The Media and National Security
The Wayne Law Review, Vol. 53, No. 3, Fall 2007
19 Pages Posted: 1 Jul 2008
Date Written: July 1, 2008
This article arose from my research in preparation for my role as moderator of a panel, "The Media and National Security," which was a part of the Symposium, "Issues in the War on Terror: Investigations, the Media and Article III Courts," sponsored by the Wayne Law Review on November 16, 2006. The participants on the panel were William Harlow, the former Chief Spokesman for the Central Intelligence Agency, Dana Priest, a Pulitzer Prize winner and Washington Post Reporter, covering the intelligence community and national security issues, and Adam Liptak, the National Legal Correspondent for the New York Times. In the course of the article I will refer to certain points that were made during the panel discussion, but I have made no attempt to obtain statements or specific information from the participants on the panel.
In the discussion of the media and national security we begin with the First Amendment, not only with its legal doctrines and principles, but also with the values of the First Amendment and its function in a free and democratic society The article first discusses how the First Amendment protects the media with respect to its disclosure of information purportedly affecting national security. There is no national security or state secrets exception to the First Amendment, and with very limited exceptions, the government cannot prevent or sanction the disclosure of information by the media on the ground that the disclosure is harmful to national security.
The article then discusses the process by which the media voluntarily refuses to publish information on the ground that the disclosure of the information will seriously harm the national security. The panel discussed this matter extensively and explored questions such as how do government officials go about suggesting to reporters or editors that they not disclose information on grounds that the disclosure will harm national security; how do reporters and editors deal with requests to not to disclose and how do they decide independently that certain information should not be published for reasons of national security.
Although the panelists presented different perspectives, they agreed that it was rare for the government to try to persuade the media to refuse to publish an entire story. Rather, the government's concern was to prevent the publication of particular information contained in a story. A typical situation was the government saying to a reporter, "We have a real problem with this story. Can you take some facts out of the story?" Facts that the government typically wants to remove from stories are those relating to location or assistance from foreign governments that those governments would prefer to keep secret. From the standpoint of the government official making the request, it is "Trust me on this one." From the standpoint of the editor - the request not to disclose always goes to a top editor "- it is a matter of trying to accommodate the request by winnowing down the story to "what is really important." In the final analysis, editors maintain that it is their responsibility to decide whether or not to publish information that the government maintains is harmful to national security. While this notion has been criticized in summer quarters as authorizing the media to "publish military secrets in wartime," the author contends that if the media's publication of "government secrets in wartime" somehow impedes the government in its "war on terrorism," this is the price that we have chosen to pay for living under a constitutional system in which the value of freedom of expression takes precedence over other values, including the value of national security. The positive side of the equation is that the government cannot operate in secret, that its actions are subject to public scrutiny and criticism, and that the pressure of public opinion, sometimes manifested in Congressional action, may force a change in government policy.
Third, the article discusses the relationship between the government and the media with respect to obtaining information that may affect the national security. One of the points made during the panel discussion was that the media and the government are not always engaged in an adversary relationship, with the media wanting to publish information and the government wanting to keep the information secret. Sometimes government officials, in order to advance the government's purpose, voluntarily disclose information to the media, so that the media will assist them in conveying the government's message to the public. Often the information is disclosed surreptitiously, without identifying the governmental source, so that it is best described as an "authorized leak." At these times the government-media relationship can become very symbiotic, and the media's publication of the information that the government wants to convey to the public clearly serves the public information function of the First Amendment.
The government-media relationship becomes adversarial when the media obtains "unauthorized disclosures leaks" from officials inside the government. The panel discussed the matter of unauthorized "leaks" and the reasons why a government official would "leak" information to the media. These reasons were sometimes personal, such as that the government official felt important because he or she was approached for information by the media or that the official had a good working relationship with the reporter and wished to help the reporter with a story. Sometimes the reasons were in the broad sense political, such as that there had been bureaucratic infighting, and the official disclosed the information in order to advance that official's position, or that the official believed that the government was doing something very wrong, and wanted to disclose the information in order to advance what the official believed was the "public interest."
The article goes on to discuss the fact that the media has no constitutional or statutory way under the Freedom of Information Act of obtaining defense or foreign policy information that the government does not wish to enclose. At the same time, the government can require reporters to disclose information about national security matters or otherwise, notwithstanding that it was obtained from confidential sources, since reporters have no First Amendment right to refuse to disclose such information, and there is no federal shield law.
The article concludes by emphasizing that we live under the First Amendment and that the doctrines and values of the First Amendment govern the media and national security in American society.
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