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Q & A

By George Scialabba & Fredric Smoler

What follows is an exchange between George Scialabba, essayist and editor of The Baffler, and longtime First of the Month contributor, Fredric Smoler. The subject of their debate (which was sparked by Smoler's article "Democracy Now.") is the controversy surrounding Michael Kinsley's Times review of Glenn Greenwald's No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State.

Glenn Greenwald and the Hegemon

By George Scialabba

“Democracy Now” by Fred Smoler raises several questions, some more important than others. Among the latter: Should the New York Times public editor have commented on Michael Kinsley’s NYTBR review of Glenn Greenwald’s Nowhere to Hide, and were her comments well-judged? In calling Greenwald a “self-righteous sourpuss,” was Kinsley “sneering” or merely expressing well-merited “genial contempt”? What accounts for the “amazing campaign of vilification” against Greenwald’s critics, notably Kinsley and George Packer? Important or not, here’s two cents’ worth of answers from a Greenwald fan.

The Times’s public editor exists ostensibly to keep the Times up to its lofty standards of journalistic excellence and actually to maximize customer satisfaction by providing readers an illusion of meaningful participation in shaping and monitoring those standards. Unfortunately, the Times’s standards allow for considerable undue deference to government (for example, the suppression of the Bush administration’s illegal surveillance programs until after that president’s reelection); the regular granting of anonymity to officials who leak classified information that the government wants published but does not want to declassify; and more generally (and importantly) the selection and framing of public debate in ways that avoid raising fundamental questions about the purposes of state policy and the institutional structures that constrain its formation. (For elaboration, see Manufacturing Consent by Edward Herman and Noam Chomsky.) A public editor who challenged the Times’s standards in these respects would be performing a useful function, and her performance would be worth debating. But if one doesn’t think the Times’s standards are all that excellent to begin with, this will naturally not seem quite so important. I do, however, deplore Sullivan’s intervention on other grounds. Being a professional book reviewer, I think the deliverances, however silly or snide, of our long-suffering and under-appreciated tribe should be exempt from editorial remonstrance, public or private. You should all be more grateful to us, notwithstanding the occasional Kinsley.

Whether “self-righteous sourpuss” was a “sneer” or a witty expression of “genial contempt” is, as Samuel Johnson replied when asked to settle the proportion of iniquity between Voltaire and Rousseau, a difficult question. Smoler helpfully offers a comparable specimen of genial contempt: “Caligula was a naughty fellow.” This is funny (sort of) because Caligula was a monster of sadistic cruelty, many orders of magnitude worse than naughty. What, analogously, is Greenwald’s kind of monstrousness, by implication many orders of magnitude worse than being a self-righteous sourpuss?

Were Kinsley and Packer subjected to an “amazing campaign of vilification” by Greenwald’s admirers? Kinsley’s and Packer’s critics were, for the most part, angry Times readers, along with a few bloggers and their followers. Some of these, perhaps reflecting the perennial exasperation of indignant outsiders with smug insiders, said nasty things (though no threats were made, as far as I know). What’s so amazing? Among the insiders who immediately leaped to Kinsley’s defense were columnists for the Washington Post and New York magazine, along with the host of Meet the Press. Kinsley and Packer repose securely in the fond embrace of the media and policy elites. They are certified Very Serious Persons, and thus, as Lawrence Summers avuncularly explained to a younger Elizabeth Warren, exempt from criticism by people who really count. Greenwald is not Serious, which is why, for example, Sean Wilentz felt free to claim in The New Republic that Greenwald and Snowden “despise the modern liberal state” and “want to wound it,” being “paranoid” alarmists out to “damage” and “sabotage” their “bugaboo,” the national security apparatus, rather than to “secure Americans’ constitutional rights.” This is high-profile vilification indeed, and a good deal harsher than anything the Times public editor said about Kinsley.

The more important question raised by Smoler’s piece is: when should journalists be allowed, indeed encouraged, to publish classified information, and when should they be prosecuted for doing so? Smoler cites both historical and hypothetical examples of cases in which journalistic incompetence or malice in leaking secret information might have cost lives. This is supposed to refute Greenwald’s “simple” (ie, simple-minded) position, which is, according to Smoler, that journalists have “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.”

