After Snowden: Privacy, Secrecy, and Security in the Information Age (2015)
HODDING CARTER III
HODDING CARTER III is Professor of Leadership and Public Policy at the University of North Carolina, Chapel Hill. He came to that post after nearly eight years as president and CEO of the John S. and James L. Knight Foundation, which has a major interest in media freedom and improvement. A longtime reporter and editor on his family’s daily newspaper in Greenville, Mississippi, he joined the Jimmy Carter administration as Assistant Secretary of State for Public Affairs and Department Spokesman. In 1980, he left the State Department and was among the founders and anchor/chief correspondent of Inside Story, a PBS program on media criticism. His PBS work won four national Emmys and an Edward R. Murrow Award. He is the author of (or contributor to) eleven books, and a contributor to many major newspapers at home and abroad. He has served on the boards of the Center for Public Integrity and the Reporters Committee for Freedom of the Press.
There gets to be a point when the question is, whose side are you on? Now, I’m Secretary of State of the United States and I’m on our side.
—SECRETARY OF STATE DEAN RUSK
WHAT FOLLOWS IS based on sixty years of experience in public life and journalism. It arises from deepening concern about the people’s limited appreciation of the First Amendment and disgust with media waffling behind timidity’s breastworks. It also arises from urgent unease about government overreach in the name of “homeland security,” an overreach based on post-9/11 fear, political opportunism and an all but explicit assertion that a free people do not need to know and should not demand to know how they are being protected. There is no pretense here of carefully allocated balance, that briefly treasured convention of American journalism. Instead, this is an attempt to explain the evolution of today’s media-government confrontations and to suggest answers to the hard questions that currently face the press when national security clashes with the Bill of Rights.
Unless informed consent is to be treated as a dangerous relic of more tranquil times, these questions should be answered on behalf of the American people as often as they arise. That means applying general principles to specific cases. Knowing the evolution of press freedom can be useful. Having an accurate picture of the chaotic realities of the murky present is crucial. Hard cases are inevitable; hard-and-fast rules are rarely available and too often inapplicable to current conditions. In the end, as always, it is up to each journalist and news organization to be willing to stand alone, to ask, and to answer individually:
“Whose side are you on?”
* * *
When Edward Snowden’s breathtaking leap off the high board made its first splash, most public and media reactions featured shock and outrage, even among those appalled by the scope of the government’s electronic eavesdropping that he revealed. A minority applauded. A smaller minority yawned. But public ambivalence all but vanished within a month. Consecutive polls showed growing numbers giving emphatic thumbs-down. “You weren’t acting on my behalf,” they seemed to roar.
Not much surprise there. It wasn’t Pearl Harbor and it wasn’t 9/11, but selective media use of Snowden’s huge cache of stolen NSA files seemed to give obvious aid and comfort to America’s enemies and a black eye to the nation. The images of the collapsing Twin Towers were still vivid. No surprise to friends and family, either, when my snap reaction was rage. The ex-Marine, “Gunboats Carter” persona was in full swing. Hang first, try later. It was self-evident that Snowden was a traitor.
Having worked for and with government officials from federal marshals to Presidents for over five decades, I knew that they and I were in lockstep solidarity. Contempt and consternation were near universal, both about Snowden’s betrayal of the public trust and about media publication. They—we—saw both as flaunting a cavalier disregard of legal and moral obligations to safeguard vital national security secrets. As then-National Security Administration Director General Keith B. Alexander claimed, Snowden’s revelations were causing “the greatest damage to our combined nations’ intelligence systems that we have ever suffered.”
The critics did not wear jackboots. Among them were former college classmates who had spent considerable time in the national intelligence enterprise, children of the mid-century who knew where their duty lay. They were vehemently certain that the electronic excavation of private as well as public records was as constitutional as it was vital. They were proud of their response in younger days to the call of duty, knowing the fragility of freedom and the ferocity of its enemies. The new world disorder seemed confirmation enough that questions about their mission were for academic seminars only.
And then I changed my mind, though God knows the generally uninspiring media reaction was not responsible. It is hard even now to fully appreciate how many press commentaries either saluted the official line or fell back on patronizing, snide dismissals of Snowden’s character and intelligence. Those who supported him were few and far between, though vigorous in their support. Among them were The New Yorker, The Guardian, The Washington Post, Vanity Fair, McClatchy newspapers, and Knight Ridder. To others overlooked in that summary listing, my apologies. Those who decided to go forward with their coverage deserve sustained public applause. They took significant chances when they pressed the print button and revealed the NSA’s dirty linen. Of no less importance, they sounded the alarm, warning the American people anew of how much further down the road to an all-intrusive garrison state Washington had ventured.
The number of major media organizations and figures who twitched at every government accusation was appalling. For the more pompous, Snowden and his media shepherds were unworthy intruders in the grand game of serious journalism and commentary. Planted in a self-referential clique, it was all but unnecessary for them to grapple with the meaning of a government that conceived, created, and operated a secret high-tech vacuum cleaner to suck the meaning out of the Fourth Amendment.
According to what the conventionalists wrote or said, Snowden was an immature, self-aggrandizing exhibitionist. He was no one with whom you might wish to have a conversation while supping in intimate dinners with Washington’s powerful. Not of Le Carré’s world, he was the distasteful new man of the onrushing technological dystopia, doing what he did because he could. Why he said he did it was secondary if not irrelevant; it was an irritating sideshow. Don’t look at that man behind the curtain, they all but shouted. Look at the boogeyman.
