as a starting point for any policy. For the same reason, I think the press should enjoy its independence under the law.

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