When National Security Threatens Press

Freedom: The New York Times N.S.A.

wiretapping story

Jennifer Herseim
Ethics Paper
 Herseim 2

A decade after the terrorists attacks on Sept. 11, 2001 people still argue how far

the government should go in order to protect national security. Somewhere in the debates

a divisive issue arises between protecting American lives and protecting American civil

liberties, a sensitive subject that former president George W. Bush agitated with his

decision to allow security agencies far more power and reach into private American lives

than any previous administration.1

Bush ordered the National Security Agency, a secret intelligence branch, to

wiretap and spy on domestic citizens who were communicating with individuals abroad

without obtaining warrants.2 Before the executive permission, the N.S.A. was required to

obtain warrants from a secret court before engaging in spying activities on domestic

individuals. The president’s permission gave the N.S.A. the green light to skirt this legal

process.

The New York Times’ Eric Lichtblau and James Risen broke the domestic spying

story on December 16, 2005. The exposé outlined how the network of individuals that

the N.S.A. watched grew exponentially over the years since Bush allowed the warrantless

spying in 2002. The story showed that the government bypassed the court-ordered

warrant system, but the article avoided specific details about the way the N.S.A. gathered

wiretapping information.

A small paragraph within The New York Times’ article stated that the paper

chose to delay publication of the story for over a year based on requests from

1
Nancy Palmer, Terrorism, War and the Press. President and Fellows of Harvard College.
(President and Fellows of Harvard College, 2003) 272.
2
Risen, James and Eric Lichtblau, “Bush Lets US Spy on Callers without Courts” 2005,
New York Times. 16 December 2005.
 Herseim 3

administration officials and the president, himself, that the story be kept secret because it

would compromise the efforts of the N.S.A. and national security.

The ethical provocation of the New York Times’ decision to hold the story for a

year and then to subsequently release it against the requests of the administration is to

posit two principle democratic notions against one another. The clash between national

security and press freedom rarely escapes wartime reporting. The “War on Terror” was

no exception.

In the 1919 landmark case, Schenk v. United States, the court decided that in

times of war certain freedoms of speech may be limited if they present a “clear and

present danger.”3 In some previous cases the government employed prior restraint to

legally restrict publications from printing sensitive material. For example, when

Progressive Magazine attempted to publish a “How-To” on building a Hydrogen bomb,

national officials had the story shut down through court action.4 The government was

unable, however, to prevent the hydrogen bomb information from leaking to other

publications. In contrast, the government failed to revoke publication in the 1970s

Pentagon Papers case, which attempted to stop publication of a Washington Post exposé.

Other times, top editors would grant official requests for changing or holding stories. In

all cases, those involved needed to weigh the constitutional rights of the First

Amendment with the direct consequences of leaking confidential information regarding

national security.

In other situations where legal prior restraint is not pursued, the decision-making

process involves the closed-door negotiations between top administration officials and

3
SCHENCK V. UNITED STATES, 249 U. S. 47 (1919) US Supreme Court Center
4
Lichtblau, Eric, Bush’s Law (New York. Pantheon, 2008)
 Herseim 4

top-level editors and media CEOs. Ideally, the two sides debate the best interests of the

American public. In “The Media and the War on Terror” Marvin Kalb asks senior

administration officials about the relationship between press reporters and security

officials. Rather than leave these decisions to the judicial system, R. James Woolsey says

the decision to not publish or to go ahead with a story “ought to be voluntary.”5

In the New York Times case, publication was stalled in order to allow further

reporting and to omit certain details from the final story.6 One of the ethical codes of the

Society of Professional Journalists is to “seek truth and report it.”7 After delaying the

story for a year, the Times had an ethical obligation for explaining to their readers why

they chose to delay publication. Reasoning that the Times’ role as a news outlet entails

the “watchdog” function of the press, they must recognize a responsibility for exposing

unconstitutional practices within the government. When a story includes specific

practices that will reveal classified information integral to national security, however, the

newspaper must weigh the decision to fulfill its watchdog role with the harm the story

could cause.

According to Kant’s theory, the absolute laws of not censoring newspapers and

abiding by the Constitution would morally necessitate the publication of the N.S.A. story

because the reporters believed the N.S.A.’s actions were unconstitutional.8 Using

Thomas Bivins’ “Checklist for Ethical Decision-Making,” Kant’s absolute laws come in

conflict with utilitarian and noninjury ethical considerations.

5
Hess, Stephen and Marvin Kalb, The Media and the War on Terrorism (Washington
D.C. Brookings Institute, 2003) 53
6
Risen and Lichtblau
7
The Society of Professional Journalists, “Code of Ethics” 1996
http://www.spj.org/ethicscode.asp.
8
Thomas H. Bivins, “Checklist for Ethical Decision-Making” 2004, Mixed Media, 177.
 Herseim 5

From a utilitarian perspective, the largest claimant group involved in the story

would be the majority of the American public. If the story would reveal information that

would prevent the N.S.A. from unearthing potential terrorists, then the U.S. public may

be in danger from those potential terrorists attacking the country. In this scenario, the

publication would be detrimental to the majority of the public and not publishing would

harm only a minority – those who are being unfairly or unconstitutionally watched by the

government. The Kantian and utilitarian theories seem to be in conflict, except that Kant

wouldn’t allow the harm done to one person to justify a means to an end.9

From Bivin’s perspective, each situation should be determined through individual

investigation because “blind adherence to any rule can lead to callousness.”10 Setting

Kant and utilitarianism aside, the New York Times case involves several clashing ideals

that need to be prioritized. First, an ideal governing journalistic responsibilities requires

news outlets to report instances when the government breaks the law. In the New York

Times case, although the court decided the N.S.A. program was unconstitutional after the

story revealed the program, the reporters could figure out earlier that the law required

warrants for wiretaps on domestic citizens and the government was breaking that law.