As for the three reporters he entrusted with portions of the material, were they chosen because he trusted them to use it wisely? They were enablers of the unthinkable or traitors themselves. It was a hard position to maintain, since they were varied in background and outlook. Snowden apparently picked each because of what he saw as their unsparing coverage of government’s rogue activities. They include Laura Poitras, a left-wing freelance television producer whose previous work had stirred waters, and Barton Gellman, a mainline journalist who had won two Pulitzer Prizes while working for The Washington Post. The most prolific was Snowden’s tireless Boswell, Glenn Greenwald, a columnist for the British newspaper, The Guardian. He was, and is, unrestrained in his free-swinging indictment of what he considers to be mainstream media’s absence without leave from the fray. Major press heavies returned the compliment, labeling him a radical nouveau whose rants outran reason. To reread their snide fulminations is to realize that the best antidotes to arrogance are looped replay or a long memory.
The great bulk of the print press ran wire service accounts, as usual, along with Washington-based and Washington-influenced commentary purchased on the cheap. Attention must be paid to the exceptional precursors to Snowden whose stories sparked threats of prosecution, smears from the far right, and outright denials from the President. Among them, New York Times reporters Eric Lichtblau and James Risen shared the 2006 Pulitzer Prize for national reporting for exposing President Bush’s approval of warrantless domestic wiretaps. In the same year, Dana Priest of The Washington Post won the Pulitzer for stories revealing that the CIA ran foreign prisons where terrorists and those suspected of terrorism were tortured. It should also be noted that many secondhand accounts leaned heavily on Gellman, Greenwald, and Poitras.
The new world of the Internet was more diverse and more extensive, but of mixed quality. Politico and the Center for Public Integrity offered first-rate if sporadic work. To reread most of the blogs, our outliers of an inevitable future, is to weep for their strident ignorance. The networks and cable news at first ran all-out with the startling revelations, but then, as though exhausted by their close encounter with meaningful news, pulled over to concentrate on missing airliners and celebrity journalism. Public TV and radio did a more consistent job, Frontline most particularly, but some major figures admitted that Washington influenced the tone of their coverage as well.
The horde of talk show reactionaries came baying from their ideological kennels to snap and snarl across the land. Snowden’s sympathizers were “useful idiots,” to use the former Soviet phrase, just as Fox’s propagandists had been saying all along. The terrorists had a fifth column within America. Debate over; gong-show commentary, interminable.
It is easy to understand their overwhelming nastiness. Whether they knew better or not, they knew their employers and they knew their audience. It is a defense unavailable to those segments of the establishment press who ducked when the hard balls came in high and close. Perhaps it was too much to expect that they would suddenly fall off their asses on the road to Damascus.
The relatively pallid media reaction stung. While government service and politics have consumed decades of my life, journalism, my first and last great love, has consumed even more. Short form, long form, television or print, and now the world of the Internet, I have seen them as the great bedrock and protector of American liberty and freedom. Small town and big city, reporter, anchor, editor, publisher, or columnist, all taught the same lesson. The Bill of Rights gave the press, like every citizen, previously unthinkable freedom to speak truth to power. As the Founders saw it, without the media, the public would be forever blinkered. Without it, government could do as it invariably prefers: conceive, organize, and implement policy decisions untrammeled by the opinions of those it is supposed to serve.
It sounds corny, like Mr. Smith Goes to Washington, but the Founders were right. Thomas Jefferson famously wrote: “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”
However, Jefferson had different things to say after the vicissitudes of office, and it is easier to recite July Fourth rhetoric about the inexorable march of American liberty than to remember how frequently it has been called into question by the Founders and lesser men alike. Remarkable breakthroughs in press and individual rights have been met and leapfrogged by stunning expansions of government power. Seventy-five years of hot, cold, and open-ended war have taken their toll. “The first casualty of war is truth” is an aphorism that goes back over a hundred years and is validated anew in every conflict. The press has repeatedly crossed lines visible and invisible that the government thought sacrosanct. The government has repeatedly responded with measures that defied the Constitution.
The language on both sides has frequently been absolutist; the outcomes, less absolutist, but always recorded as victories or defeats. When the first encounter took place in America toward the end of the seventeenth century, there was no doubt. It ended in total victory for the side with the guns and padlocks. On September 25, 1690, the first edition of Publick Occurrences Both Foreign and Domestic was published in Boston as America’s first newspaper. Publisher Benjamin Harris promised to provide as many accurate accounts of domestic and foreign happenings as he could obtain. On September 29, his first press run became the last. The governor and council of Massachusetts “suppressed and called in” as many copies as it could. The authorities asserted that Harris’s four-page sheet, one left blank to allow space for subscribers to use as they wished, had contained “reflections of a very high order” (gossip about the French king’s sexual dalliances) and “sundry doubtful and uncertain reports” (i.e., accounts of the slaughter of French prisoners by Britain’s Mohawk allies). Both stories were widely understood to be true. Thereafter, not only did Massachusetts newspapers have to pay for the privilege of publishing, nothing could be published without prior approval.
Much has changed in the written and unwritten laws about press freedom in the intervening 425 years. Much has not. “Fraught” is the right word to describe the ups and downs of press-government encounters ever since. If journalists do not know that most public officials think of them as the Europeans long thought of the Germans, as either at your feet or at your throat, then they are willfully blind. Personal friendships can have little to do with it; professional responsibilities, everything. Veteran government officials know that each relationship with the press must be negotiated and renegotiated; good reporters know that permanent alliances with sources lead to captivity, the kennel dog instead of the hunting dog. A press that cares about its responsibilities to a free, self-governing people and a government elected to safeguard the security of the state are bound to clash.
