Commentary: Clamping down on freedom of the press

Introduction

The tension between power and the press, between spinning and searching for truth, between disinformation and information, is of course endemic to the human condition itself. And in trying times like these, when it occasionally looks like things are going to hell, it is strangely consoling to recall that actually others before us also have traveled on what must have seemed to be the road to perdition.

For example, 33 years ago, a President and his administration were prosecuting a difficult, unpopular war thousands of miles away on foreign soil, keenly attempting without great success to control the media’s access to information, particularly of the unfavorable kind. Two newspapers, The New York Times and The Washington Post, each began publishing a leaked, secret Defense Department history of the Vietnam War that dramatically revealed government deception and incompetence. The Nixon administration went into federal court against the two news organizations, separately, and, citing national security and charging treason, managed to halt publication of the “Pentagon Papers” until the U.S. Supreme Court, on June 30, 1971, sided with the First Amendment by a vote of 6-3.

While Washington Post executive editor Ben Bradlee was, among others, understandably exultant and relieved, he also recognized, as Bradlee later recalled in his memoir, A Good Life, that he had just stared into the abyss, “For the first time in the history of the American republic, newspapers had been restrained by the government from publishing a story—a black mark in the history of democracy… What the hell was going on in this country that this could happen?”

Certainly a common refrain among many journalists these days as well, but to finish the flashback, the Pentagon Papers episode obviously was just the beginning. Bradlee at the time did not know the answer to his own question, except that “the Cold War dominated our society, and… the Nixon-Agnew administration was playing hardball.” While Vietnam wore on for a few more years, Richard Nixon seethed and the White House siege mentality worsened.

Two days before the historic Supreme Court case, the whistleblower who had leaked the Pentagon Papers, Daniel Ellsberg, was indicted on federal charges of conspiracy, espionage, theft of government property and the unauthorized possession of “documents and writing related to the national defense.” The day after the high court decision, White House Special Counsel Charles Colson asked former CIA operative E. Howard Hunt whether “we should go down the line to nail the guy [Ellsberg] cold.”

The Pentagon Papers obsession spawned the White House Special Investigations Unit, the infamous “Plumbers” unit, who, among other misadventures, weeks later broke into Ellsberg’s psychiatrist’s office, looking for dirt. And the poisonous paranoia didn’t stop there but extended to other burglaries, including the Democratic Party national headquarters at the Watergate complex, electronic surveillance, misuse of confidential tax return information against perceived political enemies, mail fraud, obstruction of justice and an astonishing array of other illegal government abuses of power, ultimately exposed, prosecuted and culminating in the only resignation of a sitting U.S. president.

The Pentagon Papers case and the Watergate scandal still represent U.S. history’s high-water mark in the longstanding struggle between raw political power and democratic values, poignantly affirming the public’s right to know about its government. They still represent the bleakest moments and the loftiest triumphs of journalism in contemporary America, an invaluable perspective today as we ponder the future and assess the tectonic damage to our long-cherished freedoms of speech and information in the past three, disquieting years in the wake of the devastating, unimaginable carnage of September 11, 2001.

Suddenly, despite living in the most powerful nation on earth, we all faced a shattering if all-too-familiar realization of our own human vulnerabilities, including the quite palpable fear for our own personal safety, indelibly seared into our collective consciousness. While the Vietnam and Watergate era was quite extraordinary, most Americans, including journalists, never had the sense that their physical wellbeing was potentially at risk. Juxtapose our pervasive sense of insecurity and the patriotic and visceral, survival-related instinct to do anything to thwart “terrorism,” with a President and administration which assumed power with a well-documented predisposition to tightly manage and control information, and it is not difficult to understand the current, wholesale assault on openness and government accountability today.

Indeed, let us not forget the hard-wiring, lifelong sensibility that Watergate and the Nixonian animosity and adversarial culture toward the news media unavoidably had to have on three rising Republicans: George W. Bush, Donald Rumsfeld and Dick Cheney. Bush’s father, George H.W. Bush, was personally close to Nixon and was chairman of the Republican National Committee at the time of the resignation. Rumsfeld and Cheney not only served in the Nixon administration, but the two men were also in President Gerald R. Ford’s White House, as successive chiefs of staff.