This characterization of Greenwald’s views is a little hard to square with these remarks of Greenwald’s during his exchange with New York Times columnist Bill Keller last October:

As for taking into account dangers posed to innocent life before publishing: nobody disputes that journalists should do this. ...I have no objection to the process whereby the White House is permitted to give input prior to the publication of sensitive secrets. ...Indeed, WikiLeaks, advocates of radical transparency, went to the White House and sought guidance before publishing the Iraq and Afghanistan war logs, but the White House refused to respond, then had the temerity to criticize WikiLeaks for publishing material that it said should have been withheld. That pre-publication process is both journalistically sensible (journalists should get as much relevant information as they can before making publication decisions) and legally wise (every Espionage Act lawyer will say that such consultation can help prove journalistic intent when publishing such material). For all the N.S.A. reporting I’ve done—not just at The Guardian but with media outlets around the world—the White House was notified by editors before the fact of publication (though in the vast, vast majority of cases, their demands that information be suppressed were disregarded due to lack of specific reasons in favor of suppression).

As far as I’m aware, Greenwald’s position has always been that, considering the rich history of government suppression of dissent (during the Wilson and Coolidge administrations, the post-WWII period, and the New Left, when the FBI acted as a national political police), as well as the fact that the constitutionally sovereign authority, Congress, has been persistently ignored, stonewalled, or deceived by the Executive Branch since the Reagan administration, that publication of classified information is, in the absence of what Justice Potter Stewart (in the Pentagon Papers case) called the likelihood of “direct, immediate and irreparable damage to the nation,” justified whenever necessary to publicize government wrongdoing (including over-classification and the resultant excessive secrecy—itself a grave harm to democracy).

Smoler’s own position on these matters is sensible enough: “when [the press] thinks something outrageous has happened, it can always choose to break the law and trust to juries, courts and, in the longer run, Congress.” Judging from the near-absence in his piece of any reference to the history alluded to above, and particularly to the continual, unrelenting aggrandizement of Executive Branch claims and prerogatives in recent decades, which is the immediate background of Greenwald’s crusade, Smoler’s threshold of outrage seems to be very different from Greenwald’s. But I don’t see, for all Smoler’s condescension and contempt, that there’s any principled difference between their views of how the First Amendment should apply to the press. If there is, could he explain it a bit further?

Why Worry

By Fredric Smoler

George Scialabba’s tongue seems to be in his cheek in both the original (i.e. contemptuous, as in Smollett) and Victorian and later (i.e., merely ironical) senses of the phrase when he writes that he "...deplore(s) Sullivan’s intervention...Being a professional book reviewer, (he) think(s) the deliverances, however silly or snide, of our long-suffering and under-appreciated tribe should be exempt from editorial remonstrance, public or private.” This is to employ the word 'remonstrance' in something approaching its Pickwickian sense, since Margaret Sullivan did a bit more than ‘reproachfully and forcefully protest’ Kinsley’s review: she instead wrote that the Times Book Review had erred in allowing him to express his views within its pages (“editors should not have allowed such a denial (of Ms. Sullivan’s view of the law) to stand”, and that its editors had failed in their duty “to point out gaping holes in an argument”). Insofar as she imagined that she might be taken seriously—and in my experience, NYT writers generally expect to be take very seriously indeed—the Times’ Public Editor sought to make sure that views like Kinsley’s would never again be expressed in her newspaper.

Mr. Scialabba then wonders whether “Kinsley and Packer (were) subjected to an 'amazing campaign of vilification’ by Greenwald’s admirers”, noting that some “said nasty things (though no threats were made, as far as I know). What’s so amazing?” If ‘pure and outright fascists’, ‘Central casting-perfect pencil-neck ineffectual liberal pantywaist living strawman’ and ‘uninformed /uneducated fascist’ does not constitute vilification—and there was plenty more of the same order—what does? What’s so amazing is that one of Greenwald’s admirers, a Times editor, thought it her duty to condemn what should have been an uncontroversial view of the law published in a book review as something beyond the pale. I’ve read the Times for fifty years, and I’ve never seen anything like that. I’d bet that some would-be reviewers hoping to publish in one of the last printed book reviews got the message: you may have a law degree from Harvard, but think twice before you run afoul of a well-situated non-lawyer’s very expansive view of her own profession’s privileges.

Mr. Scialabba then quotes, approvingly, Greenwald’s gracious assurance that he has “no objection to the process whereby the White House is permitted to give input prior to the publication of sensitive secrets...”. In at least one case Greenwald did refrain from publication when he decided that the government might have a case (the name of the ‘second country’, which Greenwald withheld and Assange immediately revealed). This only means that Greenwald assumes the right to substitute his own view of the importance of classified material for that of an elected government, and thinks that if his intentions are pure he ought to be in the clear (“That pre-publication process is both journalistically sensible...and legally wise.”) Mr. Scialabba writes that “I don’t see...that there’s any principled difference between their views of how the First Amendment should apply to the press. If there is, could (Smoler) explain it a bit further?.”

