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Democracy Now

By Fredric Smoler

This Sunday the New York Times Book Review will publish Michael Kinsley’s review of Glenn Greenwald’s No Place To Hide. The review has been available on line since May 22nd, where it immediately provoked confidently scornful replies—“rebuttals” doesn’t really capture the intellectual content of this genre—from a number of people, many of them journalists, along with a striking amount of vitriol. Nothing much new here, except that one of the first responders was Margaret Sullivan, the Times’ Public Editor, who commented on Kinsley’s review on May 27th, i.e. almost two weeks before the Book Review would publish Kinsley. Pretty remarkably, Sullivan strongly implied that the Times should not have published Kinsley:

...the review, which was not only negative about the book but also expressed a belief that many journalists find appalling: that news organizations should simply defer to the government when it comes to deciding what the public has a right to know about its secret activities. I asked the Book Review editor, Pamela Paul, why Mr. Kinsley was chosen to review the book…Here’s my take: Book reviews are opinion pieces and—thanks to the principles of the First Amendment—Mr. Kinsley is certainly entitled to freely air his views. But there’s a lot about this piece that is unworthy of the Book Review’s high standards, the sneering tone about Mr. Greenwald, for example; he is called a “go-between” instead of a journalist and is described as a “self-righteous sourpuss"...But worse, Mr. Kinsley’s central argument ignores important tenets of American governance. There clearly is a special role for the press in America’s democracy; the Founders explicitly intended the press to be a crucial check on the power of the federal government, and the United States courts have consistently backed up that role. It’s wrong to deny that role, and editors should not have allowed such a denial to stand. Mr. Kinsley’s argument is particularly strange to see advanced in the paper that heroically published the Pentagon Papers, and many of the Snowden revelations as well. What if his views were taken to their logical conclusion? Picture Daniel Ellsberg and perhaps the Times reporter Neil Sheehan in jail; and think of all that Americans would still be in the dark about—from the C.I.A.’s black sites to the abuses of the Vietnam War to the conditions at the Walter Reed Army Medical Center to the widespread spying on ordinary Americans.

Yes, as Ms. Paul rightly noted to me, it’s true that a book review is not an editorial, and the two shouldn’t be confused. And she told me that she doesn’t believe that editing should ever change a reviewer’s point of view. But surely editing ought to point out gaping holes in an argument, remove ad hominem language and question unfair characterizations; that didn’t happen here.

A Times review ought to be a fair, accurate and well-argued consideration of the merits of a book. Mr. Kinsley’s piece didn’t meet that bar.

These assertions deserve a bit of scrutiny. First, Kinsley does not say that “that news organizations should simply defer to the government when it comes to deciding what the public has a right to know about its secret activities.” He seems to think that there is little that is simple about this question, and says rather that “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 (which, pace Greenwald, we still are), that decision must ultimately be made by the government.”

I can find few if any gaping holes in this part of Kinsley’s argument, or in any other. As for this part, the courts have not consistently backed up anything like the role Greenwald, Sullivan and a number of other journalists make for the press’s privileges, which on their account (as Kinsley notes) includes a right to publish any government secret without any legal reprisal. On this remarkable claim, the laws allowing the government to classify information can be safely ignored on every occasion by every reporter, although laws constrain the rest of us, most notably the executive branch—Greenwald is sure that President Obama should be held accountable for breaking the law. But no right to publish without any possible legal consequences does not mean that the press must simply defer: when it thinks something outrageous has happened, it can always choose to break the law and trust to juries, courts and, in the longer run, Congress. The courts did all right in the case of the Pentagon Papers, a jury did all right in the case of Zenger, and did it in a culture much less committed to liberty of discussion than our current culture clearly is, and Congress does not seem too happy about the recent activities of the NSA.

So there may be a special role for the press in American democracy, one envisioned by the Founders, but the contours of that role are unclear and its nature has been regularly disputed. The fact that some of the Founders envisioned something is not always the decisive point, for as it happens the Founders also envisioned a special role for slave owners, gun owners and white male citizens, and Jefferson, among others, envisioned libel laws that would make Ms. Sullivan’s hair stand on end. The Founders also envisioned a special role for the Federal government—they thought some branches of it had the right, within certain limits, to make, and others, to enforce our laws. One of more obvious distinctions between journalists and the government is that we’ve elected the government, and can throw the rascals out, whereas freedom of the press belongs, as A.J. Liebling observed and Greenwald seems to agree, to the man who owns one. The press, when it has appealed to the courts on these and related points, has won some and lost some, but the Greenwaldian-Sullivanian elements within the press sometimes seems strangely forgetful of the cases the press has lost, and weirdly forgetful of the unique legitimacy possessed by an elected government.

Also, can it possibly be true that Greenwald, or any other journalist, is the one who gets to decide what can be printed in the United States? What if a reporter published the names of American agents inside Iran, or within a foreign or domestic terrorist group, or within a foreign and hostile government? As it happens, some fairly recent leaks are said to have revealed some such names, or at least made their discovery possible. It seems absurd to claim that reporters can do this with impunity. If the reader thinks that our recent wars have been so unjust that anyone aiding us deserves whatever happens to her—and such claims were made about such leaks—what if an early-‘60s Mississippi segregationist newspaper had revealed the names of informers within the Klan, which had been leaked by an FBI sympathizer? What if those informers had then been murdered? On Greenwaldian-Sullivanian theory the FBI man might be guilty of a crime, but the paper publishing the names could not have been lawfully constrained, and a reporter who refused to identify the FBI source could not be held in contempt. As it happens, the Supreme Court suggested the fatuity of claims to that last “right” just yesterday.

