An Alert Press [Barf Alert]

Oversight of the government's national security policies is needed now more than ever.

The Decision on whether to publish information that government officials assert would damage national security is one of the gravest choices a newspaper can face. There may be times when editors get it wrong, either printing material that proves harmful or withholding information that should have come to light. But these are risks that the Constitution contemplated and that the Framers were persuaded were worth tolerating to ensure a free and vigorous press.

Justice Potter Stewart stated this trade-off well in a concurring opinion in the Pentagon Papers case 35 years ago. "In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry -- in an informed and critical public opinion which alone can here protect the values of democratic government," he wrote. "For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For, without an informed and free press, there cannot be an enlightened people."

The wisdom and perspective of Justice Stewart have been conspicuously lacking in the recent uproar over reports about secret government programs. The latest and most vituperative yet involves the decision by the New York Times and other newspapers to publish stories detailing the administration's examination of private banking records. We recognize that this was a controversial choice. But that does not excuse the politicians who have responded with press-bashing that scores political points at the expense of constitutional values.

Didn't the pentagon papers case have to do with prior restraint? That's not the issue today.

The New York Times has the right to print whatever - they can slander a private citizen, steal copyrighted material, reveal secrets. No prior restraint is needed. And that's good. I don't want a censor sitting in a newsroom deciding what we can read and what we can't read. Under Clinton, if there had been "prior" restraint we never would have heard of a blue dress. A censor would be sitting with Drudge too. No one wants a censor sitting in a newsroom. That would be wrong.

But that doesn't mean that the Times is above the law. The private citizen who was slandered can sue - and will win. The owner of copywrited material that the Times printed will sue - and win. And, in a saner world, if classified information was printed that helped the enemy in time of war, charges would be brought for treason. Newspapers have the right to print, but not the right to print outside the law.

The Times most likely has a high priced first amendment lawyer - and he's consulted when the Times thinks they might break the law. The Times, like most companies doesn't want to be successfully sued. That attorney would consul them not to slander a private citizen, not to print copywrited material without permission etc. That attorney was probably consulted in this case. We will never know what he said, but the results of that meeting are clear - the decision was made to publish. No legal problems. The Times felt there was less downside to this than printing a freelancers copy without permission.

Publishing classified information was not a legal threat to them. The threat was to the nation - but not to them. And that's wrong. Way out of balance. Publishing classified information that helps the enemy in time of war, should carry the highest concern - not the least.

I imagine Keller laughing saying, "yeah, American men will die because we've printed this - and maybe American citizens will die because of this - but it's no skin off our nose. They can't touch us -- and besides it sticks it to George Bush..." Bush has a right to be angry about his. His job is to protect us - the Times has shown a reckless disregard for the laws dealing with national security.

Our safety, the safety of the American people, received less respect than a young freelance writer would receive. This is wrong.

Any President's team - Republican or Democrat should never have to go, hat in hand during time of war, to beg a newspaper not to publish. That's wrong. The line is in the wrong place.

Here's what's sad -- if the Times lawyer had been asked if it's OK to print some two bit freelancers material without permission, the answer would have been NO. There should be equal concern for printing national secrets. But there's not.

Not that the Times can't "print" them, (freedom of the press matters) but they should know there will be hell to pay for the privilege. My feelings? The FBI should arrest the publisher and editor, allow them to bail out, and have this issue decided in a court of law. Maybe next time the Times attorney will tell them, "yes, you can publish - and if it's crucial you must, but there will be hell to pay - you could be arrested for treason. So think about it long and hard."

That would require soul searching... And that would be right.

The Washington Post neglects to tell its readers what Justice Stewart wrote right after the quotation they cite: "Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense the frequent need for absolute secrecy is, of course, self-evident."

And Justice White, in his concurring opinion, wrote:

"What is more, terminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way."

And later,

"The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 [note 5] makes it a crime to publish certain photographs or drawings of military installations. Section 798, [note 6] also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems [736] or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations.[note 7] If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they [737] publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint."

Justices Potter and Stewart made absolutely clear, in their concurring opinions, that there is no established Constitutional restriction on prosecution of a news organization after publication has taken place.

The Washington Post is remiss in its reportorial responsibilities for not bringing this to light.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.