Wednesday, June 28, 2006

Privacy, the Press, and shooting the mess

This may well be the first time I've linked to the Salina Journal's experiment with blogging. The gang there is interesting, but it's like watching an episode of the Three Stooges in which the professional slapstick artists were replaced with genuine buffoons and the props all have sharpened edges. It's fun to watch, but you really don't want to get too close.

In any event, we'll jump in on Colt's discussion of Aiding & Abetting the Enemy… (language the Constitution uses to define treason). Colt, you see, is upset that the New York Times published information about government programs:
What is really happening in these cases? First the New York Times runs an article in which they make public the highly classified NSA telephone surveillance program. Now they have run a front page article disclosing another classified program. In both cases the information was leaked by public officials who apparently take issue either with the legality of the programs or simply the programs themselves. The legality of the NSA program is still an open question, but the legality of the financial surveillance program seems to be unquestioned. In either case the security of our country has been compromised by these actions. In short, it amounts to aiding and abetting the enemy, either in fact or in principle.
In my opinion the government officials should be prosecuted to the full extent of the law. Revealing classified information is in itself a serious violation of our laws but in time of war it could should considered even more seriously. We cannot have public officials who happen to disagree with their superiors, or the administration, simply going public with classified information as a political act. I feel the government needs to make some examples of these people as just one way of stopping the practice. Prosecutors could also subpoena reporters and editors to question as to who the sources were, under penalty of jail time. That just might give them more pause when it comes to publishing classified information no matter where or how it is obtained.
Kevin Lyda responded by asking Who decides what the press can publish? and then Colt replied that the issue was how to better control classified material. Since then they've been banning each other from their comment threads and calling each other names.

The question still stands why it is necessary to shoot the messenger here. Why should the reporters and editors go to jail? Why prosecute them at all?

Was the surveillance of financial transactions through the Belgian company SWIFT illegal? No, they had subpoenas and junk. This is a step up from the NSA program which Hoovered up billions of domestic phone calls without a warrant, as did the secret Internet tapping described in a recent report. And as such, we should be grateful that the executive branch is prepared to play by the rules once in a while.

However, that doesn't address the issue of whether those programs should be classified, nor whether the press ought to reveal them. These are not entirely independent questions, but they are assuredly not the same question.

What we know from various newspaper reports is that the NSA has been tracking various people, allegedly starting by tracing calls by al Qaeda members, and seeing who calls whom and what they say. In addition, it gathered tons of data about random Americans so that they could get a sense of what a "normal" social network would look like. Similar efforts were undertaken to research internet connections. No warrants, no oversight.

None of this is news to anyone who has watched a mob movie in the last 30 years, or read anything about how the police, FBI, CIA and NSA track people, whether mobsters, terrorists, foreign leaders, money launderers, or dead-beat dads. Of course we're tracing the flows of cash, and of course we're tracing the calls and internet connections of known al Qaeda members. There are laws that exist to permit such scrutiny and to ensure that it remains sufficiently narrow in scope that innocent citizens aren't swept up. Reporting that wouldn't be news. Reporting the precise details of how exactly it's done, exactly what criteria are applied, what technology is used might be problematic if it revealed ways to evade such scrutiny, but even that would be a dubious basis for restricting reporters. Having a public debate about what the public expects to be able to keep secret from their government is what separates us from Saddam's Iraq, and the press plays a valuable and valid role in that discussion.

There's a natural tendency of government to keep as much secret as possible. It turns out that much of what is nominally classified is not actually that secret, and doesn't need to be. Overclassification is a major problem in modern society.

That said, it isn't a journalist's job to make declassification decisions. But it isn't a journalist's job to just accept what's given freely, either. And newsrooms at the Washington Post and the New York Times have enough experience with these issues that they can separate operational details from general information relatively reliably. That's what we all learned from the Pentagon Papers and Watergate.

Don't forget, either, that Daniel Ellsberg only stayed out of jail because Nixon abused Ellsberg's civil liberties so blatantly. Revealing classified information is a crime, and Ellsberg did what he did because he was prepared to go to jail if it meant the public had a chance to better understand what the government was doing. Lots of people were going to jail for what they believed at that time, and Ellsberg was ready to accept the consequences of his actions. One presumes that the people who are leaking information on the NSA wiretapping and other illegal or borderline activities are also prepared to accept those consequences.

The Times is doing its job, and unless they are revealing the identities of secret agents, revealing ways that criminals can get around surveillance, there's no reason to shoot the messenger.

The banking surveillance is problematic only because the amount of information accessible from financial records is enormous, and there are serious questions to be asked about the ways that individuals are protected from the prying eyes of the government. As the Times explained:
The program … is a significant departure from typical practice in how the government acquires Americans' financial records. Treasury officials did not seek individual court-approved warrants or subpoenas to examine specific transactions, instead relying on broad administrative subpoenas for millions of records from the cooperative, known as Swift.
An administrative subpoena means that no judge reviewed it, and the broad scope of the request means that there's no way to be sure that those millions of records don't include plenty of legitimate but private business dealings. And we've heard the defenses before, only to learn that they don't bear up to scrutiny. For instance, like the NSA programs, "the program is limited, government officials say, to tracing transactions of people suspected of ties to Al Qaeda." But we've seen that the number of people swept up in these searches is far beyond any plausible estimate of the number of al Qaeda agents in the US. And like the NSA program, officials involved are concerned because "what they viewed as an urgent, temporary measure had become permanent nearly five years later without specific Congressional approval or formal authorization."

The Times isn't staking out a position against the administration, and it's absurd to think that a paper whose offices were under the flight path of the planes that hit the World Trade Center would be against hunting down terrorists. The Wall Street Journal, no enemy of the President's nor a paper unaffected by 9/11, also did extensive reporting on this program.

Like all reasonable people, the Times and the Journal are concerned that programs with legitimate goals can easily be turned to illegitimate uses. And Congress can't impose oversight unless they know that these programs exist, nor can Congress judge what people will find acceptable unless the public is aware of the broad strokes of the programs. And it is the press's constitutional right to inform the public so that the people can petition for redress of grievances. The system worked, so don't shoot the messenger.

There are serious issues at stake here, and whether we should have a free press simply isn't one of them.