The absence of so extravagant a view of reportorial privilege does not mean that there aren't some government secrets we ought to hope are leaked, along with some we ought to dread seeing revealed. Two anecdotes with opposite lessons are instructive, and both involve the same man. Here is Wikipedia’s account of a famous leak:

In the Pacific, Japanese depth charge attacks initially proved fairly unsuccessful against U.S. and British submarines. Unless caught in shallow water, a submarine could dive below the Japanese depth charge attack.

The deficiencies of Japanese depth-charge tactics were revealed in a press conference held by U.S. Congressman Andrew J. May, a member of the House Military Affairs Committee who had visited the Pacific theater and received many intelligence and operational briefings. Incredibly, May mentioned the highly sensitive fact that American submarines had a high survivability rate because Japanese depth charges were fuzed to explode at too shallow a depth.

Various press associations sent this leaked news story over their wires, compounding the danger, and many newspapers (including one in Honolulu, Hawaii) published it. Soon, Japanese forces were resetting their depth charges to explode at a more effective average depth of 75 m (250 feet), to the detriment of American submariners. Vice Admiral Charles A. Lockwood, commander of the U.S. submarine fleet in the Pacific, later estimated that May's revelation cost the United States Navy as many as ten submarines and 800 seamen killed in action.[16]

While I have seen revisionist arguments claiming that the Japanese decision to reset their depth charges was not a direct response to the accounts idiotically published in the American press, there is no reason to assume that the conventional wisdom had to be wrong—after all, some foreign governments famously read as many of their enemies’ newspapers as they can get their hands on. In this case, there was no bad intention, but there may have been a catastrophic effect. Had the newspapers known that this information was classified, should the government really have no power to punish its publication?

Lockwood was the hero of another case, one in which there was no leak. Again, an excerpt from an admirable Wikipedia account:

The Mark 14 was central to the torpedo scandal of the U.S. Pacific Fleet Submarine Force during World War II. Due to inadequate Depression-era peacetime testing of both the torpedo and its exploder, the defects tended to mask each other...These defects, in the course of fully twenty months of war, were exposed, as torpedo after torpedo either missed, prematurely exploded, or struck targets (sometimes with an audible clang) and failed to explode.

Responsibility lies with the BuOrd, which specified an unrealistically rigid magnetic exploder sensitivity setting and oversaw the feeble testing program. Additional responsibility must be assigned to the United States Congress...Against orders, some submariners disabled the magnetic influence feature of the Mark VI exploder, suspecting it was fault...newly minted Rear Admiral[41] Lockwood ordered a historic net test...on 20 June 1942.[42] Eight hundred torpedoes had already been fired in combat…After twenty-one months of war, the three major defects of the Mark 14 torpedo had at last been isolated. ...Each defect had been discovered and fixed in the field—always over the stubborn opposition of the Bureau of Ordnance."[43]

Suppose that someone—Admiral Lockwood or one of the other naval officers who had realized what was wrong—had leaked the superabundant evidence to a newspaper? Suppose that such a leak was published promptly—for example, on Christmas Day of 1941, one day after one Commander Tyrell D. Jacobs of Sargo had a sufficiently wretched experience to suspect that something was very wrong indeed (and within a few days, and more bitter experience, was sure of it). A leak would very likely have cut short BuOrd’s refusal to address the disastrous problems with American torpedoes, in which case we can be pretty confident that many fewer people would have died in the Pacific theater of the Second World War.

So clearly we want some leaks to happen, and do not want others to happen. Who should decide? The Greenwaldian-Sullivanian theory is wonderfully clear: reporters should decide. But as the case of the depth charges make clears, the judgment of the reporters is no more infallible than the judgment of the government, as was displayed in the case of the torpedoes. The two cases both involved risks to American lives and security, just as recent leaks, and as yet unknown regrettable non-leaks, may both have posed. Sullivan, Greenwald et al. think it is very simple. Kinsley thinks it isn’t, which is usually the safer bet, but that in the last analysis elected governments get to decide on the law, while reporters get to decide whether to take their chances with a jury of their fellow citizens. This ought to be uncontroversial, but has in fact provoked not so much a controversy as an amazing campaign of vilification against Kinsley, George Packer and anyone else who doubts the absolute wisdom of Greenwald and Snowden. The Greenwaldians, who have managed to persuade a Times editor to announce that her paper behaved very badly in even publishing Kinsley, claim that their views face constant oppression and near-total exclusion from the public realm and the pages of the press, although presumably not on those occasions when Greenwald receives a Pulitzer, is offered powerful jobs in new media companies, and wanders freely across the land still in possession of stolen and highly (and in some cases, perhaps, wisely) classified information.

Now, on that dreadful “sneering tone”, which doesn’t in fact exist: Kinsley’s tone is rather genial contempt, with geniality the more striking portion of the mix, given the mixture of intellectual absurdity and venom that marks any effusion from the ubiquitous Greenwald. Kinsley doesn’t actually term Greenwald a self-righteous sourpuss, he rather notes that “Maybe he’s charming and generous in real life. But in No Place to Hide, Greenwald seems like a self-righteous sourpuss...” Now if Greenwald isn’t self-righteous, the word has no meaning. As for “sourpuss”, widely mischaracterized as outrageously ad hominem, it is surely mere meiosis, the trope of understatement. Where another critic might describe Greenwald as say, a preening colostomy bag, Kinsley achieves his desired effect by writing the rhetorical equivalent of “Caligula was a naughty fellow”. “Sourpuss” is rhetoric, and rhetoric of a controlled, mild and very effective kind. It has not, alas, set the rhetorical tone for what has followed.

From June, 2014

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