So the question posed earlier becomes encrusted in unavoidable complexity. How far should media push the envelope? Preceding Snowden, a decade of cases ranging from Abu Ghraib to WikiLeaks, from CIA torture camps to NSA snooping on Americans, left the envelope hanging off the edge. A succession of court decisions based on government’s assertions of national security pulled it back. And then the seriatim publication of carefully selected top secret information, a fraction of the total under Snowden’s control, shoved it off the table and onto the public thoroughfares.
Snowden’s decision was illegal and would have been if only one document had been at issue rather than hundreds of thousands. Many highly professional journals found the theft and its predecessors a cause for concern. The New York Times squelched a report in 2005 that won its team a Pulitzer in 2006. No less professional, those who disagreed felt their primary duty was to the free flow of information. Their chief client was the public, rather than the temporary custodians of the state.
That can sound self-righteously pretentious. It may be monumentally wrong. But error is a frequent companion of choice, and most people, whether in public service or the media, do not strap on their shields in order to weep in the face of tough choices. Presumably they do it to serve a nation, its people and the principles that undergird both. And also presumably, they were hired or elected not as gods or mandarins, but as imperfect human beings who usually must decide long before certainty emerges. In the meantime, they must call it as they see it.
Right or wrong ethically, wasn’t the decision to accept top secret material and then to publish it illegal on its face, or at the very least, unacceptable? Many in the media felt that question had been answered forty-four years earlier with the Pentagon Papers. That case was widely celebrated by free press advocates, but far more narrowly decided on the core issues than memory allows. Supreme Court Justice Hugo Black gave the absolutist answer for the press, as he always did:
In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so it could bare the secrets of government and inform the people. To find that the President has “inherent power” to halt the publication of news … would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make “secure.”
Writing for the Justice Department’s Internal Security Division, Robert Mardian laid out the government’s basic contention and demand:
I have been advised by the Secretary of Defense that the material published in The New York Times on July 13, 14, 1971, captioned “Key Texts from Pentagon’s Vietnam Study” contains information relating to the national defense of the United States and bears a top-secret classification. As such, publication of this information is directly prohibited by the provisions of the Espionage Law, Title 18, United States Code, Section 793. Moreover, further publication of information of this character will cause irreparable injury to the defense interests of the United States. Accordingly, I respectfully request you publish no further information of this character and advise me that you have made arrangements for the return of those documents to the Department of Defense.
Though the press won, Richard Nixon never went gently into that good night. In an interview with David Frost a few years later, the former President restated his losing case in terms that the second Bush administration’s inner circle were to make their own: “When the President does it, that means that it is not illegal.” On the day after the split court decision on the Pentagon Papers, Assistant Attorney General Richard Kleindienst warned a Washington Post reporter that if the press didn’t back off, “The President is going to pick up a stick and start fighting back. I know he would go to the people on this. If he does, the big issues of the 1972 campaign may not be Vietnam or the economic situation, but whether an arrogant press is free to undermine the security of this country without check.” Sic Snowden. No matter how the individual case presents itself, the language on both sides deviates very little. (“The stick,” inter alios, included my old TV debating partner, Pat Buchanan, and Vice President Spiro Agnew, the latter turning out to be too rotten even for this rotten assignment.)
It has been a long time since I had responsibility for news choices and somewhat longer since I handled top secret and other classified material while State Department spokesman. However long ago, my ruminations on both subjects march forward today preceded by former Secretary of State Dean Rusk’s exasperated challenge to the press a half century ago that opens this chapter: “Whose side are you on?”
The question is a sneering restatement of that older bit of mindless chauvinism, “America, love it or leave it.” For me the acceptable—the necessary—alternative refrain has always been, “America, love it or change it.”
For rank upon rank of civilian and military officials, there is only one correct answer to Rusk’s question. They are dead wrong, not because their obsessive/compulsive desire to make reporters salute every classification stamp is always wrong, but because the classification system is ludicrous in its assumptions and practices. Five post–World War II presidential commissions, the most recent one chaired by Senator Daniel Patrick Moynihan of New York, came to similar and remarkably consistent findings. Too much government material is classified. Too much that is classified is classified at too high a level. As Supreme Court Justice Potter Stewart wrote over forty years ago, “When everything is classified, then nothing is classified. And the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.”
The roots of the current classification go back to the early 1950s, though there were much earlier government attempts to protect national security information. (Much of what immediately follows is based on The Papers and the Papers, an invaluable book by Sanford Ungar, a man of many press hats who recently retired as president of Goucher College.)
President Eisenhower issued Executive Order 10501 on November 5, 1953. It gave permanent status to some existing wartime rules and emergency regulations, proclaimed its purpose to be “Safeguarding Official Information in the Interest of the Defense of the United States,” and established the categories of “top secret,” “secret,” and “confidential,” each of which is defined and detailed. In the category of “Who Are You Kidding?,” the order urged that “unnecessary classification and over classification shall be scrupulously avoided.” That earnest admonition was then followed by decades of promiscuous expansion in the number of departments, agencies, and individuals allowed to control classification. The Tennessee Valley Authority, the FCC, the Peace Corps—name the office, guess the number of papers classified by each over time. What you do not have to guess is that the growth of classified files has been exponential. Several Presidents, the latest being Mr. Obama, have issued executive orders on classification aiming for “clarity” and common sense. All were followed by more classified pages.
