Tag: Pentagon Papers

On Greenwald, Kinsley is both right and wrong

On May 24, 2014

Michael Kinsley

A few thoughts about Michael Kinsley’s much-criticized New York Times review of Glenn Greenwald’s book “No Place to Hide,” an account of his role in the Edward Snowden leaks.

Kinsley is technically correct in asserting that the government has — and should have — the final word when it comes to deciding whether secret information should be made public. Thus I part company with the likes of Gawker’s Hamilton Nolan, who, in a post headlined “Michael Kinsley Comes Out Against Journalism,” fulminates: “Michael Kinsley does not believe that a free press should be allowed to [expose official secrets]. He believes that the decision to tell government secrets ‘must ultimately be made by the government.'”

It’s Nolan’s “should be allowed” that bears scrutiny. In fact, the Supreme Court has made it clear that the government may act to prevent secrets from being revealed if those revelations would cause a serious breach of national security. Here is how the Court put it in the 1931 case of Near v. Minnesota:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.

The government may also prosecute both leakers and journalists post-publication, as a majority of the Court all but invited the Nixon administration to do in the Pentagon Papers case — and as Harvey Silverglate explains in this 2006 Boston Phoenix essay.

If you think about it, how could it be otherwise? It’s so easy to conjure up scenarios involving nuclear weapons, terrorism and the like under which censorship and prosecution would be justified that it’s not even worth the effort to spell them out (although Chief Justice Charles Evans Hughes tried to do just that in Near).

But I emphatically part company with Kinsley over his sneering, dismissive tone, and his shocking failure to understand the role of a free press (or even a press that’s not quite as free as Hamilton Nolan imagines) in a democratic society. Because if the ultimate authority rests with the government, there are nevertheless times when leakers, individual journalists and the institutional press must stand up to the government and risk its wrath in order to serve the public interest. That’s what The New York Times and The Washington Post did in publishing the Pentagon Papers, the government’s own secret history of the Vietnam War.

And I would argue that that’s what Snowden, Greenwald, Barton Gellman (curiously absent from Special Agent Kinsley’s arrest warrant), The Guardian and The Washington Post did in exposing the NSA’s practices.

I wrote more about the legal background for The Huffington Post last June.

Photo (cc) by the Aspen Institute and published under a Creative Commons license. Some rights reserved.

What happened at The Guardian could happen here

By Dan Kennedy

On August 20, 2013

In First Amendment, Free speech, Media

Charles Evans Hughes

This commentary was first published at The Huffington Post.

As you have no doubt already heard, Alan Rusbridger, editor of The Guardian, wrote on Monday that British security agents recently visited the newspaper’s headquarters and insisted that hard drives containing leaked documents from Edward Snowden be smashed and destroyed in their presence. The incident, Rusbridger said, took place after a “very senior government official” demanded that the materials either be returned or disposed of.

Rusbridger’s report followed the nearly nine-hour detention of Glenn Greenwald’s partner, David Miranda, at London’s Heathrow Airport. Greenwald has written the bulk of The Guardian’s articles about the Snowden documents, and Miranda had been visiting filmmaker Laura Poitras, who has worked extensively with Snowden and Greenwald, in Berlin.

We are already being told that such thuggery couldn’t happen in the United States because of our constitutional protections for freedom of the press. For instance, Ryan Chittum of the Columbia Journalism Review writes, “Prior restraint is the nuclear option in government relations with the press and unfortunately, the British don’t have a First Amendment.”

But in fact, there is nothing to stop the U.S. government from censoring the media with regard to revelations such as those contained in the Snowden files — nothing, that is, except longstanding tradition. And respect for that tradition is melting away, as I argued recently in this space.

The case for censorship, ironically, was made in a U.S. Supreme Court decision that severely limited the circumstances under which the government could censor. The decision, Near v. Minnesota (1931), was a great victory for the press, as the ruling held that Jay Near could not be prohibited from resuming publication of his scandal sheet, which had been shut down by state authorities (of course, he could be sued for libel after the fact).

