[Reporters] took classified information, secret information, published it in their newspapers, against the wishes of the president, against the request of the president and others, that they not release it. They not only released it, they publicized it -- they put it on the front page, and it damaged us, it hurt us. [...]How do we know it damaged us? Well, it revealed the existence of the surveillance program, so people are going to stop making calls. Since they are now aware of this, they're going to adjust their behavior . . . .on the secret sites, the CIA sites, we embarrassed our allies....So it hurt us there.Whew! At least he did not call for the government to have the power to decide what journalists could publish—unlike this pundit:
As a result are they punished, are they in shame, are they embarrassed, are they arrested? No, they win Pulitzer prizes - they win Pulitzer prizes. I don't think what they did was worthy of an award - I think what they did is worthy of jail, and I think this investigation needs to go forward. [...] these people who reveal our secrets, who hurt our war effort, who hurt the effortsof our CIA, who hurt efforts of the president's people--they shouldn't be given prizes and awards for this, they should be looked into--the Espionage Act, the investigation of these leaks[.]
The question is who decides [if a journalist can publish classified information]? It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy [...] that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be [the journalist.] [Emphasis supplied.]By now I imagine the readers have figured out who the second pundit is: "even the liberal" Michael Kinsley. The first pundit is William Bennett, railing against James Risen and Eric Lichtblau regarding their December 2005 Pulitzer Prize-winning story on the Bush administration's NSA warrantless wiretapping program, and the Washington Post's Dana Priest for her Pulitzer winning reporting on secret CIA prisons.
It is an amazing screed by Kinsley, purportedly a journalist. Ironically, it was published in the New York Times, "the private compan[y] that owns [a] newspaper" that also happened to publish the Pentagon Papers after winning a case at the U.S. Supreme Court, the Pentagon Papers case. Apparently, Kinsley disagrees with that court's admonition that:
Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.Remarkably, Kinsley is more extreme on the issue of prior restraint than even William Bennett. Apparently, so too are some noted "journalists " of our time like Jonathan Chait who strongly endorsed Kinsley's piece in these terms: "Michael Kinsley deftly fillets [the reporter] (or, as [the reporter] would put it, is a corrupt tool of the state)." Well, if the shoe fits ....
I have more to say on the flip.
In a devastating takedown of Kinsley, Barry Eisler wrote:
How can the government have ultimate decision-making power consistent with the First Amendment with regard to the publication of leaks? As Kinsley himself goes on to say, "You can't square this circle." Indeed. Unless you believe the government should be able to impose prior restraint on the publication of anything it deems secret. Unless you want to argue that the Constitution should be amended accordingly. Unless you believe the government should have been able to prevent the publication of, say, the Pentagon Papers (it certainly tried).In discussions about Kinsley's piece on Twitter, folks replied to my similar reading as inferring things Kinsley did not intend. While that is possible, it seems highly improbable. As Eisler notes:
[T]hough it may be that the de facto end of the First Amendment's guarantee of a free press, and the advent of a new system of prior restraint, might not have been Kinsley's point, it's certainly his unavoidable implication. You'd think a guy who tosses around references to James and Frayn and Marcuse and all that would understand the difference. That he doesn’t isn’t comic at all. It’s sad.Indeed it is. In his takedown of Kinsley, Eric Wemple writes about Kinsley's musings that a reporter be subject to prosecution for publication of classified information:
Kinsley moves on to the David Gregory issue. Last June, not long after the Snowden-Greenwald connection plastered itself all over the front pages of national newspapers, Greenwald appeared on “Meet the Press,” where host David Gregory asked him, “To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?” Greenwald all but spat the inquiry back at Gregory.Wemple recounts Kinsley's take:
And what was so outrageous? Well, for starters, Greenwald says, the “to the extent” formulation could be used to justify any baseless insinuation, like “To the extent that Mr. Gregory has murdered his neighbors. . . .” But Greenwald does not deny that he has “aided and abetted Snowden.” So this particular question was not baseless. Furthermore, it was a question, not an assertion — a perfectly reasonable question that many people were asking, and Gregory was giving Greenwald a chance to answer it: If the leaker can go to prison, why should the leakee be exempt? But Greenwald seems to feel he is beyond having to defend himself. Even asking the question, he said, amounts to “an extraordinary assertion” that “journalists could and should be prosecuted for doing journalism.” [Armando's emphasis]Wemple responds:
We’ve been here before. Gregory’s question wasn’t, in fact, just a question. It was an accusation masquerading as a question, and an accusation that has never found any factual basis. Snowden did his highly technical work in harvesting top-secret documents from the government by himself. Just how was journalist Glenn Greenwald going to aid and abet that operation?Wemple then considers Kinsley's inexplicable argument that a working journalist is truly no different than a leaker. Wemple writes:
Kinsley says the following question is reasonable and important: “If the leaker can go to prison, why should the leakee be exempt?” This legal distinction is a building block of an open society. We addressed the matter last year when discussing what it would take to prosecute Greenwald under the Espionage Act for his actions. A federal judge in a 2005 Espionage Act case distinguished between leaker and leakee:It's an incredibly simple and obvious explanation and it is shameful that it would be required for anyone who claims to be a journalist. But these days, there are plenty of "journalists" who have no moral right to the claim.
The first class consists of persons who have access to the information by virtue of their official position. These people are most often government employees or military personnel with access to classified information, or defense contractors with access to classified information, and are often bound by contractual agreements whereby they agree not to disclose classified information. As such, they are in a position of trust with the government. The second class of persons are those who have no employment or contractual relationship with the government, and therefore have not exploited a relationship of trust to obtain the national defense information they are charged with disclosing, but instead generally obtained the information from one who has violated such a trust.How’s that for an explanation?
On twitter, I said:
No better evidence of @ggreenwald 's point that today's journalists are cowed than bouquets thrown to Kinsley's call for prior restraintWhat a sad state of affairs that people like Kinsley, David Gregory and Jon Chait are perceived to be at the top the journalism heap.