It is important to note how little Congress has had to do with any of it outside the small select oversight committees, which tend to be enablers rather than the public’s ombudsman, and had been sporadic in their oversight until 9/11. (Irony was redefined with added emphasis when the CIA was caught rifling the files of a congressional oversight committee whose chair was one of its chief defenders. The agency’s director first angrily denied the allegation, then grudgingly coughed up an apology. The chair was not amused. The President, who should have fired the director, also coughed.)
A final indictment by a man who knew firsthand what he was talking about. Going much further than I feel competent to venture, former Air Force security official William C. Florence, in testifying to the House Foreign Operations and Government Information subcommittee in the midst of the Pentagon Papers controversy, said:
I sincerely believe that less than one-half of one percent of the different documents which bear currently assigned classification markings actually contain information qualifying even for the lowest defense classification under Executive Order 10501. In other words, the disclosure of 99.5 percent of those classified documents could not be prejudicial to the defense interests of the nation.
A few facts add weight to skepticism about the seriousness, security, and efficacy of today’s classification system. According to the June 10, 2014, USA Today, 4.9 million people have some form of security clearance; 1.4 million of them have top secret clearance. Top Secret Americareported that 850,000 Americans have top secret clearance, including 250,000 private contractors. The figures clearly are not precise and vary from source to source, but the conclusion is the same. It should not be a surprise that in 2004, 15 million new pages were classified.
The Intercept, an online magazine, reported that some 26,800 U.S. citizens and permanent residents are on a federal database of those having alleged links to terrorism or who are terrorists. The Directorate of Terrorist Identities listed among its accomplishments in 2013 the construction of a database of over 1 million suspected or actual terrorists. Command and control may be possible with such numbers, but there is little public evidence available to assess its probability. What is available are the examples of breakdown and impermissible excess.
I was a small-town editor in Mississippi, far from Washington, when Rusk spat out his rancorous query, but I recognized what he was saying when I read it. As with the racist refrains of my time and place, it was a naked proposition: Our side is the side of America, of our way of life. Questioning what we say and do gives aid and comfort to the enemy. You are either a patriot or a traitor, you are either for us or against us. You either accept the most troubling ramifications of current American policy, or you are an enemy of the state, an ally of international ______. (Fill in the blank, but do so quickly. The axis of evil tends to change overnight these days: see the Middle East.)
Not everyone in the press was offended. Rusk gave a speech to the American Society of Newspaper Editors in Atlanta in which he assailed The New York Times and other antiwar newspapers as irresponsible, error-laden, and unpatriotic. He was given a rousing, roaring vote of approval by most of the crowd, who were cheering and clapping at length as though they were defense contractors rather than newsfolk. I grabbed a floor mic to protest angrily that the Times record on truth and error, as opposed to the government’s, was as day to night, and that he knew it. Loud boos. One of my fellow believers in free speech, a Scripps Howard man, told me I was anti-American scum.
While the press and government are both products of a Constitution designed to safeguard liberty, they are not the same. Their roles and responsibilities differ mightily and carry within them inherent conflict. To paraphrase the great Yale law professor Alexander Bickel, it is presumably in the conflict that the public interest and the truth will be best served.
Like Secretary Rusk, at the end of day I know which side I’m on, though I’m proud to say I’ve worked on both sides of a couple of streets. For several years in the late 1970s I was State Department Spokesman and Assistant Secretary of State for Public Affairs. The job was well worth its frustrations if for no other reason than the education of Hodding Carter. It sorely perplexed a number of friends and critics who felt that going over to “the dark side” would destroy my integrity and my reputation. Perhaps some felt vindicated from time to time when I got it wrong, but there was no professional blackball when I left State to work as a press critic for public television. Being on the government side did not make me feel any more soiled than working the press side. As a journalist, I represented what I took to be the public interest. As spokesman, I felt I was doing no less. I was never asked to lie, and never did. Vigorously articulating the government’s position did not fall in the Constitution’s shadow any more than vigorously pushing for more information than the government wanted to provide.
In daily press briefings as spokesman I tried to wrestle the press and public’s view of the travails and triumphs of U.S. foreign policy into approval at best and indifference at worst. As assistant secretary, I was responsible for supervising the creation and dissemination of a wide range of information outside the briefing cycle. We put out country reports, speeches by various department officials, FBIS (Foreign Broadcast Information Service) texts of foreign policy pronouncements by friends and foes, and, not incidentally, answered the mail. Some of this was propaganda, some was the relay of information from other sources, some were straightforward attempts to keep Americans and foreign nations up-to-date on where U.S. policy stood. Some of this openness came as the result of congressional demands.
Wearing the same hat, I ostensibly ran the department’s freedom of information process. That is, I ran it until someone in authority belatedly noticed that as an editorial writer I had previously been an open government nut. Whoever he was, he squeaked loudly and maneuvered the FOI office out of my hands and into the more constipated bowels of the Administration Bureau. For the record, FOI is a remarkably useful tool for prying information out of a reluctant government, but even more remarkably, it is an underutilized tool. Business interests use it far more often than reporters and news organizations. It can take forever and frequent requests to get an answer, but the materials set free are often of real importance—not least because they expose official lies of major significance. Lyndon Johnson, who tried hard and often to restrict or manipulate the flow of public information, was the man responsible for passage of the FOI act, for which credit is due.