As defense secretary in the first Bush administration, Cheney was one of the architects of the controversial Persian Gulf War media restrictions, as Jacqueline Sharkey documented in the 1992 Center for Public Integrity report, Under Fire: US Military Restrictions on the Media from Grenada to the Persian Gulf. From the military and public relations debacle of Vietnam, Cheney and others in the Pentagon and White House recognized the usefulness of trying “to hide the true face of war by controlling the images of the conflict,” including caskets at Dover Air Force Base in Delaware. In the U.S. military conflicts in Grenada, Panama and the Persian Gulf during the 1980s and early 1990s, the media thus was constrained from the actual field of action, thereby substantially preventing those Vietnam-reminiscent pictures of body bags in American TV living rooms.

In the weeks and months prior to September 11, 2001, the secrecy obsession and aggressive control tactics by the new Bush administration had already become apparent. For example, instead of turning his gubernatorial papers over to the Texas State Library and Archives, as tradition would have it, Gov. Bush, in his last hours, tried to shelter his official records inside his father’s presidential library at Texas A&M University, outside the jurisdiction of the strong Texas public information law. He was overruled by the state attorney general and they fortunately are accessible to the public.

In the summer of 2001, Vice President Cheney refused to release basic information about meetings he and other administration officials had held—on government time and property—with energy company executives to help formulate federal policies, a position on which he remains steadfastly adamant.

And a month before September 11, the Justice Department secretly subpoenaed Associated Press reporter John Solomon’s home telephone records. As Solomon, the AP deputy Washington bureau chief, told me, “The Justice Department has indicated to us that they were actually trying to stop the publication of a story that I was working on and tried to find out who I was talking to and cut off the flow of information. So it does get into the issue of prior restraint, along with First and Fourth Amendment issues.”

As we all know too well, in the weeks immediately following September 11th, the Bush administration obtained passage of the USA Patriot Act, with no public debate or amendments, among other things, giving federal authorities more power to access email and telephone communications. The federal government detained hundreds of people indefinitely without releasing the most basic information about them. Attorney General John Ashcroft described the news blackout in Orwellian fashion, “It would be a violation of the privacy rights of individuals for me to create some kind of list.” Usually open U.S. immigration proceedings were closed to the public, and separately, the Attorney General sent a chilling, unprecedented directive throughout the government, “When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions…” And President Bush quietly signed Executive Order 13233, overriding the post-Watergate 1978 Presidential Records Act and sharply reducing public access to the papers of former presidents, including his father’s.

In the war in Afghanistan, journalists were severely limited in their access to field of action. As the Reporters Committee on Freedom of the Press noted in its excellent report, Homeland Confidential, “In effect, most American broadcasters and newspaper reporters scratched out coverage from Pentagon briefings, a rare interview on a U.S. aircraft carrier or a humanitarian aid airlift, or from carefully selected military videos or from leaks . . . The truth is, the American media’s vantage point for the war has never been at the frontlines with American troops.”

Indeed, who can forget December 6, 2001, when Marines locked reporters and photographers in a warehouse to prevent them from covering American troops killed or injured north of Kandahar, Afghanistan? And while embedded reporters enjoyed far greater access—and danger—in Iraq, many news organizations, including The New York Times and The Washington Post, have recently been introspective or even mildly apologetic for their over-reliance on official statements in the lead-up to the war.

But, meanwhile, it is hard to overstate the fear and paranoia of an entire, terrorized nation. Within six months of September 11th, in 300 separate instances, federal, state and local officials restricted access to government records by executive order, or proposed new laws to sharply curtail their availability, according to the National Conference of State Legislatures. More recently, sunshine activists are most alarmed about the Homeland Security Act, especially its Protected Critical Infrastructure Information (PCII) section. Former Miami Herald managing editor Pete Weitzel recently described it in The American Editor as a “black hole” for almost boundless censorship. The ranking Democrat on the Senate Judiciary Committee, Patrick Leahy, called the move—which would create an entirely new level of secrecy and a system of binding nondisclosure agreements effectively muzzling millions of state and local officials and private contractors—“the single greatest rollback of FOIA in history.”