What’s relevant here is how Chief Justice Charles Evans Hughes described the limited circumstances under which the government could engage in prior restraint:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

The text I’ve bolded means that the government may, in fact, engage in censorship if by so doing it would prevent a breach of national security so grave that it could be likened to the examples cited by Hughes. That’s what the Nixon administration relied on in seeking to stop The New York Times and The Washington Post from publishing the Pentagon Papers in 1971.

The Supreme Court, in allowing publication of the Pentagon Papers to resume (New York Times Co. v. United States), wrestled extensively with Near v. Minnesota, and ultimately decided that revealing the government’s secret history of the Vietnam War did not amount to the sort of immediate, serious breach of national security that Hughes envisioned.

But who knows what the court would say if the Obama administration took similar action against The Washington Post, which has published several important reports based on the Snowden documents — including last week’s Barton Gellman bombshell that the National Security Agency had violated privacy protections thousands of times?

Unlike the Pentagon Papers, the Snowden documents pertain to ongoing operations, which cuts in favor of censorship. Cutting against it, of course, is that there’s a strong public-interest case to be made in favor of publication, given the long-overdue national debate that Snowden’s revelations have ignited.

The bottom line, though, is that there is no constitutional ban that would prevent the White House from seeking to stop publication of the Snowden documents — even if U.S. officials are unlike to engage in the sort of theatrics that reportedly took place in The Guardian’s basement.

(Disclosure: I wrote a weekly online column for The Guardian from 2007 to 2011.)

A chilling act of intimidation and harassment

By Dan Kennedy

On August 19, 2013

In Civil liberties, First Amendment, Free speech, Media

Glenn Greenwald

This is pretty shocking. On Sunday, David Miranda, the partner of lawyer/activist/journalist Glenn Greenwald, was detained at Heathrow Airport in London for nearly nine hours and questioned under Britain’s anti-terrorism laws. His computer and other electronics gear were confiscated. Greenwald, who writes for The Guardian, describes what happened here, writing:

This is obviously a rather profound escalation of their attacks on the news-gathering process and journalism. It’s bad enough to prosecute and imprison sources. It’s worse still to imprison journalists who report the truth. But to start detaining the family members and loved ones of journalists is simply despotic.

Greenwald, along with filmmaker Laura Poitras, has been the principal media conduit for Edward Snowden’s revelations about the National Security Agency’s mass surveillance programs. Miranda had been visiting Poitras in Berlin and was on his way home to Rio de Janeiro. (If you haven’t read it yet, here is Peter Maass’ New York Times Magazine story on how Poitras, Snowden and Greenwald came together.)

What were the British security agents up to? Who knows? Maybe they genuinely believed Miranda might be carrying data they wanted to seize. Maybe they were trying to send a message to Greenwald and any other journalists about the consequences of working with a leaker such as Snowden.

Regardless of what you think of Snowden’s actions, there is an enormous difference between leaking and journalism. A generation ago, Daniel Ellsberg was put on trial for providing the Pentagon Papers to The New York Times and The Washington Post; the Times and the Post weren’t prosecuted for publishing them.

The British enjoy fewer press rights than we do in the United States. But Britain is our closest ally, and the U.S. and British security services may be presumed to be working together on the Snowden matter.

The danger is that the U.S. is moving ever closer to criminalizing certain types of high-stakes, leak-based journalism. As I argued several months ago, there is nothing to stop the government from prosecuting journalists for publishing such information other than custom and the fear of a public backlash.

And consider what Snowden has accomplished. In just a few months, public awareness of and debate over government surveillance that came into place after the terrorist attacks of 9/11 have finally reached critical mass. New York University journalism professor Jay Rosen calls it “The Snowden Effect”:

Direct and indirect gains in public knowledge from the cascade of events and further reporting that followed Edward Snowden’s leaks of classified information about the surveillance state in the U.S.

