The rush of commentary on the Obama administration's efforts to equate investigative reporting with espionage has brought to a new pitch the tension between the perceived need for governmental secrecy and the virtues of freedom of the press.
When an administration seizes journalists' telephone records and emails, and tracks reporters' movements, it puts reporters on notice, chills investigations of governmental actions, dries up reporters' sources and deters whistle-blowers and leakers.
If these practices, part and parcel of an attempt to define investigative journalism as criminal behavior, had become a pattern decades ago, Americans would have been deprived of journalistic disclosures that illuminated governmental deceit about the conduct of the Vietnam War, the Watergate cover-up, the CIA's network of secret prisons, the National Security Administration's eavesdropping program and the practice of waterboarding detainees. Without these disclosures, the government would have escaped accountability.
Governmental accountability is central to the maintenance of republican values and constitutional principles. Government officials cannot be held accountable for actions that have not been disclosed. As a consequence, executive secrecy cannot become an issue unless someone in a position to question it has decided to make an issue of it. That "someone" might be a member of Congress, but more often than not it is a reporter digging out the facts, bringing transparency to governmental actions, and exposing deceit and corruption, all in the name of informing the people.
"Our liberty cannot be guarded," Thomas Jefferson wrote, "but by freedom of the press." The Free Press Clause, often characterized as "the people's right to know," was designed to protect independent reporting on the affairs of government so that the sovereign people would not be dependent on self-interested governmental officials' determination of what the people ought to know.
The tension between the perceived need for secrecy and freedom of the press, long a simmering issue in the politics of American life, exploded in 1971 in the landmark Pentagon Papers Case, when the Nixon administration sought to prohibit The New York Times and The Washington Post from publishing reports that revealed governmental deceit about the conduct of the Vietnam War.
The Supreme Court, acutely aware of the executive invocation of "national security" claims to hide political activities and embarrassing incidents, dismissed the administration's claims that publication would "irreparably damage" our national security interests. The court also extolled the virtues of freedom of the press, as envisioned by the nation's founders, and gave a green light to publication of the papers.
Secrecy has its claims, particularly in the realm of diplomacy and military activities, but problems abound. Executive abuse of the secrecy stamp has rightly resulted in skepticism.
Another problem involves the identification of the constitutional repository of authority to determine what the citizenry has a right, or a need, to know. Whoever has the authority to declare secrecy wields tremendous power. In the early days of the republic, Congress often made the decision, although usually in consultation with the president. Article 1, Section 5 of the Constitution - the only provision to address "secrecy"- granted to Congress, through publication of its journals, the authority to decide what information to withhold from the public. The Constitution grants to the president no comparable authority.
The framers of the Constitution, who exhibited a deep fear of executive power, had, by virtue of the separation of powers, entrusted legislators with the right and power to lawfully regulate secrecy. But Congress, for its own political and policy rationales, has failed to circumscribe executive secrecy. Indeed, the rise of the Imperial Presidency has been built, in part, on executive control of information, and the claim of authority to impose secrecy. Congressional failure has left it to reporters to maintain governmental transparency and accountability.
It's fair to say, historically speaking, that the press has performed its responsibility pretty effectively. The press may not be Americans' favorite institution, but it is critical, as Jefferson said, to the maintenance of our liberty. Efforts to subvert press freedom should be required to meet the highest standard - reporting that would inflict "irreparable damage" on our national security. It's hard to imagine any recent reporting that has risen to that level.
Adler is the director of the Andrus Center for Public Policy at Boise State University, where he holds appointment as the Cecil D. Andrus Professor of Public Affairs. He has lectured nationally and internationally on the Constitution, presidential power and the Bill of Rights.