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# Posted 12:47 AM by Ariel David Adesnik

NYT DEFENDS ITSELF FROM THE PRESIDENT: The event of the moment is North Korea's decision to test fire six ballistic missiles, but I just got home from an extended stay in New York, so I haven't had time to read much yet. Over the weekend, however, it was the NYT's decision to publish classified information about a fully legal counter-terrorist program that provoked the most debate.

On Saturday, the op-ed page was dominated by a joint column written by Times executive editor Bill Keller and his LA Times counterpart Dean Baquet. On Sunday, ombudsman Byron Calame provided his own defense of the Times, accompanied by some partisan sniping from Frank Rich.

[I'm guessing you need a subscription to read these columns, but I don't know that for a fact, since the NYT cookie on my laptop automatically recognizes me. You'd think, however, that the Times would want to provide the largest audience possible with access to its self-defense.]

Before commenting briefly on the Keller/Baquet column, I though it might be interesting to point out an anecdote buried in the Week in Review that neither Keller nor any of his comrades-in-arms chose to mention. Correspondent Scott Shane wrote that

Katharine Graham, the publisher of The Washington Post who died in 2001, backed her editors through tense battles during the Watergate era. But in a 1986 speech, she warned that the media sometimes made "tragic" mistakes.

Her example was the disclosure, after the bombing of the American embassy in Beirut in 1983, that American intelligence was reading coded radio traffic between terrorist plotters in Syria and their overseers in Iran. The communications stopped, and five months later they struck again, destroying the Marine barracks in Beirut and killing 241 Americans.

"This kind of result, albeit unintentional, points up the necessity for full cooperation wherever possible between the media and the authorities," Ms. Graham said.

I wouldn't be surprised if there were more to that story, but I think it still serves as a sober reminder that even the best-informed journalists may not be able to judge whether the publication of official secrets is in the public and the national interest, or only in the newspaper's interest. Yet the core of Keller and Baquet's self-defense is that:

We weigh the merits of publishing against the risks of publishing. There is no magic formula, no neat metric for either the public's interest or the dangers of publishing sensitive information. We make our best judgment...

Making [such]decisions is the responsibility that falls to editors, a corollary to the great gift of our independence. It is not a responsibility we take lightly. And it is not one we can surrender to the government.

I believe it is precisely the other way around. Our elected government determines what information is classified and what isn't. It cannot delegate that power to private citizens, journalists or otherwise.

Keller and Baquet invoke the freedom of the press, but never present even the semblance of an argument as to why the First Amendment entails a license to publish classified information.

With only a minimal working knowlege of constitutional law, I am incapable of making any precise argument as to why publishing classified information is not a protected right. It would seem to me that it falls broadly into the category of libel or slander or shouting "Fire!" in a crowded theather. It is one of the very few sorts of speech that isn't protected, because it represents a tangible threat to other individuals.

I hope that those of you with some legal expertise can help me out here, or that the rest of you can recommend some good posts or articles on the subject.

(22) opinions -- Add your opinion

Comments:

I agree with your sentiment. Although the press may serve as a fourth check and balance at times, there needs to be a more distinct rational for disclosing classified information than just an aversion to the administration's policies.

# posted by

Anonymous : 2:09 AM

What then should be done if an administration begins to classify information solely for political reasons? Just because information is "classified" doesn't mean it is sensitive enough that revealing it would harm our counterterroism efforts. Should the only people who are allowed to decide that be the same people who classified it in the first place and the same people who benefit politically from controlling that information?

# posted by

Anonymous : 4:26 AM

Anon 4:26:

Stick to the NYT's latest foray into "the peoples right to know" It is clear that their desire to attack Bush overides any notion of the safety of the country.

I would also like be interested in knowing whether the NYT has any financial interest in its journalists books.

# posted by

Anonymous : 5:28 AM

I haven't followed the Times' defense very closely - has the editor ever used the term 'agonized" - as in - 'I (we) agonized over whether or not to publish'?

I love when people use that line - because they expereinced 'agony' their choice is not just unimpeachable but unrviewable. It simply has to be the right choice - they 'suffered for it'.

# posted by

Anonymous : 10:01 AM

Why do you assume that a newspaper or any other media outlet should be loyal to a nation state? Would you react the same way if a Chinese newspaper published information that was legally classified by the PRC government?

# posted by

Anonymous : 10:34 AM

Does anybody really think the reporting of this story has damaged US national security? Hasn't the administration been boasting on a regular basis about its tracking of financial transactions since 9/11? Do we really think the terrorists are stupid enough to think that the US wasn't trying to monitor any financial transactions they made? But the administration jumps on this NYT story because it enables them to rely on the trusty, old, banal stand-by argument that the liberal media relishes making this country less secure.

