In a joint op-ed titled ‘When Do We Publish a Secret?’ published on 1st July 2006, New York Times Executive Editor Bill Keller and The Los Angeles Times Editor Dean Baquet wrote about the « excruciating choices » newspaper editors face since 9/11 and the responsible and long deliberative process that allows to « weigh the merits of publishing against the risks of publishing.»

Q: Could you tell us about those « excruciating choices » newspaper editors face since 9/11? Do national security arguments and counter-terrorism programmes place the world press in an increasingly uncomfortable position? Do you think that journalists and editors face more legal uncertainty now or are the rules of the game understood?

I should start by pointing out the obvious -- that hard choices about publishing classified material did not begin with 9/11. Editors have always had occasions to weigh the public's right to know against claims of national security -- most frequently in times of war, but not only. The first time I recall being asked to withhold publication of a story on grounds of national security was in 1996, when I was Foreign Editor.

Michael Gordon, then a correspondent in Moscow (and now our chief military correspondent) learned that the U.S. was trying to negotiate the removal of a stockpile of highly enriched uranium from the former Soviet republic of Georgia. The Americans and Georgians feared that the material could fall into the hands of terrorists. The Russians, who still claimed rights to the material, were throwing up bureaucratic obstacles that prevented the Americans from removing the stuff for reprocessing. An interesting post Cold War story. American officials appealed to us to hold publication because this dangerous material was extremely vulnerable, and an article in The Times might draw the interest of thieves who would sell it onto the black market. We held the story until security measures were installed to protect the uranium against theft, then ran it on the front page. That one was not a particularly hard call, but I mention it simply to indicate that these issues are not entirely new.

Since 9/11, the choices have been complicated by the fact that the enemy is a murkier entity, the battle lines are not clear cut, and much of the war takes place behind a shroud of secrecy -- on all sides. Moreover, we are more often confronted by decisions that seem to pit national security against civil liberties. And in a world of highly classified information, it can be difficult to appraise both sides of the equation -- the threat to national security, and the threat to civil liberties.

Sometimes the decisions are easy. Reporters who travel as embeds with military units in Iraq and Afghanistan have access to real-time operational intelligence that, if published on our website, could be advantageous to insurgents. The risk of publishing such information is obvious, the public service in doing so is negligible or nonexistent. Sometimes, as in the NSA case, the decisions are much harder. It took more than a year of additional reporting, after we learned of the existence of this program, before we knew enough to say with confidence that the doubts about the legality of the program outweighed the dangers of disclosure -- and to this day there are many people, inside and outside of the government, who believe we should have kept that program secret.


Q: What specifically made you and Dean Baquet decide to co-author an op-ed piece titled ‘When Do We Publish a Secret?’

The reports in our papers about the Swift banking surveillance program had stirred a storm of hostility from the Administration and its supporters in Congress and the commentariat. They were questioning our patriotism and our integrity. Each of us was fielding calls from reporters asking us to respond. We decided it would be useful to respond jointly, in the hope that simultaneous publication in both papers might draw more attention to our explanation.


Q: Has the press been facing increased government’s secrecy and undue classification and re-classification of information?

In our country, certainly. We have an administration in Washington that is more secretive, and more generally hostile to the press, than any since the Nixon administration. This was true before 9/11 (witness the intense secrecy surrounding Vice President Cheney's deliberations with energy industry officials) but it has intensified since the attacks on U.S. soil, and at least for a time it probably enjoyed a surge of popular support.

I believe, though, that this Administration's preoccupation with secrecy, with controlling the message, has been a double-edged sword. It has contributed to a general decline in public credibility (reflected unmistakeably in the opinion polls). It has made it hard to get a national and international consensus on measures that are necessary to combat the genuine threat of terrorism. And it has, paradoxically, undermined the Administration's ability to keep secrets. Think about it. Who are our sources? Some of them are military officers upset at the way the White House has prettied up the picture of the situation in Iraq, career intelligence officials distressed that their work has sometimes been cherry-picked to serve a policy, government lawyers who believe the administration has given short shrift to due process and the constitutional balance of powers, and lots of other officials who simply want their work fairly reflected in the public press.


