David Adler: On national security and freedom of the press

Special to the Idaho StatesmanMarch 13, 2014 

The great right and duty of the press — to inform the American people about governmental actions — has been championed since Samuel Adams urged newspapers to "tell the truth" about the tyranny of the Stamp Act. It was, and always will remain, the cornerstone of American democracy.

In a republic, James Madison explained, the sovereign people depend on the press, which therefore must be free to "canvass the merits and measures of public men." Madison's deep belief in the indispensable role of the press in promoting governmental accountability and transparency, "chequered as it is with abuses," convinced him to enshrine "freedom of the press" in the First Amendment.

A free press is also indispensable to the maintenance of America's national security. The perceived tension between national security and freedom of the press exploded in 1971 in the famous Pentagon Papers Case. Judge Murray Gurfein, who delivered the first ruling rejecting the Nixon administration's effort to impose prior restraint on The New York Times, captured the essential role of the press in promoting national security: "The security of the nation," he wrote, "is not at the ramparts alone. Security also lies in the value of free institutions."

Justice Potter Stewart agreed. In a concurring opinion in the Times' case, Stewart observed that in the area of national security, the usual congressional and judicial checks and balances on presidential power are often missing, given the broad deference of those branches to the executive. Accordingly, "the only effective restraint upon executive policy and power may lie in an enlightened citizenry."

Stewart spoke truth to power. In an era in American history when the government broadly defines national security interests and uses the classification system to maintain an enormous amount of information in the name of national security, there is a great temptation among officials to curtail freedoms by lowering a curtain to withhold from the citizenry information critical to the formation of public opinion.

In our time, few journalists have been as adept as Charlie Savage, a Pulitzer Prize-winning reporter at The New York Times, at drawing back the curtains behind which officials have developed doctrines, rationales and formulas for withholding from the public programs and policies concerning the foreign policy and national security of the United States. Since the 9/11 outrage, Savage has been at the forefront of reporting on practices ranging from rendition and interrogation methods to the ways and means of imposing secrecy on the promulgation of secret laws in the United States.

If the concept of "secret law" frightens you, it should. The essence of American constitutionalism involves the enactment and publication of rules and laws governing our nation. Secret law is anathema to the very premise of freedom. Since 2001, however, the court created under the Foreign Intelligence Surveillance Act has generated secret law.

In yet another in a long string of news-breaking stories, Savage's reporting revealed in the Times on Tuesday new details in the dramatic transformation, and expansion, of the FISA court from one that sits to evaluate governmental requests to engage in wiretapping to one that has become an interpreter of national security law. The result is a growing body of secret law.

At 7 p.m. Tuesday, March 18, Savage will deliver a public lecture on "National Security and Freedom of the Press," the Andrus Center's inaugural "Freedom of the Press Lecture." The talk, held in the Simplot Ballroom of the Boise State University's student union ballroom, is free and open to the public. Free parking is available in the Lincoln Garage.

David Adler is the Cecil D. Andrus professor of public affairs at Boise State University, where he serves as director of the Andrus Center for Public Policy.

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