The office of the historian was my responsibility, too, which made it impossible not to notice that the official history of the nation’s foreign policy was so behind its required publication mark that the last volume published on my watch dealt with Woodrow Wilson’s attempts to keep us out of war. Congress has mandated that publication of the annual reports should be no later than twenty-five years old. There is and was no way to exaggerate the intelligence community’s mulish role in repeatedly blocking timely declassification of material necessary to meet the mandate. They were bureaucratically sincere in worrying that premature publication could turn off allies, endanger agents, and reveal too much about intelligences sources and methods, but their specific justifications often made no sense at all. It didn’t matter. Alleged national security interests repeatedly trumped; emphatic assertions too often passed for evidence.
In both roles, I had frequent access to highly classified materials, few of them of the highest order, but close enough to give me adequate evidence for a judgment about their worth. Once I stopped being dazzled by access, I came to the lasting conclusion that you could throw at least 90 percent of all classified material onto the street and whistle for the press and spies to come get it—and nothing of any real consequence would result. A little embarrassment here, a compromised initiative there, a bit of time for official blood pressure to subside, and the sun would rise again in the East. Google can attest to how many others, similarly situated over the years, agree with my estimate. They are legion. (See William Florence above.)
Then and now the best way to guarantee that classified material will be given heavy press play is to pitch it over a news organization’s transom and wait for the front page lead story that begins, “The Herald-Times has learned…” Leaking is the preferred Washington sport, ahead of the beleaguered Redskins or the remarkable Nationals. The most prolific leakers sit in the highest offices, starting with the Oval and its immediate satellites. Preferred media conduits include both legitimate news outlets like The Wall Street Journal and The New York Times, and blatantly dishonest propaganda organs such as Fox News. But men and women who work in the midlevel offices have been prime players, too, and the axes they grind are at least as likely to be sharpened for the public good as a President’s. In my experience some of the leaks most useful to public understanding have come from these sources.
Leaking, like prostitution, will forever be with us because it is beneficial to all participants. Its chief drawback is that it is primarily a Washington insider’s game, a tribal telegraph system as well as a backstabber’s delight whose players and signals are hard for the general public to comprehend.
Barry Schweid, AP’s longtime diplomatic correspondent and one of the funniest and most cynical men I have ever known, would look up from one of those so-and-so has learned pieces (more often than not in The New York Times) and snarl, “‘The Times has learned.’ ‘The Times has learned’? Does that mean that one of your guys threw it through the window or just handed it over at lunch?” Jealous competitors were much given to calling the Times America’s Pravda; some still do with a somewhat different meaning.
Of course, there is leaking and then there is leaking. There is a difference between the Manhattan Project and Cabinet arguments about the future of food labeling. So here goes another slightly overstated assertion drawn from personal experience: The ratio of leaks that are harmful to national security as opposed to those whose chief results are embarrassment or temporary advantage for an inside warrior come in at roughly 1-to-10,000. There hasn’t been a President in my lifetime who has not used them; there is not a President in my lifetime who has not cursed them. There has not been a President who didn’t order his staff to shut them down or find the culprits, with President Obama high on the list. There has never been a President, no matter how disciplined his inner circle, who has succeeded except at the margins. And there has never been a White House press corps that sooner or later did not complain about each administration’s “unprecedented clampdown,” all the while giggling behind their hands.
Every so often the press also professes outrage when it is discovered that a presidential administration has ordered lie detectors be used to squeeze out the identity of leakers. It’s also fun to be able to say you are “shocked, shocked” by such high-handed tactics. Very infrequently the lie detector gambit works and some poor devil has to walk the plank. Mostly it is a waste of time, either because the leaker knows how to game the exercise or, more often, because the wrong people are examined. I leaked frequently, occasionally at the behest of the President’s men, more often to fire back in the ceaseless conflict between the State Department and the National Security Adviser’s office. Since my boss, Secretary of State Cyrus Vance, did not approve of what he considered a schoolboy’s game while the National Security Adviser loved it, it was usually a losing exercise for “our” side. Every now and then I’d lob a big one over the White House fence, and it was immensely gratifying to hear of Mr. Brzezinski’s screams as he demanded the culprit’s scalp. Since I refused as a matter of principle to submit to a lie detector test, I don’t know what the consequences might have been. I can only say no one I knew was ever weeded out because the graph went crazy.
There were despicable leaks, of course. Robert Novak’s column blew the cover off CIA Officer Valerie Plame, whose offense was that her husband had written a report contradicting claims of bomb-useful material in Niger. As I told Ronald Goldfarb in his book In Confidence, “The dirty little secret of that incestuous closed circle of beat reporters, well-placed columnists and official sources who do their horse-trading out of sight is that officials get their propaganda and reporters get their hot story.” Of course, Plame lost her job, and the leaker never lost his. More recently, a number of NSA employees or officers were run out of their jobs and one run into jail, because of alleged misuse of classified material. It more than occasionally appears that in high governance and politics, the only standard is the double standard.
Which returns me to Snowden and the post-Snowden era. Almost every commentary on Snowden’s appropriation of masses of classified information and his decision to release a fraction of them overlooks a very large elephant. What he did was all but inevitable. If not him and not then, another Snowden would have come along shortly. The dike holding America’s ocean of secrets has been spilling over the top for a long time. With WikiLeaks and Chelsea/Bradley Manning and Julian Assange, it crumbled. The flow of secrets became the flood of the century. The only meaningful debate was about how much damage had been done to U.S. security interests, individuals, policies, and allies. Snowden would later argue that he was no Manning, and that he had been carefully selective in what he released and how it was curated. A distinction without a difference, the government replied with considerable force. As of this writing, the public still does not have a clue as to approximately how much material Snowden whisked away, a question that is certain to have concerned the government more than the people.
