Curbing the Press
Why the government and the media haven't been this antagonistic since the Pentagon Papers case
"Abuse of power." Other cases have made clear that reporters have little or no special claim to protect their sources. Friday, five news organizations including the Times and the Post agreed to pay nuclear weapons scientist Wen Ho Lee $750,000 to settle a case that probably would have sent their reporters to jail. They had refused to reveal sources for stories about an espionage investigation targeting Lee. Such a payment is believed to be unprecedented. Federal officials, with Attorney General Alberto Gonzales's approval, ordered the San Francisco Chronicle reporters who broke the Barry Bonds steroids story to cough up to a grand jury sources who leaked them court documents linking the slugger to drug abuse. (Mark Corallo, an ex-Justice Department spokesman under former Attorney General John Ashcroft, called the subpoenas "the most reckless abuse of power I have seen in years.") And FBI agents went to the home of the late Washington columnist Jack Anderson in an attempt to search his files for the identities of his sources.
The investigation into who leaked then CIA operative Valerie Plame's name has put numerous reporters on the spot. Several were called before a grand jury investigating the leak; those whose sources released them from confidentiality identified them. Former New York Times reporter Judith Miller refused and was jailed. The case involves an administration leak to discredit a critic, not one to expose wrongdoing. It's an "ugly case," says Dalglish, that has muddied the debate.
However, President Bush is not the first to push the limits of his constitutional power. It was Franklin Roosevelt's attorney general who said, "The Constitution has not greatly bothered any wartime president." John Adams jailed critics for sedition; Woodrow Wilson supported the imprisonment of political dissidents during World War I; Roosevelt confined Japanese-Americans in internment camps.
The Supreme Court did not emerge as a vigorous First Amendment guardian until the 1960s and 1970s, when it granted the press broad protection against censorship and libel suits. With narrow exceptions--such as publishing troop locations--the Pentagon Papers case and a 1931 predecessor erected a "virtually insurmountable" barrier to government censorship, says Jane Kirtley, a University of Minnesota law professor. Ben Bradlee, the Post's former executive editor who oversaw the paper's coverage of the Pentagon Papers, says he "thinks that things have been going the press's way in the past 25 years or so."
But not anymore. Even Ellsberg acknowledges that there is at least one distinct difference between now and 35 years ago: "Unlike Vietnam, we now have a real threat to citizens at home, so there's an incentive on the part of the administration to take police measures here." And that's the administration's argument. Bush has forcefully defended his pursuit of leakers and the need to keep war-on-terror intelligence secret. "Every time sensitive intelligence is leaked, it hurts our ability to defeat the enemy," he said last month. "Our most important job is to protect the American people from another attack, and we will do so within the laws of our country."
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