By Uchenna Ekwo
The controversy regarding the Department of Justice spying on journalists notably reporters of Associated Press has again brought into vortex the controversy over the control of information flow in a democratic society and the imperative of national security.
It is a delicate balance to achieve unfettered information flow and at the same time keep secrets that are necessary to preserve national security. There will always be a challenge in balancing national security needs against the public’s right to the free flow of information.
The dilemma faced by journalists under the climate of government secrecy and intense desire for freedom of expression and free flow of information among citizens engaged the attention of participants at the second annual Media and Democratic Governance Conference sponsored by Center for Media & Peace Initiatives and Rutgers University last month. The debate that ensued during the question and answer session of that conference mirrored the ongoing national debate about the surveillance of Associated Press reporters by the Obama administration.
Listening to comments on the recent AP/DOJ flap by former Attorney-General Alberto Gonzales of the Bush administration, it appears that the struggle over the control of information between journalists and government cuts across political and ideological leanings. Historically, it has happened in Democratic and Republican administrations. According to Gonzales, his Justice Department experienced a situation where it had to pursue a leak investigation that also required investigating journalists. But, after weighing the implications of preserving national security and the furor that would follow in investigating journalists, the Justice Department under him bowed to journalists’ freedom.
Clearly, the first amendment to the constitution that says in part that “Congress shall make no law… abridging the freedom of speech or of the press…” gives journalists the superiority over any other arm of government in the struggle for control of information in a democratic society. Acknowledging this reality is the right thing to do.
The move by the White House to reintroduce a press shield law in the wake of the seizure of Associated Press phone records by the Justice Department (as part of a national security leak investigation) is therefore appropriate.
Shield laws protect journalists from being forced to reveal their sources. If shield laws are enacted, the legislation will protect reporters’ privilege and guarantee the right of news reporters to refuse to disclose sources of information obtained in course of performing their professional duties of news gathering and dissemination. Renewed attempt to pass a law to protect journalists was scuttled in Congress in 2009 following the furor emanating from the Wiki Leaks saga in which Julian Asange published thousands of diplomatic cables.
During the Bush administration, the outing of a CIA agent Valerie Plame by the late Bob Novak triggered a chain of events that led to the prosecution Judith Miller of New York Times, and Mathew Cooper of Time Magazine. In that instance, little or no regard was paid to reporters’ privilege as the refusal of New York Times reporter to disclose her source of information earned her a jail time.
What is most troubling is that successive administrations will continue to have challenges on how to deal with leakage of official secrets. With that in mind, it seems to me that the idea of having secrets in government is anachronistic especially considering the nature of contemporary information society where information flow moves with lightening speed. The degree of openness and quest to end secrecy have never been this high. So, a resort to secrecy is foolhardy.
Policy makers must come to terms with this reality and stop the periodic drama and knee-jerk reaction to arbitrary abuse of media freedom. Although many leaders in both sides of the aisle including President Obama have expressed outrage in the secret surveillance of telephone records of AP reporters, some law makers have signaled that they would oppose any legislation that will accord special privilege to reporters.
It is really a quagmire. In the wake of the killing of Osama Bin Laden, some lawmakers insisted that the Obama administration should investigate the frequent leaks to reporters about sources and methods that led to the capture and elimination of the notorious terrorist. At the time, Republican lawmakers believed the administration was deliberately leaking information to make it look good in the eyes of the public especially within months of a presidential election last year.
The drone attacks on suspected terrorists were another issue that elicited requests for investigation into the leakage of national security secrets. In response to growing demands of Congressional Republicans, the Obama administration swung into action but that move has now landed it into trouble with the revelation that the Justice Department grabbed of phone records from 100 Associated Press reporters. What’s the best option? Make an effort to investigate leakers, leakees, reporters, and run afoul of the law. You ignore requests to track leakages of official secrets; you attract the condemnation of the opposition party. Difficult choices indeed!
The dilemma for the administration and indeed all Americans is how to appear nonpartisan in protecting national security, responding to the demands of hawks among us, and also guarantee the free flow of information by purveyors of information. Let the AP flap be the last. It is a wish because it will happen again.
Dr. Uchenna Ekwo is a professor of public affairs and administration, Rutgers University, Newark and President at the Center for Media & Peace Initiatives