Panel Report: Investigative Journalism and National Security

AuthorZachary D. Streit
PositionJ.D. expected June 2007 from the Benjamin N. Cardozo School of Law.

    Zachary D. Streit: J.D. expected June 2007 from the Benjamin N. Cardozo School of Law. Managing Editor, Cardozo Public Law, Policy, and Ethics Journal. B.A, summa cum laude, Yeshiva University. Mr. Streit attended the lecture, communicated with the panelists, and prepared this summary. He wishes to thank Professor Ellen Yaroshefsky, Rachel Steamer and the entire Journal staff for their assistance.

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The "secret evidence" debate, i.e., the debate over exactly what information should remain secret, is not merely a debate being waged in the judiciary between a government opposed to the propagation of some of its most sensitive war-time secrets and an accused asserting an opportunity to contest the government's evidence. Indeed, beyond the province of the judiciary, the United States Government and the media are said to be in the throes of a very similar imbroglio. That the United States Government, on the one hand, has a compelling interest in keeping its clandestine military operations and intelligence-gathering activities a secret is virtually axiomatic. That the media, on the other hand, has an equally compelling interest in reporting on the government's secret activities to ensure a degree of transparency is a formidable counterweight.

However, there is one major difference between conflict in the judiciary and that in the press: While the debate stemming from the use of secret evidence in litigation is often stifled by stone-walled courtrooms, the secret evidence debate between the government and media reverberates resoundingly in the public sector. In this age, quickly and rightly being dubbed one of national security, neither the legal community nor the general public can pick up a newspaper or turn on a television without witnessing some form of this ongoing debate.

I The Panelists

The panel was composed of five journalists and only one lawyer, reflecting the extrajudicial nature of this facet of the secret evidence debate. The moderator, Nicholas Lemann, is the Henry R. Luce Professor Page 76 and Dean of the Columbia University Graduate School of Journalism. Dean Lemann, a Harvard graduate, is widely known for holding a staff writer position at the New Yorker and for authoring numerous books, including The Promised Land: The Great Black Migration and How It Changed America and The Big Test: The Secret History of the American Meritocracy. His journalistic experience includes stints at the nation's top newspapers and publications, including the Washington Post, the Washington Monthly and the Atlantic Monthly.

The first speaker, Scott Armstrong, is an investigative journalist and the executive director of Information Trust, a non-profit organization focused on facilitating freedom of expression in the United States and abroad. Information Trust utilizes access to information as a mechanism for holding governments accountable. Mr. Armstrong has authored, edited, and worked on several books, including The Brethren with Bob Woodward and The Final Days with both Woodward and Carl Bernstein. As a senior investigator for the Senate Watergate Committee, Mr. Armstrong's interview of White House official Alexander Butterfield revealed the Nixon taping system. He is also the founder of the National Security Archive, a private not-for-profit research institute that provides journalists, scholars, and the general public with comprehensive government documentation. In addition to working as a journalist, consultant, and commentator for ABC News, CBS News, CNN, and National Public Radio, as well as for several newspapers, Mr. Armstrong has won an Emmy Award and a DuPont Silver Baton for his reporting on the Iran-Contra affair.

The second speaker, Eve Burton, is vice president and general counsel of the Hearst Corporation, one of the largest diversified communications companies in the world. Ms. Burton, the sole lawyer on the panel, previously served as vice president and chief legal counsel at CNN, where she led the network's ultimately successful campaign to obtain audio transcripts of the Supreme Court oral arguments in Bush v. Gore. Ms. Burton, who received her J.D. from the Columbia University School of Law, was a senior litigation associate at Weil, Gotshal & Manges; prior to that, she served as a clerk for the Honorable Leonard B. Sand in the United States District Court of the Southern District of New York. Ms. Burton has also held the positions of vice president and deputy legal counsel at the New York Daily News.