Given President Obama’s oft-proven contempt for the role of a free press in a democratic society, we may be moving closer to the time that such constraints melt away.

Update: My outrage has not diminished, but my understanding of what happened has shifted. As this New York Times story makes clear, Miranda’s trip to Berlin was paid for by The Guardian. It appears that he was facilitating Greenwald’s and Poitras’ journalism, even if he’s not a journalist himself. So this was not harassment of a journalist’s family member. It was harassment of a journalist, or at least of someone engaged in journalistic activities.

Photo (cc) via Wikimedia Commons and published under a Creative Commons license. Some rights reserved.

What “special protections” is Carr talking about?

By Dan Kennedy

On July 1, 2013

In Media

David Carr

There are a couple of problems with David Carr’s column in The New York Times on Glenn Greenwald and the line between journalism and activism.

First, Greenwald isn’t really a close call. He is an opinionated liberal columnist and blogger who works for a large, well-regarded news organization, The Guardian. The key: he’s independent. No advocacy group is paying his salary. If we must draw lines, Greenwald is well on the journalistic side of the divide.

What I really want to see more discussion of, though, is Carr’s assertion that “when it comes to divulging national secrets, the law grants journalists special protections that are afforded to no one else.” What is Carr talking about?

As I explained recently, the Espionage Act, under which Edward Snowden has been charged in the National Security Agency leaks, makes no distinction between leaking classified information and publishing classified information.

The question of whether to prosecute news organizations came up after the Pentagon Papers and again after the revelation of the Bush administration’s illegal wiretapping program. U.S. Rep. Peter King, R-N.Y., has called for journalists to be prosecuted over the Snowden leaks.

Yes, there are limited protections for journalists trying to shield their sources in 49 states. But I don’t think that’s what Carr was referring to. In any case, there are no shield protections at the federal level.

So help me out here. What do you think Carr has in mind?

Edward Snowden and the peril facing journalism

By Dan Kennedy

On June 12, 2013

In First Amendment, Free speech, Media

Edward Snowden

This commentary was published earlier at The Huffington Post.

The editors of The New York Times appear to have forgotten an important principle: the First Amendment is for all of us, and does not grant any special privileges to the institutional press. Thus if Edward Snowden is prosecuted for leaking classified documents about the National Security Agency’s secret surveillance programs, the news organizations that published those documents could face criminal charges as well.

The possibility that journalists could be in legal jeopardy for doing their jobs seems not to have occurred to whoever wrote an editorial in today’s Times, which argues that Snowden should be prepared to pay the price for civil disobedience by way of his leaks to The Guardian and The Washington Post.

Though the editorial dismisses the absurd notion that Snowden has committed treason, it concludes with this observation, which comes across as semi-sympathetic but contains toxic implications: “Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.”

In fact, if Snowden, as seems likely, is charged under the Espionage Act of 1917, there is nothing to stop the government from going after The Washington Post as well — or The Guardian, if someone would like to seek extradition of Glenn Greenwald, who broke the story, and his editor, Alan Rusbridger.

American journalists in these situations operate on the premise that they are free to publish information even if the source or sources who gave it to them violated the law in obtaining it. That’s largely true — First Amendment protections against censorship are extraordinarily high. The corollary, though, is that there may be consequences to be paid post-publication.

The best-known example is the Pentagon Papers, a case that should be near and dear to the hearts of Times editors. In a 6-3 decision, the U.S. Supreme Court ruled that the Times and the Post could not be prevented from publishing the government’s secret history of the Vietnam War.

But as civil-liberties lawyer Harvey Silverglate pointed out in a 2006 article for The Boston Phoenix, five of the nine justices essentially invited the government to file charges against the Times and the Post after publication — and the Nixon administration was preparing to do just that before it got caught up in the burgeoning Watergate scandal.