The point is that Snowden’s appropriation and then release of a portion of the NSA’s crown jewels only confirmed rather than established that we live in a world in which tidy lines between those who “own” information and those who toil with it, like Snowden, between labor and management, have blurred. To repeat what was said during the Pentagon Papers showdown, give too many people security clearance and classify too much information, and normal government is incapable of plugging the holes in the security dike. The biggest of Big Brothers might be able to do it, but aside from the constitutional issues, free men make bad slaves. Snowden’s wholesale theft and the subsequent press coverage illustrate how a half century of dramatic technological change, near perpetual conflict, and governmental abuse of power have overturned old media conventions and subverted old assumptions about unqualified support of a government in wartime. The king is larger and infinitely stronger than he has ever been, but the cats who care—alley to parlor—are warier and faster than ever and multiplying exponentially, far beyond the bounds of traditional media. Eye to eye, from issue to issue, there is no safe bet on who blinks first. The safe bet is that there will be a number of cats jumping the line.
Like Presidents before him, President Obama came into office pledging that there would be more transparency and that he intended to tighten and lighten the classification rules and procedures. What emerged in 2009 was Executive Order 13526. The record of its effect is mixed and the language both more rigid and more permissive than that of its predecessors. The categories remain the same, but declassification is at least formally encouraged. The President, meanwhile, like other would-be reformer Presidents, seems increasingly in thrall to the panic-driven instincts that produced the Patriot Act and the Homeland Security Act. He has wielded an iron fist despite his softer language. Of the eleven attempts to prosecute journalists under the Espionage Act of 1917, contrary to legislative understanding and precedent, seven have come since he was elected. More have been threatened.
There can be no argument that terrorism, red of fang and claw, is not a real threat to American interests and to Americans at home and abroad. It is an even more lethal threat to those who live in or near its perpetrators’ homelands. As real as the old Soviet menace? Not a chance. As real as the Axis powers when they seemed on the verge of taking control of Europe and the Pacific? To ask is to answer. The dead at the Twin Towers cry out for retaliation and revenge, at least in my ears, and they have been given it several fold over. Do they also cry out for the curtailment of liberty and the use of domestic police state tactics?
That there are too many people entitled to classify information is a given. That too many people of all sorts of backgrounds have relatively easy access to highly classified information is equally true and calls into question the evolving structure of the secrecy state. Privatization of military and security functions is a danger by definition. Any free market theologian should be quick to admit that the point of the enterprise system is to make money. Among other things, that means controlling costs. The point of the military enterprise is to protect the nation, and cost-cutting is not or should not be among its top priorities. A man in uniform or direct government employ is one kind of entity; a person who comes aboard for the money and the game is another. There are 60,000 civilian contractors in the NSA. There are 30,000 civilian employees.
The first leak is lost in the mists of unrecorded history. There are, however, plenty of pertinent examples. Benjamin Franklin, tucked comfortably in a London sinecure in the run-up to the Revolution, leaked a story to a Boston newspaper, which got him run out of town. George Washington, worried about the press obtaining the deliberations at the Constitutional Convention, told delegates, “I must entreat gentlemen to be more careful lest our deliberations get into the newspaper.” Some president between Teddy Roosevelt and Barack Obama may have never leaked, but it is hard to know who it could be. Even Calvin Coolidge used a nom de plume to release the news he wanted out.
Leaks aside, experience in the newsroom and in the public sector convinced me that government more often than not tells the truth. That said, it is a conviction that must be paired with Ronald Reagan’s famous saying, “Trust, but verify.” It must also be paired with the sobering history of direct lies and misstatements aimed at misleading the public.
The most egregious recent one was President Obama’s on the Tonight Show with Jay Leno on August 2013: “We don’t have a domestic spying program. What we do have is some mechanisms that can trace a phone number or an e-mail address that is connected to a terrorist attack.” A National Security Adviser here, a CIA Director there, and an administration spokesman across town, and the list begins to add up. As Snowden observed, you don’t know what you don’t know, and press and public haven’t known enough of what is being done in America’s name to demand accountability.
For the super patriotic son of a super patriotic father, the fact that government lies and misuses its power has been a hard proposition to swallow. I was the kid who felt frequently impelled to recite from Sir Walter Scott’s “The Lay of the Last Minstrel”:
Breathes there the man, with soul so dead,
Who never to himself hath said,
This is my own, my native land!
I could let go almost simultaneously with Emerson’s “Concord Hymn” and Lincoln’s Gettysburg Address. I joined the Marines to serve and protect, and the “Gunboats” nickname was tagged during a one-year journalism fellowship at Harvard, because I repeatedly argued that the Munich analogy fit Vietnam exactly. Over the years I was a member of the board of Radio Liberty, that erstwhile CIA broadcasting service aimed at the Soviet Union, and a clutch of other Cold War–related enterprises, about all of which I have no regrets. In other words, I am an American who might be expected to accept the case for all-out war on terrorism with whatever curbs on freedom that entails, but I can’t and won’t.
The main reason is that virtually all of my experience in press and government has led me to the conclusion that good people in a good system can still do stupid things, as noted above, and that officials driven by ideological demons can do terrible things. To pick a name at random, there is and was Vice President Dick Cheney, who never met a self-serving lie that he didn’t like or a war he couldn’t justify.