Another journalistic ideal is the obligation to “minimize harm”.11 The Times needed to

weigh the potential harm to the public, if classified information in the story threatened

national security.

The year in which Times reporters delayed the N.S.A. story focused on reviewing

the aspects of the story that might affect national security. Although highly classified

information in closed-door meetings with top government officials all the way up to
9
Bivins, 172.
10
Bivins, 168.
11
Society of Professional Journalists, “Code of Ethics”.
 Herseim 6

president revealed more detail about the N.S.A. than the reporters knew, the Times

honored Bush’s request to exclude these details from the final story.12 The Times omitted

certain details regarding specific spying techniques to alleviate some of the potential

harm done by the story.13 Despite these concessions, the federal government still resisted

publication of the story calling it a risk to citizens and illegal because it “alerts our

enemies and endangers our country.”14 These claims rest on the argument that revealing

any information about the program including its existence will alert potential terrorists.

Rachel Smolkin interviewed the New York Times’ reporters and editors about

what went on in between the time when the Times decided to hold the story and when

they finally published it.15 Washington Post Editor Leonard Downie Jr. told Smolkin that

in ethical cases involving national security everyone on both sides understands the

overarching ethical situation involved, so they discuss the details: “We understand the

territory in which we're talking. We're usually very specific,” Downie said.16 Lichtblau

said that the Times got over the Bush administration’s first objection that publishing the

story would alert Al-Qaeda that they were monitoring their calls and emails by arguing

that terrorists already knew this from Bush’s speeches.17 The dialogue between editors

and the Bush administration moved to concerns about specific spying techniques the

N.S.A used and the administration’s worry that those methods would be useless, if

exposed by the article. But the Times’ editors and reporters reviewed the story and,

12
Lichtblau. Bush’s Law, 194.
13
Rachel Smolkin, “Too Transparency?” April/May 2006, American Journalism Review,
http://www.ajr.org/Article.asp?id=4073.
14
“President Bush’s Address” 2005, The New York Times
http://www.nytimes.com/2005/12/17/politics/17text-bush.html.
15
Rachel Smolkin, “Judgment Calls.” American Journalism Review. Oct./Nov. 2006
16
Smolkin. Rachel. “Judgment Calls”.
17
Lichtblau, 195.
 Herseim 7

without naming specific activities, refocused it on the question of whether it was legal to

employ those techniques without warrants.

The Times’ justifications for holding the piece were called into question by critics

who claimed the Times’ reporters were guilty of treason for publishing national secrets

and critics within the journalism industry who questioned why the Times waited so long

to divulge the information. Since the story was delayed over the course of the 2004

election, some critics wondered how the story might have changed the result of the

election, if it were released earlier.18

The Times was dealing with an administration that set an “all-time record” for

classifying previously public documents, according to the Information Security Oversight

Office.19 Among the motivations balanced in publishing the story were the Bush

administrations’ noted penchant for secrecy and the Times’ sources’ reasons for leaking

the information – in addition to the threat the information posed to national security.

In Newsweek’s profile of the first Times’ source whose leak provided the catalyst

for the N.S.A. piece, the source talked about several other officials from both political

parties who disagreed with the constitutional legality of what the N.S.A. program was

doing.20 The Times had multiple anonymous sources who agreed with these

constitutional concerns.

Since the Times published the story a deluge of civil cases challenging the N.S.A.

program may overshadow the ethical journalism issue the case presents.21 In this case,

hindsight is powerful. If the public and the court system decided to side with the
18
Smolkin, Oct./Nov. 2006.
19
Palmer, 272.
20
Isikoff, Michael, “The Whistleblower who exposed Warrantless Wiretaps” Newsweek.
Dec. 13. 2008.
21
Lichtblau, Eric, “The Education of a 9/11 reporter” Slate.com, 26 March 2008.
 Herseim 8

government, then the news would circle around how the Times put Americans in danger.

In making their final judgment, the Times editors decided that the overall focus of the

story would not jeopardize the N.S.A.’s legal activities.

In reviewing this ethical case, the Times, along with other editors who have

considered the national ramifications of publishing stories involving security, must

review its original role as a news agency. Watchdog journalism, or the responsibility of

the press to watch over government, is one of the fundamental tasks of a free press and a

powerful factor in a fair democracy. During war times, when officials and the public

may become swept up in patriotic tones and are willing to overlook the law, the press

functions as a reminder of government power and abuse.

In the N.S.A. case, the abuse of power and overstepping of legal boundaries

threatening the country needed to take higher priority over the possibility of revealing

sensitive material. The New York Times effectively used the one-year delay of

publication to recheck their facts and ensure that any detail of their story did not

egregiously endanger the public. The Times was able to limit the harm done to the public

while still upholding the ideal watchdog role of journalism by publishing the final story

without specific details about the N.S.A. program. Ample time and notice were given to

government officials so that they were able to control the political harm done by the

story, and overall the Times was able to separate the potential harm done to the Bush

administration from the harm done to the country.