The third speaker, Stephen F. Hayes, is a senior writer at The Weekly Standard and author of The Connection: How al-Qaeda's Collaboration with Page 77 Saddam Hussein Has Endangered America. Mr. Hayes has also worked as a senior writer for National Journal's Hotline and as a director for the Institute of Political Journalism at Georgetown University. His work has appeared in the New York Post, the Washington Times, Salon, National Review, and Reason. He has been a commentator on CNN, The McLaughlin Group, the Fox News Channel, MSNBC, CNBC, and C-SPAN.

The fourth and final speaker, Dana Priest, is both an analyst for NBC News and a staff writer for the Washington Post, covering the intelligence community and national security issues. Ms. Priest's widely acclaimed 2003 book about the military's expanding responsibility and influence, THE MISSION: Waging War and Keeping Peace with America's Military, won the prestigious New York Public Library Bernstein Book Award. In her nineteen years at the Post, Ms. Priest has written extensively on the Central Intelligence Agency's (CIA's) covert counterterrorism campaigns, including its rendition, interrogation, and detention practices; the pre-war intelligence in Iraq; and the government?s effort to build a homeland security department. In 2006, Ms. Priest was awarded the Pulitzer Prize for Beat Reporting for her coverage of the CIA's secret war on terror-the same articles discussed with this panel. Among her many other accolades, Ms. Priest was awarded the MacArthur Foundation Research and Writing grant and the Gerald R. Ford Prize for Distinguished Reporting on the National Defense.

II Framing the Issues

The moderator opened by asking the panelists to focus their remarks on two questions: where should the line be drawn between information that is legitimately kept secret and information that should be made accessible to the public, and has that line moved in the post-September 11 world and if so, exactly how has it moved and to where has it moved? Dean Lemann then indicated that he would pose individual questions to the panelists after their remarks.

III Panelist Presentations
A Scott Armstrong

Mr. Armstrong, the first panelist to speak, began by asserting that the government promulgates a culture of secrecy. This leads reporters discussing secret matters with government officials to tacitly presume that they are "on deep background." Information obtained on deep Page 78 background can be used, but may not be attributed without explicit permission to the contrary. The problem with the presumption of deep background, argued Mr. Armstrong, was embodied in Potter Stewart's proclamation about the Pentagon Papers-when everything's secret, nothing is secret.1 General Richard Stillwell, the top military intelligence man in the Reagan administration, estimated that 83% of classified material didn't need a "confidential" designation, based on a study conducted by Stillwell. Years later, when pressed by Mr. Armstrong, General Stillwell raised that number to 95%, making, in the words of Mr. Armstrong, the "Stewart adage a given."

Mr. Armstrong then went on to argue that the purpose of government secrecy is rarely to protect national security, i.e., preventing the disclosure of secrets to hostile nation-states and terrorists; rather, government secrecy is really about controlling the flow of information. Controlling the flow of information is by no means limited to the government suppressing merely what it knows. Mr. Armstrong contends that in fact, the Executive is intent on suppressing what it does not know, since revelation of what a governing entity does not know is often far more injurious than mere revelation of what is known.

From whom does the government seek to cloak information? Mr. Armstrong believes that the Executive seeks to ebb the flow of information to a number of entities, including the press and the public, Congress (even a Congress of the same party), other departments within the executive branch, hostile nation states, and, only lastly, terrorists. Al- though protecting America from hostile threats is a relatively low priority on the secrecy rationale hierarchy, the Executive is still creating a culture of zealous over-confidentiality. Unnecessarily classifying information as confidential is the most efficient Executive suppression tool, and therefore the strategy most often used.

Causality, however, demands that every action generates a reciprocal reaction, and creating a culture of over-confidentiality is no exception. The practice of gratuitous classification of evidence as secret has resulted in a countervailing shift in the role of the media. In the past, the media had devoted their energy to raising the government's awareness on a wide range of issues. "There was a time when the press was Page 79 the hammer to the Congress's anvil," avowed Mr. Armstrong. Today, however, the press is still the hammer but it is "swinging in air, because there's not a congressional committee that seems to hold anything remotely resembling an oversight hearing, and those things that are done in the name of oversight are done very narrowly by people usually in the minority," asserted Mr. Armstrong...

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