Curbing the Press
Why the government and the media haven't been this antagonistic since the Pentagon Papers case
The disillusioned young Pentagon analyst whose leak of top-secret documents provoked one of the nation's most dramatic showdowns between the press and government is now 75 years old. His hair is white, and he wears bifocals.
But Daniel Ellsberg's life remains defined by his historic role as the "leaker in chief"--his own description--who in handing over to the New York Times and the Washington Post the classified Pentagon Papers during the Vietnam War contributed to the ultimate demise of the Nixon administration. These days Ellsberg--still an energetic activist--finds himself watching with a mix of fascination and alarm as reporters and the Bush administration careen toward another possible constitutional showdown over the guarantees of the First Amendment and the powers of the president during wartime.
Confrontation. On June 13 it will have been 35 years since the New York Times began publishing excerpts from the voluminous Defense Department documents provided by Ellsberg. They revealed the military's decades-long strategy in Southeast Asia and its clandestine effort to expand the Vietnam War. The Washington Post followed days later. The blockbuster disclosures and decision by two influential newspapers to publish the documents despite fierce legal pressure from the Nixon administration unleashed a high-stakes wartime confrontation not seen before or since. Until, perhaps, now. "There are so many dimensions that are almost an exact replay," Ellsberg, an ex-marine, said in an interview in Washington, where he'd come from his home near Berkeley, Calif., for the funeral of a fellow veteran.
And yet, 2006 is not 1971. The atmosphere feels distinctly different, the concept of national security more ominous. While the Pentagon Papers may have dominated the news of their day, now myriad press/government conflicts are grabbing headlines. With a more conservative federal judiciary, the realities of a post-9/11 world, and enduring public skepticism toward the media, the Bush administration appears convinced that this time the scales might just tip in the government's favor.
The struggle has the feel of a multifront war--a string of conflicts Lucy Dalglish of the Reporters Committee for Freedom of the Press calls "the worst I've seen in 30 years." The tension has renewed debate about how far the First Amendment goes to protect reporters who base stories on leaked information that may uncover wrongdoing but could compromise national security.
Nixon invoked national security when he asked the high court to stop the presses to prevent publication of Ellsberg's documents. Bush administration lawyers have avoided Nixon's unsuccessful tack--the U.S. Supreme Court in the Pentagon Papers case said the government failed to meet the "heavy burden" required to censor the press. But the administration has moved aggressively on other fronts, investigating leaks it asserts have harmed national security, firing a CIA officer suspected of leaking, and even suggesting that reporters could for the first time be prosecuted under the 1917 Espionage Act.
"We're seeing battles between the press and government playing out more frequently and heatedly than in the past," says Eric Lichtblau, the New York Times reporter who, with colleague James Risen, last year broke the story about the National Security Agency's secret warrantless domestic spying program. The FBI is searching for sources who provided Risen and Lichtblau with information that officials said damaged national security, and it remains possible the pair will be called before a grand jury and ordered to reveal their sources. (Both say they will protect their sources.) Meanwhile, the CIA is trying to find out who leaked information to Washington Post reporter Dana Priest for her Pulitzer-winning story about secret U.S. prisons overseas for suspected terrorists.
"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."
That argument resonates with much of the public. But Geoffrey Stone, a University of Chicago law professor, says the administration is experiencing its own credibility problem. "The stakes are rightly perceived as higher, but the distrust of the administration among the public, the press, and even some judges may be higher than at the time of the Pentagon Papers." A May Gallup Poll found the public evenly divided on whether the news media should report information they obtain about secret methods the government is using to fight terrorism.
Journalists are discovering that many of the "rights" they thought they enjoyed--the ability to protect sources, access information, and publish with impunity--rest on shaky legal ground. Since the Pentagon Papers, presidents have tightened their grip on information and argued that they can keep secrets even from Congress and the courts. This administration has been particularly assertive in classifying documents historically in the public domain.
And it is not inconceivable that journalists could be jailed for publishing government secrets. In the Pentagon Papers case, Justice Byron White suggested that the government could prosecute leakers or the press under criminal laws such as the Espionage Act--an opinion the Bush administration clearly has embraced. But despite a few recent convictions of leakers, prosecuting reporters is still practically unheard of. In one 1942 exception, prosecutors hauled the Chicago Tribune before a grand jury for revealing that the United States had advance warning of a Japanese attack, though the courts never ruled on whether it would violate the First Amendment to use the act to charge journalists.
A reporter's right to protect anonymous sources is also limited. The high court ruled in 1972 that reporters could be compelled to identify their sources, and in the past few years several reporters have been held in contempt for refusing.
On Capitol Hill the competing interests are also in play: Proposed legislation would criminalize the leaking of a broader swath of classified information; another proposal would shield reporters from revealing confidential sources and information, though not protect them from subpoenas. The most troubling development for the press may be Gonzales's suggestion that, for the first time, journalists could be prosecuted under the Espionage Act, which makes it a crime for unauthorized receipt and transmission of national defense information. "It's a law that has never been defined," says longtime investigative reporter Walter Pincus of the Washington Post. Though Gonzales has said that his focus remains on leakers, when asked during a recent television interview whether he foresees cases that prosecute journalists, he said that existing law would allow prosecution for publishing "certain kinds of classified information."
Strategy. Pincus says he would advise media advocates to work on getting that ambiguous 89-year-old act rewritten instead of pursuing shield laws whose protections are typically narrow. He has written extensively about the administration's use of the act to charge two pro-Israel lobbyists with receiving national defense information through conversations. It's a case that gives the willies not only to journalists but to lobbyists, academics, and others whose daily exchanges could lead to charges of receiving unauthorized national defense information.
Says Stone: "All speech has consequences, and if that becomes the test, then they can prosecute all speech." Has all this cast a chill on reporters and their sources? Pincus insists it hasn't. "People who worry about cooling of sources don't deal in this area." However, although most publishers have dug in their heels, there is evidence that some are thinking twice about running stories based on leaked documents: The Cleveland Plain Dealer last year held back a story based on a leaked FBI memo because of the pursuit of reporters in the Plame case.
Ellsberg believes there will be no turning back if Bush lawyers start prosecuting sources and journalists and criminalizing leaks. He says he'll continue agitating to convince leakers to come forward, particularly those with knowledge of Bush's Iran strategy. Ellsberg knows the stakes are high: Branded a traitor by Nixon, he faced up to 115 years in prison for violating the Espionage Act. The charges were dismissed when it was revealed that government agents had broken into his psychiatrist's office to search for documents to discredit him. "I was saved," he says, "by their crimes." Reporters may not be so lucky.
This story appears in the June 12, 2006 print edition of U.S. News & World Report.