If the administration is so upset about this appearing in the NYT, then perhaps they should look in the mirror first. Somebody leaked this information to the NYT before it was reported.

# posted by

Anonymous : 10:47 AM

A 10:47:

The Administration did not explain how they were doing things. The NYT and its enablers went to far.

# posted by

Anonymous : 11:45 AM

Anon @ 10:34: Why do you assume that a newspaper or any other media outlet should be loyal to a nation state?

If a newspaper has no allegiance to a nation-state, then it seems to me that they have no claim on the protective powers of the nation-state.

# posted by

Jody : 11:52 AM

Keller and Baquet invoke the freedom of the press, but never present even the semblance of an argument as to why the First Amendment entails a license to publish classified information.

You have it bass ackwards. Heres what the First Amendment says

Congress shall make no law .... abridging the freedom of speech, or of the press;

Now, lets parse that statement. What does "no law" mean ? Could it mean, gasp, gasp "NO LAW" ?

In short, it is not the responsibility of Keller & Co. to "present even the semblance of an argument as to why the First Amendment entails a license to publish classified information.". It is up to people like you to explain why no law does not mean "No Law".

Bob Woodward's 70s book Brethren on the Supreme Court of that era, has an interesting story on the Pentagon papers case. When the attorney defending the NYT was arguing in Court, he was asked whether the NYT would still have the right to publish if it lead to the deaths of
American soldiers. The counsel for the NYT said that probably not. Upon which Justice Douglas thoroughly lambasted the counsel for not believing in the First Amendment. Later, Justice Black said to Justice DOuglas that it was a shame that the NYTimes could not find someone who believed in the First Amendment in the court. Too bad we don't have th elikes of Black and Douglas on the SUpreme Court now.

# posted by

Anonymous : 11:53 AM

What does "no law" mean? As I said, I know little about constitutional law.

But clearly, there are a number of uncontroversial limitations on free speech, such as laws regarding libel, slander, and the proverbial "fire" in a crowded theater.

Could anyone provide the constitutional basis for those restrictions?

# posted by

Ariel David Adesnik : 12:00 PM

I see it all now. WHen the NYT publishes the Wen Ho Lee story (which turned out to be false), badly hurting CLinton, and probably destroying the presidential ambitions of Bill Donaldson, its not a sign of the NYT attacking Clinton.

And when the NYT publishes a dozen Judy Miller stories (almost all of which turned out to be false) about WMDs in Iraq, which greatly help the Bush administration's case for war against Iraq, that is not a sign of the NYT's brown-nosing Bush.

But of course an NYT story revealing a government program -- that has to be anti-Bush.

# posted by

Anonymous : 12:02 PM

But clearly, there are a number of uncontroversial limitations on free speech, such as laws regarding libel, slander, and the proverbial "fire" in a crowded theater. Could anyone provide the constitutional basis for those restrictions?

Look at this URL

http://caselaw.lp.findlaw.com/data/constitution/amendment01/

It has a big discussion of various free speech limitations and the justifications, including cases.

I still believe that most of the justifications (including so called "hate speech") are not constitutional.

Justice Black was famous for saying that "no law" meant .. "no law".

# posted by

Anonymous : 12:09 PM

It's interesting that you point out the gov't program was apparently legal. I agree, and that seems relevant to the question of whether the Times should have chosen to publish it. I don't see its relevance to the question posed by your post, however: whether the publication of classified information should be protected speech.
I wonder if you're letting your disagreement with the Times' decision confuse your support for a particular reading of the First Amendment?

# posted by

Anonymous : 2:26 PM

jody wrote: "If a newspaper has no allegiance to a nation-state, then it seems to me that they have no claim on the protective powers of the nation-state."

so, allegiance to the nation-state is the condition for having free speech?

# posted by

Anonymous : 4:02 PM

David,
Wow, that anonymous is busy.
Anyway, your posting of the WaPo' late publisher, Katherine Graham, was inspired.
While the Left seems to think the "Freedom" to print covers anything they want it to, except, of course, campaign finance.
Eugene Volock finds Justice Stevens both time travelling and mind reading. A must read!
http://volokh.com/archives/archive_2006_07_02-2006_07_08.shtml

Mike

# posted by

Anonymous : 8:46 PM

"The Administration did not explain how they were doing things. The NYT and its enablers went to far."

Clearly, you have never made any international banking transactions.

My immediate response would be "who cares if the administration didn't explain HOW they were doing it? That they've said for five years that they were spying on international transactions should be enough, right?

I'd expect the response would be "Well, because the Times leaked the method, then the terrorists would find a way around it."