The absurdities of the security system itself were an early drag on my enthusiastic cheerleading for the official line. The person responsible for vetting officers for top secret clearance at Second Marine Division let it be widely known I’d never make it, that my father was a “known nigger-loving Communist.” I got the clearance, but I never had a chance to get at him. Many of the classified messages I decoded on the antique crypto machines in the Communications Center were rewrites of that morning’s press reports about the Marines’ Lebanese venture of 1958. Some of my Basic School classmates were serving there, having gone ashore to be met by the friendly fire of sweet young things selling iced Cokes. Ike had ordered the amphibious show of force as an answer to the overthrow of Britain’s puppet regime in Iraq. He hoped to protect the pro-Western Lebanese government from the effects of Iraq’s contagion. If that sounds familiar, it should. It was the U.S.’s fateful introduction to the Middle Eastern tar baby.
They taught me in Basic School that you couldn’t win a down-and-dirty local war with high-altitude bombing. It would take boots on the ground, grinding it out. (Not then the phrase of the moment. We talked about troops then.) Basic was right, American intelligence and the official line were wrong, but until the bombing began in the mid-1960s, I held fast to the faith: We either had to beat them in Vietnam or we would have to meet them in California. Then, as the big bombers began to dump their loads, I bailed out. Much as I would like to pretend otherwise, it was not a moral decision. Marine doctrine, and the evidence on the ground, outweighed the Kennedy-Johnson doctrine and their administrations’ claims of success in the battle for hearts and minds through the bomb blasts. The reporting from Vietnam also played a huge part. By the mid-1960s, a press corps unhampered by the censorship was able to send out informed firsthand accounts calling the official line into question.
Later, the abuses of government surveillance cut directly across my grain. Cochairman of a biracial delegation from Mississippi that was seated in place of the all-white regulars at the 1968 Democratic Convention in Chicago, I savored the unprecedented victory. Others did not. It was much later we learned that J. Edgar Hoover had apparently decided that our mix of radicals and all-out integrationists, Young Democrats and labor, was by definition a threat to American values. As part of his COINTELPRO program to infiltrate black organizations in particular, but left-wing ones in general, he had convinced a white member of our delegation to play snitch, snoop, and agent provocateur. His code name was “Captain Magnolia” and he was as smooth a lying bastard as you could want. The Lord knows there was a lot of incendiary talk coming from our delegation, but luckily, no incendiary action. It doesn’t really matter. What matters is that Washington thought it appropriate and necessary to spy on private citizens exercising their right to free assembly and free speech.
How did we find out? Because a tiny group of antiwar pacifists broke into an FBI office in Pennsylvania and stole bushels of material. Some of it detailed the COINTELPRO operation. Law breaking uncovered law breaking, proving that old adage that “it takes a thief to catch a thief” has more than one application. Their justification was Snowden’s.
From the past comes the present. Taking their cues from the feds, state and local governments are also in the surveillance game these days, some at a sophisticated level. Mississippi, then a leader in black shirt innovation, was at it in the 1950s and 1960s with its own secret police, the State Sovereignty Commission. The Commission’s stated task was to protect “our way of life,” which meant defending de jure segregation and white supremacy.
Its tools ranged from placing misinformation in the region’s most rabidly racist news outlets, to working with segregationist organizations to force nonconforming professors and students to get in line or get out, to planting informants in the integrationist groups, wiretapping, and the occasional bit of goon work.
In other words, emulating the professional practices of their federal betters.
The Commission supported boycotts that cost our paper subscribers and advertisers all across the Delta, and a legislative hearing featuring a professional anti-Communist who testified that Dad was a member of Communist-front organizations. Yet labels to the contrary, we were white moderates and it was neither easy to sell the smears to our neighbors nor easy to overlook the well-known fact that all Carters carried guns all the time. Black folks were much easier targets. It was no secret that Mississippi was a closed society in which the Constitution need not apply.
Seeing the Sovereignty Commission record laid out in neat lines of type was a special kind of shock all the same. The import of the Snowden files was equally shocking for many of his fellow citizens, even for Americans who had long assumed that their government was tapping more than it was telling and were glad that it was. Its enormous appetite for information about private citizens with no record or accusation of terrorist sympathies was as unexpected as it was nauseating. You could almost hear people saying, “This is America, for God’s sake,” even as they called for Snowden’s scalp.
Why this retelling of old tales? To help explain how I would react as an editor if confronted by government demands that I withhold classified information from print. I would expect that the first questions would be, “Who elected you declassifier in chief? Are you confusing yourself with the President? Stop the presses.” (If you think that is exaggerated, read the record of the Pentagon Papers drama.)
To which I hope my response would be: “Back off and push the restart button. We stand on a playing field leveled by the Constitution. You can ask, but not demand. I don’t automatically salute. And speaking of unilateral, who gives you and your superiors the right to do in the dark what has long been considered un-American activity? We may come to eventual agreement, but not without much more conversation. Why have you and yours lied so frequently about this activity, activity your bosses don’t even bother to deny anymore? Don’t patronize me and the American people by adding to the shameful record.
“I hope we can work out a mutually acceptable agreement, but automatic acquiescence is off the table. Here’s what I think I know. Tell why it is U.S. policy. Tell me who authorized it. Explain its purposes and its potential consequences as well as its necessity. I want you to be right, but assertion is not enough. After the last fifty years, ‘Trust me’ isn’t going to hack it.”
To be clear, the decision to print would not be automatic. Having known SOBs in government and in the press, I would not begin the exercise believing truth and virtue are automatically on one side or the other. Most whistleblowers I have known have been truth-tellers as they see it. Some, however, have been aggrieved losers, looking for revenge, carrying a long knife long whetted by jealousy or the sense that their brilliance is not appreciated. Some of the fast-rising Washington wunderkinder, the Praetorian Guard intellectuals, impressive résumés in hand, use their shivs for self-promotion as well as the security of the state. When they come calling to push a point, the best response is a polite smile and a request that you meet with a decision maker. Others are exactly what you would hope of a public servant. They have a job to do, and they do it with civility and intelligence.