The American people unfortunately are not as informed, concerned, or supportive about this deepening crisis as they ought to be. A national poll sponsored by the Chicago Tribune on First Amendment issues in late June found that roughly half of the public believe there should have been some kind of “press restraint” on coverage of the Abu Ghraib prison abuse scandal in Iraq—somewhat ironic considering that the chairman of the Joint Chiefs of Staff, General Richard Myers, personally had implored CBS’s 60 Minutes II to keep its exposé off the air in the name of national security, which the network actually did voluntarily until learning that investigative reporter Seymour Hersh would be publishing the story in The New Yorker. In general, according to Charles Madigan, editor of the Tribune‘s Perspective section, fifty or sixty percent of the public “would embrace government controls of some kind on free speech, particularly when it has sexual content or is heard as unpatriotic.”

This ambivalence in which at least half of the country equates draconian security and secrecy measures with their own safety is quite serious and very possibly insurmountable. Tom Blanton, executive director of the National Security Archive in Washington wrote in National Security and Open Government, “The government has successfully framed the debate after 9/11 as terrorism fighters versus civil libertarians, as soldiers versus reporters, as hawks versus doves. In wartime, the poundage of the former will always outweigh the latter… We need to place openness where it belongs, not only at the center of our values, but also at the center of our strategy for security.”

Both the Congressional September 11th investigation and the 9/11 Commission appointed by President Bush separately documented extensive “intelligence hoarding” and petty bureaucratic turf wars inside the government, excessive secrecy for all the wrong reasons and the dire consequences of not sharing information. But beyond that, the ignorance of the body politic was anything but blissful. The 9/11 Commission concluded, “We believe American and international public opinion might have been different—and so might the range of options for a president—had they [the American people] been informed of [the growing al Qaeda danger].”

It is a powerful message still substantially untold but essential to understanding and preserving freedom of the press as we know it. Indeed, the situation is so foreboding that the Associated Press has taken the unusual step of proposing an industry-wide lobby to “identify and oppose legislation that puts unreasonable restrictions on public information.” AP stepped forward after seven national journalism groups and the National Freedom of Information Coalition had already joined to form the Coalition of Journalists for Open Government.

At the Center for Public Integrity, we have found that nothing resonates more with the American people than the straight skinny itself about the powers that be. When we obtained a secret draft of the Domestic Enhancement Security Act of 2003, better known as “Patriot II,” we posted it in its 100-plus page entirety on our website, www.publicintegrity.org, over the objections of the Justice Department. Because of the public furor over some of its controversial provisions—including internal GOP frustration on Capitol Hill that the secretive Attorney General and his staff had kept them in the dark for nearly half a year—the draft bill was dead within months (although the Bush administration has been trying to push a few provisions separately).

Or, noticing that no one was terribly helpful or definitive about the awarding of billions of dollars in government contracts in Iraq and Afghanistan, we decided to go to work, filing 73 FOIAs and, when necessary, successfully suing the State Department and the Army for the contracts. Six months later, our report, Windfalls of War, revealed all of the major known contractors and contracts, and the fact that Vice President Cheney’s former company, Halliburton, and its subsidiaries had gotten by far the most taxpayer money, some of them with no other bidders. Our approach now on any issue is to push back and appeal on any stonewalling that elevates our blood pressure. In other words, appeal early and often—it’s the principle of the thing, and you just might win.

Besides educating the American people about the Vietnam War, the greatest result of courageous publication of the Pentagon Papers was the confidence it imbued in newsrooms all across America. Inside The Washington Post, years later Bradlee recalled, “a sense of mission and agreement on new goals, and how to attain them… After the Pentagon Papers, there would be no decision too difficult for us to overcome together.”

And Solicitor General Erwin Griswold, who argued the government’s case against The Post and The Times before the Supreme Court, later acknowledged in an op-ed what many had suspected all along, “I have never seen any trace of a threat to the national security from the Pentagon Papers’ publication.”

As Supreme Court Justice Potter Stewart wrote in the Pentagon Papers case, words we should all remember, “In the absence of governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry—in an informed and critical public opinion which alone can here protect the values of democratic government.”