Silverglate was concerned that the Times faced possible charges under the Espionage Act for revealing the existence of the Bush administration’s warrantless wiretapping program. Even though the program illegally circumvented the Foreign Intelligence Surveillance Court, then-president George W. Bush called the Times’ reporting “a shameful act” — and Gabriel Schoenfeld, writing in Commentary, was just one on the neocon right who argued that the Times should be prosecuted.

More recently, the Times published many of the WikiLeaks documents exposed by Bradley Manning, who is now on trial and who may face a life sentence. And in 2010 John Cook posted a short piece in Gawker making the commonsense observation that the Times‘ potential liability was precisely the same as that of WikiLeaks founder Julian Assange, who had been targeted by Attorney General Eric Holder. Cook wrote:

So if it was a crime when Assange obtained the database, why wasn’t it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It’s a crime to “obtain [it] from any person, or from any source whatever.” Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act.

More than a year ago, I argued that President Barack Obama was engaged in a “war on journalism” stemming from his administration’s obsession with rooting out leakers. Recently we learned that the Justice Department had spied on the Associated Press and on Fox News reporter James Rosen, and had even gotten a judge to sign a search warrant identifying Rosen as a criminal co-conspirator. Now U.S. Rep. Peter King, R-N.Y., is calling for journalists to be prosecuted for publishing the NSA documents leaked by Snowden.

This is a moment of great peril for journalism. With 56 percent of Americans saying they don’t mind if the government monitors their phone records, public opinion is hardly on the side of whistleblowers and the news organizations that work with them.

Whether we approve of everything Edward Snowden did or not, The New York Times and others in our craft ought to show more solidarity. If he is in trouble, so are all of us.

Making sense of the WikiLeaks documents

By Dan Kennedy

On July 26, 2010

In Media

Like just about everyone else in the media world, I’m trying to make sense today of the WikiLeaks documents, the Pentagon Papers of our time.

The documents — reported by the New York Times, the Guardian and Der Spiegel — show that the war in Afghanistan has been undermined by untrustworthy “friends” in the Pakistani intelligence service, chaos and duplicity in Afghanistan, and mistakes by American and allied forces leading to civilian casualties.

In a sense, it’s nothing we didn’t know, and the White House argues that the situation has been improving since President Obama charted his own course. (The most recent documents in the cache are from December 2009.) Still, like the Pentagon Papers, the documents offer official confirmation that things are (or at least were) as bad as we feared, if not worse.

I think WikiLeaks’ strategy of giving the three Western news organizations a month to go over the documents before making them public was brilliant. Earlier this year, WikiLeaks and its founder, Julian Assange, got a lot of attention over a video it had obtained of an American helicopter firing on civilians in Iraq, including two Reuters freelancers. Ultimately, though, it proved to be the wrong kind of attention — the heavy-handed editing made it appear more like an anti-American propaganda film than documentary evidence. (WikiLeaks also released a longer, unedited version.)

By contrast, in providing the latest documents to news organizations, Assange was able to get out of the way and let credible journalists tell the story. Jay Rosen, in a characteristically thoughtful post about WikiLeaks (“the world’s first stateless news organization”), thinks Assange did it because he knew the story wouldn’t get the attention it deserved unless the traditional media could break it.

I don’t disagree, but I think a more important reason is that the public will take it more seriously.

Also: At the Nation, Greg Mitchell has been rounding up links about the WikiLeaks story here and here.

The Globe and the Pentagon Papers

By Dan Kennedy

On June 22, 2008

In Uncategorized

Former Boston Globe editor Matt Storin writes about the Globe’s role in publishing the Pentagon Papers.

Given that the case led to a landmark Supreme Court decision extending freedom of the press, it’s interesting to ponder the note on which Storin closes. He quotes Daniel Ellsberg, the Defense Department employee who stole the documents and gave them to the press, as saying that today he’d simply upload them to the Internet.

Where, indeed, you will find them now.