The conviction that the bad guys are evil, not victims, would also be sitting on my shoulder. They must be put out of business. That said, it must be done in ways that allow a nation to look at itself in the mirror each day without wincing. To violate the privacy of tens of millions of Americans in hopes of finding a hitherto unidentified possible terrorist is not acceptable. That is profiling to the extreme. You exist; therefore, you are a suspect.
To which the reader should now mutter impatiently, “Alright, alright. So what would you do? Quit meandering and get down to it.” My answer would be the same as Gellman’s and Greenwald’s and Poitras’s, not to mention the people to whom they answered. Put it through the sieve, decide what needs to go and what needs to be held back, and then let it rip.
Conservative Republican Congressman Jim Sensenbrenner of Wisconsin is a proud sponsor of the original Patriot Act. He believes it has been perverted by both President Bush and President Obama, “whose intelligence services took the limited power Congress intended and went rogue.” Ignoring explicit requirements to the contrary, he wrote, the intelligence community has used the act to “justify vacuuming call records from millions of innocent Americans.… The bottom line is: bulk collection would never have been authorized.” It is nice to believe and welcome news that he has been trying to put belief into action by leading an effort to rewrite and tighten the act.
The other bottom line still tastefully neglected in various quarters is that without Snowden, it might have been a cold day in hell before the record became the subject of public debate. Or, as suggested earlier, it might not have taken that long, given the number of secrets and the number of people who have access to them. That is conjecture on horseback. Snowden says he did what he did because the American people need to know what the government is doing to violate some of the nation’s basic tenets. I agree with him, and they need to know now, not in that far distant future when the Archives finally get their hands on some of the most startling records in American history. If the people are going to regain meaningful control of their government, the first step is transparency. That was among the most important of the Founders’ operating assumptions, built into the Bill of Rights and expanded thereafter.
Only the lunatic right believes Edward Snowden is a spy, a long-buried sleeper emerging to destroy the republic. Nor is he a Manning, or a Julian Assange, blowing everything loose on the Internet. He went the traditional route and gave the material to reporters he thought he could trust to do the right thing. They did, spending months to verify his near-unbelievable story and his bona fides. As journalism, it was a model of professionalism as well as a staggering scoop.
Just to close the circle, there is no evidence that Snowden was bought. There have been so many CIA and FBI agents who recently sold out their country for money as to make that a likely explanation. If it were true, or even partially believable, however, it would have made the leak circuit long ago. He does not believe in a radically different form of government from our own. What you see and what you hear is what you get. He believes so passionately in the American creed that he put his life and liberty on the line to expand its perimeter.
There is no question about whether he broke the law. By self-admission, he did. There is also no question in my mind about the man as person. From everything I read and see, he is a patriot.
Snowden is also the tip of a huge iceberg. Given the nature of our outsourced security (one contractor is reported to have cleared 15,000 people for classified access in one week) and our insatiable appetite for more and more classification, another Titanic looms ahead. You cannot lock a ton of cheese in a basement safe, put the keys on top, and come back expecting to find it still there. The temptation to crack down with a vengeance might be irresistible. Before it is too late, and it may already be too late, a fundamental rethinking of the security state/free press/free people matrix is required. It cannot arise by osmosis. As with the long “Great Debate” about the United States’ proper role in the world after World War II that scuttled isolationism and ushered in the long era of internationalism, what is required is a structured national conversation in every venue available, from the grand buildings of government in Washington to local courthouses and the proverbial barbershop.
We have arrived at the cusp of a garrison state by fits and starts, on a long arc that bends steadily toward a far different America from the one the Founders envisioned or would have tolerated. Unlike Argentina under the junta, Russia under nearly everyone, and China forever, it is not too late to reverse course. It may ask too much of today’s media to play as key a role in reviving the democratic experiment today as the far more primitive press played in birthing, nurturing, and cheering on what became that unprecedented creation—a democratic Republic with majority rule and a Bill of Rights. I think that is defeatist nonsense. The fire bell is ringing. There can be no certainty about final answers, but there is absolutely no excuse for allowing inertia to make the big ones. Edward Snowden has proved it.
EPILOGUE AS NIGHTMARE
But what of Snowden the person? He is a dead man walking. When Putin tires of toying with him, he will be dumped onto foreign soil to await his highly trained American rescuers. Unlike Bin Laden, he may make it off the pickup zone alive. He may survive the trip, though it is not hard to fall out of a helicopter door. He may be diverted into some rendition rendezvous where he can be tortured enough to make him confess that he is the Islamic State’s number one man. He may even be given a jury trial by his peers, perhaps in Washington, though I would bet against it. Dangerous at large, he becomes even more dangerous when Big Media are shouting questions about Big Data and he is answering them. Since Gitmo is forever, I’d be least surprised to see him become our version of the man without a country, the permanent prisoner/exile. It would be unsettling, but not unlikely, that the man who knew too much would become the man no one remembers.
Getler, Michael. Assorted ombudsman columns. Washington Post, 2002–2004.
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Lichtblau, Eric. Bush’s Law: The Remaking of American Justice. New York: Anchor Books, 2008.
Priest, Dana and William Arkin. Top Secret America: The Rise of the New American Security State. Boston: Little, Brown and Company, 2011.
Risen, James and Eric Lichtblau. “Bush Lets U.S. Spy on Callers Without Courts.” New York Times, December 16, 2005.
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