Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
My friend Steve Walt weighs in against media patriotism. But he gives the game away, I think, when he says: “There are undoubtedly some narrow circumstances when a patriotic journalist should decline to publish something they have learned, such as the details of an upcoming military operation or the location and timing of some secret diplomatic meeting.” For once he acknowledges this, he is in the line-drawing game. I assume that Steve would also not encourage publication of an ongoing, lawful, and secret military or intelligence operation that, if reported, would directly endanger lives. My sense is that once one adds this exception to publication to the one he describes, one is in about the place where most American national security journalists are, most if not all of the time. I don’t think there are many if any situations beyond these categories, in the national security context, where American journalists self-censor. (I do not know enough about the Raymond Davis situation to know whether Davis fits in one of these categories, but it is plausible, or at least might have seemed so to the New York Times.) And I assume that Steve draws his exceptions for the reasons I stated in my second post on this topic: because of a valid judgment that the concrete harms of publication outweigh the benefits. Which means that Steve thinks, in at least some circumstances, that there is a balance to be struck, a balance that journalists must consider. Steve adds a clear caveat to his self-censorship exception: “[I]n general, we ought to discourage reporters and scholars from allowing national attachments to get in the way of dealing us what they know.” I fully agree with this, and so too would every journalist I know. My perhaps-too-provocative use of the term “media patriotism” to describe the reasons for national security self-censorship was not meant to suggest – as some have taken it to suggest – that journalists do or should self-censor whenever it helps the home team. As I tried to make clear, the self-censorship exception is (and is conceived by journalists to be) a narrow one, and in general the American media reports many more national security secrets about the American government than its global colleagues do about their governments. Most of the criticisms in this country about the American media’s national security publication record – including my own criticisms – are that they publish too much, not too little. A final point. Steve and Glenn Greenwald are right that one limitation on journalistic “objectivity” is the symbiotic relationship between the American media and governmental sources. (The best description of this relationship remains Max Frankel’s affidavit in the Pentagon Papers case.) This is a dangerous relationship for all the reasons they describe. But there is another side to the story. Journalists get most of their secrets from government officials. Extracting these secrets sometimes requires the development and maintenance of relationships with the officials. And sometimes, I am sure, journalists don’t report something newsworthy because they don’t want to burn a government source for the next story. It is a messy process, full of trade-offs and errors, and one fraught with the danger of cooptation. But from Steve’s and Glenn Greenwald’s perspective of wanting maximum possible disclosure, it is hard to imagine a better alternative. For if we somehow ended the process of reporters developing and protecting governmental sources in ways that Steve and Glenn Greenwald find objectionable, many fewer secrets would be reported. The messy American system in the aggregate does a remarkable job, unmatched anywhere in the world, of keeping the public informed about secret U.S. government activity.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
United States v. Donald Trump, Walt Nauta, and Carlos De Oliveira
The special prosecutor’s report is the product of a three-year investigation into claims of Russian meddling in the 2016 election.
The prospect is a nightmare for the intelligence services.