The fact is, that's impossible. The only thing the Times revealed was that they were tracking the Swift program, which gives identification numbers to every transaction. However, the Swift program is no secret to anyone engages in such transactions. When you transfer money to an overseas account as I have (to family... don't get any wrong ideas, people), you get a message that reads "Your Swift identification no. is _______" (or something to that effect.) So, a) you can't get around the Swift database when making a transaction, and b) it's not a secret. They spy on transactions by tracing the Swift ID numbers? Gee, I think most of us versed in such banking practices had figured that one out a long time ago.

So, what exactly was the secret info the Times revealed that was a detriement to this program, is what I'm not understanding.

# posted by

Anonymous : 9:05 PM

Also odd is that I didn't see - either in this blog posting or anywhere on the comments page - the words "Los Angeles Times" or (gasp!) "The Wall Street Journal". They printed the same story on the same day. In fact, when the story broke, I read all about it in the LA Times.

So why does the NY Times and ONLY the NY Times get the entire full force of everyone's wrath? Forgive me if it seems a little suspect.

# posted by

Anonymous : 9:08 PM

Was "LA Times" not good enough for you? Did I have to write out "Los Angeles"? (Second line, second paragraph.)

Anyhow, the LA Times is second fiddle, so it doesn't get equal treatment. And I believe the WSJ got the story after the others had already published it, but haven't verified that.

# posted by

Ariel David Adesnik : 10:04 PM

You know what I mean.

The only mention I see of the LA Times is that their executive editor co-wrote a column with Keller in the NY Times last Saturday. Nothing is mentioned that the LA Times also published a story about the banking program. Obviously my statement was in reference to that.

And what does it mean, the LA Times is "second fiddle"? In terms of what? In terms of the reporting? Tony Snow said the NY Times were the first to investigate, while the other two papers were late in getting on board. I don't know if that's true - what he knows may not be accurate - but even if it is, so what? Isn't the issue, the "harm", in making the story public, which the papers did simultaneously? Do you mean "Second fiddle" in terms of clout or quality? I don't think most people would argue that, but again so what? Could the LA Times use that as a successful defence against treason charges? I doubt it. Whether the paper is second fiddle or third fiddle or second banana, I hope you're not seriously suggesting that if publishing the story is harmful to national security, a publication gets a pass because they are deemed inferior to other publications.

And yeah, the Wall Street Journal did publish the story on that same Friday:

http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1002726989

"The Los Angeles Times and the Wall Street Journal also carried stories on the snooping operation on Friday", it says. I'll leave it to you to decide which fiddle the WSJ is.

I would think all three papers deserve equal opprobrium. And again, it's very suspect that only the NY Times is singled out. What next, suggestiong that their Travel section is trying to get Cheney and Rumsfeld assassiated?

# posted by

Anonymous : 11:14 PM

David,
I'm pissed as blogger went nutsoid on me as I tried to preview my comment, so now, in my declining years, suffering from short term memory loss (it helps me forget I'm getting Alzheimers)I have to try to remember what was so important I had to comment.
Oh, yeah!
The WSJ story was, according to numerous web sites, given them by the Admin. after they learned the "Two Times" would ignore their entreaties to put the Nation above their petty political machinations.
LAT just got beaten to the story by the NYT. Reporters and editors at both rags have shown they are in the terminal stages of BDS.
Don Luskin links to a really good thought on this imbroglio.
Still Mike Daley at Mikhal_@hotmail.com.

http://www.poorandstupid.com/2006_07_02_chronArchive.asp#115203564602865736

# posted by

Anonymous : 11:40 PM

"The WSJ story was, according to numerous web sites, given them by the Admin. after they learned the 'Two Times' would ignore their entreaties to put the Nation above their petty political machinations."

Can we say 'mouthpiece?'

# posted by

Anonymous : 8:20 AM

Mr. Adesnik,
No matter that I'd agree with your NYT publishing official secrets comments, I cannot agree with your "Fire" (in a crowded theater) aside. The idea that "shouting fire in a crowded theater is illegal, even under 1st amendment strictures is actually false. At least in the usual (universal?) attribution of the phrase to Mr. Justice Oliver Wendell Holmes' aside in a 1919(?) opinion (Schenk vs US?in which Holmes and the court held for Schenk's rights). (my reference lost (search O. W. Holmes). What he said in relation to what speech might be found against the law, giving as an example: "FALSELY shouting fire in a crowded theater". The omission of that first crutial word has been misinforming us for nearly a century (probably misgiven purposely). I find it repeated endlessly, by persons who are usually trying to make some silly point or other, and should know better.

# posted by

Anonymous : 12:11 AM