The last thing this country needs is another major leak
investigation, this one into who blew the whistle on warrantless
domestic wiretaps, with the prospect of another parade of journalists
being hauled before the bar to reveal their sources or face jail time.
In the first place, it might be difficult to nail any one person with
the disclosure because there seems to be a number of government
officials and intelligence sources who were aware and concerned that
the National Security Agency had expanded its eavesdropping on the
domestic front following the September 2001 terrorist attacks. In fact,
it now looks as though the NSA did so without presidential
authorization, which came later. House Democratic leader Nancy Pelosi
of California raised questions about NSA activities around that time.
In the second place, if the First Amendment has any meaning left when
it comes to press freedom, there should be an instant declaration to
that effect from the courts, which, of course, is certainly wishful
thinking given recent rulings in these cases, the most prominent being
the leaks that led to the outing of a CIA operative. That incident saw
one reporter held in contempt of court and jailed for protecting her
sources and several others threatened with incarceration unless they
squealed on theirs. Little or no prospect of solace was forthcoming
from the last refuge for constitutional freedoms, the Supreme Court.
The result is the highly publicized prosecution of a now-former White
House aide, Scooter Libby, on allegations he tried to obstruct the
investigation into how the leak took place. Those charges were brought
because of the inability of the special prosecutor to find any
violation of the statute prohibiting such disclosure. Other reporters
never named had similar information that didn’t come from Libby,
casting doubt on the entire prosecutorial process.
So now
already there are demands for the naming of another special counsel to
find out who leaked the fact that the NSA was spying on Americans
without court approval. Swell. Let’s have another single-minded,
overzealous defender of public outrage take his shot at the press.
President Bush was unpersuasive in his effort to stop publication of
the story, held for a year out of national-security concerns. He was
furious. One wonders whether his anger at the press is because he got
caught in a highly questionable activity and is interested not so much
in finding out who leaked the information, but in punishing the
newspaper that embarrassed him by printing it. There are those who
suggest that Bush himself should be investigated for having authorized
the bypassing of statutory judicial restrictions on the electronic
surveillance of domestic conversations, even those made to overseas
locations.
There clearly is room for debate on the president’s
“wartime” authority and whether during a time of national emergency he
can arbitrarily suspend certain laws designed to protect American civil
liberties. That debate can be expected to heat up in earnest as the
year progresses. Certainly, other presidents have done so, including
Abraham Lincoln, who suspended habeas corpus during the Civil War.
President Richard Nixon wanted to during the violent anti-Vietnam
protests, but was deterred from doing so by FBI Director J. Edgar
Hoover. Nixon also failed in his attempt to halt publication of the
so-called Pentagon Papers when the Supreme Court ruled against prior
restraint.
It would be difficult to find a time more fraught
with official animosity for the press, including the Watergate era,
when the White House blamed reporters for anything that went wrong and
even placed them on an enemies list. Some were the victims of wiretaps
themselves. But the danger for a free press lies really in a seemingly
unsympathetic judiciary, one that lacks an understanding of the
necessary bond between sources and journalists in the oversight of
public affairs. Without the assurance of protection from retribution,
those public servants who, for whatever reason, have concerns about
policies or actions by superiors will be reluctant to come forward.
Clearly, there are government operations that should be classified and
those who reveal them subject to punishment. But what if there is
substantial doubt about the legality of those activities? What if there
is a law like the Foreign Intelligence Surveillance Act that sets up a
process to make these actions legal and that law is ignored? What then?
This time the courts have their own credibility to worry about. They
also should be concerned about what is happening to the principle of a
free and unfettered press.
(Dan K. Thomasson is former editor of the Scripps Howard News Service.)