Q: In the 1971 Pentagon Papers case, Supreme Court Justice Hugo Black stated that « the press was protected so that it could bare the secrets of the government and inform the people. » Is the press effectively holding governments accountable when others fail?

Not always. Throughout the history of journalism, the press has sometimes fallen short in its responsibility to hold government accountable. Sometimes the press is not brave enough, sometimes it gets caught up in the popular mood of the moment, sometimes we're slow to figure things out. Newspapers are produced by human beings.

But I think the missed opportunities are greatly outnumbered by daily examples of journalists laying bare malpractice, corruption or incompetence on the part of elected officials. I just spent a couple of days on a jury for the American Society of Newspaper Editors judging newspaper writing in a category called "local accountability." We had submissions from about 100 American newspapers, big and small, articles digging into officials and agencies that carry out the public's business. Many of them entailed challenging powerful local businesses that might be important advertisers in the very papers running the stories. I found it heartening that in this day when newspaper journalism is under such economic pressure, journalists in most communities still see it as their first responsibility to shine a bright light into powerful institutions.

At the national level, I think the press has been chastened by the experience before the beginning of the Iraq war. While I think the notion that the press was a cheerleader for the war is easily dispelled by an hour in the files of any major newspaper, including my own, skepticism was sometimes in short supply. That has led to a lot of introspection and a generally more aggressive approach to the claims of our officials.

Certainly the recent coverage of the Administration's intelligence on Iran has reflected the sort of probing, skeptical reporting that should be standard.


Q: Both the New York Times and The Washington Post apologised for their mild reporting in the run-up to the war in Iraq. How do you explain that mildness? Do you ultimately see it as a failure?

I think the shortcomings were due to a number of factors: the immense difficulty of reporting on secret intelligence, compounded in this case by an administration that was pretty ruthless in its internal discipline; an eagerness to publish scoops, especially scoops that have an alarming quality to them; a willingness to believe, in the aftermath of 9/11, that the world had become a much more threatening place; and probably other factors. I do not believe the press marched in some patriotic lockstep.

And, again, the inadequate reporting was accompanied by a lot of very good reporting, including some questioning the weapons of mass destruction intelligence, and including plenty of reporting questioning the justification for a preemptive strike before the weapons inspectors had completed their jobs.

Q: Do you think that the press is traditionally reluctant to print classified information when an administration or a policy is popular and keener when that popularity vanishes?

I would guess that reporters who cover the government, and their editors, are somewhat more receptive to appeals from presidents who are popular (and who cultivate the press.) There is, of course, the famous example of my own newspaper during the administration of John F. Kennedy, withholding detailed information about the impending Bay of Pigs invasion. Even Kennedy later said The Times should have published the story and possibly prevented a debacle. But I think that in general, at least since Watergate, the press has become less susceptible to the blandishments of high officials and the factor of high ratings in the polls.


Q: Is there a way to reconcile wartime, assertion of executive power and press freedom?

If you'll forgive me for quoting myself, I talked about this issue at some length in a speech last year at the University of Michigan. It pretty well reflects one editor's thinking on the difficult question of reconciling the government's power to keep secrets with the press's right to inform the public. I've edited this excerpt a bit:

Thirty-one states and the District of Columbia have laws that help protect reporters’ sources – and another 18 states have protections established by court precedent. But all of this is undermined by the lack of federal protection. Australia, Japan, Mexico, Germany, Italy, Norway and other democracies have stronger legal protection of sources than the U.S.

In Sweden, a journalist violates the law when he reveals a source who has been promised protection. Even in Britain – whose secrecy laws we tend to regard as draconian by comparison with our own – courts have called the confidentiality of sources “one of the basic conditions of press freedom.” The reality, however, is that enactment of a federal shield law does not seem imminent.

So how do the executive branch and the press coexist?