I can try. I have not read every word Greenwald has ever written on the subject, but in the penultimate chapter of his most recent book he gives what I think has always been his position: under his understanding of the First Amendment, after the government offers its views journalists get to distinguish between what classified information too grossly endangers the United States and what can be published. As far as I can tell, Greenwald never clearly says that journalists can ever be justly punished when they publish classified information, and frequently implies that they cannot be or ought not be. The decision in the case of the Pentagon Papers, variously mentioned by both Greenwald and Sullivan, was not about the right to publish with impunity but rather about the government’s right to impose prior restraint, giving as an example the time of sailing of a troopship in wartime as an example of legitimate prior restraint. Under the Court’s decision in that case there is no diminishment of the government’s right to punish the publication of stolen military secrets, only a limitation of its power to preemptively prevent publication of many (but not all) secrets.

When describing whose authority his own imagined reportorial privilege trumps Greenwald never uses the phrases “an elected government” nor (I think) “the law”—he always uses phrases like “the government’s interests”, “government agencies”, “political power”, “the administration”, ”guardians of the status quo”, “dominant institutions”, “institutional authority”, “prevailing orthodoxy”, “officialdom”, “the interests of the dominant political class”, “power”, “the security state” or “a small number of elites working in secret”. None of these evasions, some of them dysphemisms, allow the reader to analytically distinguish between the source of Obama’s power and that of Czar Nicholas I, Mussolini, Franco or Domitian. As for laws which after being passed by legislatures in part controlled by opposition parties and reviewed by courts established by the same, we get phrases like “a federal judiciary that had proved itself shamelessly deferential to Washington”. Yes, it sometimes has, but the alternative is to entrust the decision to whatever comes into Mr. Greenwald’s head. That head does not seem sufficiently commodious to contain all the relevant knowledge (for example, of the danger of revealing vulnerable intelligence sources and crucial and fragile methods), nor does it (nor any other part of Mr. Greenwald) possess any of the legitimate political authority of a democratic and constitutional government. I think that under the First Amendment we are obliged to either obey the laws or test them at some necessary hazard to our liberty, for otherwise we would have no reason not to flout the relevant laws on every occasion, as Mr. Assange just did, on that occasion when Mr. Greenwald didn’t. No more than Jack Cade’s can Mr. Greenwald’s mouth safely be made the parliament of England, nor can anyone’s, which I take to have been Kinsley’s point. It should have been an uncontroversial point. That it hasn’t been suggests either that he is making a different one, or that Mr. Greenwald means something other than what I am pretty sure he has repeatedly said, or that Justice Goldberg’s assurance (and so many others, including Lincoln’s) was mistaken, and the Constitution is a suicide pact.

On the often overstated importance of secret sources and secret methods: while popular historians and novelists, along with all governments, tend to very grossly exaggerate the importance of military secrets, some secrets really do matter. Here’s a famous one: the United States had broken a Japanese naval code which made possible our victory at Midway, but following Midway the fact of it having been broken was almost immediately although indirectly revealed by some American newspapers. Roosevelt seriously considered prosecution, a dangerous choice, for while the Japanese hadn’t noticed they would certainly have taken a second look in the wake of a prosecution. But had the Japanese noticed, or even if they hadn’t, and had Roosevelt prosecuted, would the First Amendment really have forbidden him from doing so? Very few people think so.

Code-breaking similarly made a massive contribution to Allied victory in the Battle of the Atlantic, and that Battle has perhaps more of a claim than any other to have won the war. German ability to frustrate that code-breaking was once demonstrated by a slight technical change, which for ten months very expensively disrupted the acquisition of intelligence on the German submarine threat. Did the First Amendment prohibit a well-intentioned leak of Enigma? What if we had been at peace, as we were when Enigma was first partially broken, and before its results were in any way decisive? Similarly, Richard Sorge is often said to have provided the intelligence that allowed Stalin to win the Battle of Moscow, the other most important battle of the war. Had Sorge been as potentially crucial as is often claimed, but hanged a month earlier after being named in the Chicago Tribune, should the First Amendment have protected that hypothetical journalist and editor?

A couple of years ago certain American intelligence sources and methods were publicized through the means Greenwald and others undertook, leaks which have been widely and variously celebrated. Did it matter? American generals claimed that many of our sources had dried up, that our enemies’ methods had changed, and that the identities of some agents had been exposed. Some people noisily doubted this. Does everyone still doubt it quite so confidently in the wake of the staggering surprises at Mosul and in Crimea? Our Republic will not fall because of what happens to people in Mosul and Crimea. But very bad things will happen—have already happened—and not impossibly because of those leaks. Should a jury decide on whether a crime has been committed, or must we assume in advance that no crime was possible?

From July, 2014

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