The thing that has worked most effectively over the decades to maintain a healthy equilibrium between press freedom and national security is not something codified in the law. It is common sense. It is compromise and accommodation. In a brilliant affidavit he filed as part of the Pentagon Papers case, Max Frankel of The Times described for the court the unwritten but generally observed etiquette of what he called “mature” press relations:

“For the vast majority of ‘secrets,’ there has developed between the Government and the press (and Congress) a rather simple rule of thumb: The Government hides what it can, pleading necessity as long as it can, and the press pries out what it can, pleading a need and right to know. Each side in this ‘game’ regularly ‘wins’ and ‘loses’ a round or two. Each fights with the weapons at its command. When the Government loses a secret or two, it simply adjusts to a new reality.”

Alexander Bickel also worked over this issue in his seminal volume of legal philosophy, The Morality of Consent. Bickel was the chief counsel for The Times in the Pentagon Papers case.

Bickel argues that ambiguity and ambivalence are the lubricants that allow the First Amendment to function. The government, he writes, has the right and the responsibility to protect legitimate secrets. And yet it is constrained in many ways in what it can do to guard those secrets. It may not legally break and enter, or steal, or spy electronically without a judicial warrant. It cannot restrain anyone from publishing a secret unless it can prove “immediate harm of the gravest sort.”

“We have no Official Secrets Act and can have none restraining publication of most secrets. The government cannot copyright anything…” The government has great power to enforce secrecy at the source, but has little recourse once the secrets have escaped. “The government may guard mightily against serious but more ordinary leaks, and yet must suffer them if they occur.”

“The accommodation works well only when there is forbearance and continence on both sides,” Bickel concludes. “It threatens to break down when the adversaries turn into enemies, when they break diplomatic relations with each other, gird for and wage war. Such conditions threaten graver breakdowns yet, eroding the popular trust and confidence in both government and the press on which effective exercise of the function of both depends.”

This argument, of course, assumes a respectful – if adversarial — relationship between an establishment press and a Government that accepts the value of compromise in the conduct of public affairs. It’s arguable whether we have either of those today.

The notion of an establishment press is, at least, under siege. The Times, the Wall Street Journal, the Washington Post, the Associated Press and the three television networks and their kin are no longer society’s common sources of news to the extent that they were in the past. Journalism has become a wide open market. News comes from a dizzying number of directions, especially on the Web.

This democratization of the media has brought healthy change, introducing new voices and new audiences to the national conversation. But it has contributed to a blurring of the very definition of who is a journalist. I think a news organization like mine should be a little humble about trying to define who is entitled to be called a journalist, and personally I’d advocate a fairly expansive definition. But it’s pretty obvious that the legions of Internet journalists include at least a few who would feel no compunction about disclosing life-threatening information.

I suspect the official custodians of America’s secrets would say that Max Frankel’s rule of thumb – the idea that the government should accept an occasional loss and learn to live with it – is inoperative in a world where anyone with an Internet Service Provider can be a journalist. If a blogger hostile to the Bush Administration managed to document sensitive secrets about the war on terror, would he stop to weigh the consequences of making them public? And once the information had rebounded through the blogosphere, how long would the major news organizations hesitate before picking it up?

So far, this fear is largely theoretical, and for at least one good reason. Mainstream news organizations are far more likely to have reporters dedicated to the hard, painstaking work of reporting on national security issues -- developing sources, building trust, piecing together details into patterns.

Contrary to popular mythology, sensitive secrets do not generally fall into our hands. They may begin with a tip from a source who has a grievance or a guilty conscience, but those tips are just the beginning. Reporters operate without security clearances, without subpoena powers, without spy technology. They work, rather, with sources who may be scared, who probably know only part of the story, who may have their own agendas that need to be discovered and taken into account. Reporting secret information with confidence usually entails a multitude of sources – ideally backed by documentary evidence.

One of the striking things about the NSA eavesdropping story is that more than a year elapsed between the time our reporters dug out the information and the time we published it, and yet it did not surface anywhere else. The information was that hard to get.

So, while the mainstream press might not enjoy the hegemony it held before the Internet, we have not yet fallen into information anarchy. Most of what the country knows about the secret activities of its government, it knows thanks to serious news organizations that still take their responsibilities seriously.

Across the table, however, we have a government that is not inclined toward – in Bickel’s phrase – “continence and forbearance,” a government that favours the language of moral clarity, of black and white, of with us or against us. And, it must be said, there seems to be a considerable public constituency for that attitude.