JUDGEMENT CALLS

On October 5, 2006, I went to Southern Methodist University in Dallas to give the annual Sammons Lecture on Media Ethics. As you can read in this excerpt, I took a poll of the audience — actually three polls — to see where they came down on three controversial news stories that the Bush Administration sought to keep out of the news. The results were interesting — and surprising.

TO ME, THERE ARE TWO KINDS OF ETHICAL DILEMMAS FOR JOURNALISTS: THE KIND THAT ANY FOOL CAN SEE IS TRANSPARENTLY WRONG…AND THE KIND OVER WHICH HONEST PEOPLE CAN DIFFER.
THE FIRST CATEGORY IS EASY: IT IS TRANSPARENTLY WRONG WHEN JAYSON BLAIR FABRICATES QUOTES AND WHOLE STORIES FOR THE NEW YORK TIMES, IT IS TRANSPARENTLY WRONG WHEN STAR FOREIGN CORRESPONDENT JACK KELLY MAKES UP STORIES FOR USA TODAY, IT IS TRANSPARENTLY WRONG WHEN A COLUMNIST LIKE ARMSTRONG WILLIAMS TAKES $240,000 TO PROMOTE THE ADMINISTRATION’S PET PROJECT, THE NO CHILD LEFT BEHIND ACT. IT IS TRANSPARENTLY WRONG FOR OSTENSIBLY INDEPENDENT MIAMI JOURNALISTS TO TAKE GOVERNMENT MONEY TO APPEAR ON RADIO AND TELEVISION MARTI.
NO ONE ARGUES THAT THESE THINGS ARE WRONG AND WHEN THEY ARE UNCOVERED, NEWS ORGANIZATIONS GENERALLY DO A GOOD JOB OF DISCLOSING AND CORRECTING THEM.
THE SECOND CATEGORY IS MORE PROBLEMATIC. THAT’S WHERE I WANT TO FOCUS TONIGHT. I’M GOING TO TALK BRIEFLY ABOUT THREE MAJOR NEWS STORIES IN THE LAST YEAR THAT POSED DIFFICULT, ARGUABLE PROFESSIONAL AND ETHICAL CHALENGES TO MAJOR NEWS ORGANIZATIONS. THEN I’M GOING TO ASK YOU TO TELL ME WHETHER YOU BELIEVE THE NEWSPAPERS MADE THE RIGHT DECISION OR NOT.
IN EACH CASE, THE BUSH ADMINISTRATION INTERCEDED AT THE HIGHEST LEVELS WITH THE NEWSPAPERS NOT TO PUBLISH ON GROUNDS OF PROTECTING NATIONAL SECURITY. IN EACH CASE, THE NEWSPAPERS LISTENED TO THE ADMINISTRATION’S ARGUMENTS… AND WENT AHEAD AND PUBLISHED.
AND IN EACH CASE, I AM GOING TO ASK YOU TO INDICATE BY A SHOW OF HANDS WHETHER YOU THINK THE NEWSPAPERS WERE RIGHT OR WRONG.
AS A CONTEXT: CONSIDER FOR A MOMENT THE PORTION OF THE FIRST AMENDMENT THAT IS CHISELLED ON THE FRONT OF THE JOURNALISM BUILDING HERE AT SMU: IT READS IN PART: “CONGRESS SHALL MAKE NO LAW…ABRIDGING THE FREEDOM OF SPEECH OR THE PRESS.” IT DOESN’T SAY SOME LAWS, OR A FEW LAWS, IT SAYS “NO LAW.”
BUT THE CASES WE’RE GOING TO DISCUSS TONIGHT ARE NOT THAT CLEAR-CUT. SOME MEMBERS OF CONGRESS HAVE ARGUED THAT THE NEWSPAPERS VIOLATED THE LAW AND SHOULD BE PROSECUTED FOR PUBLISHING SENSITIVE, CLASSIFIED MATERIAL.
BUT MOST PEOPLE AGREE THAT THE NEWSPAPERS WERE WITHIN THEIR LEGAL RIGHTS WHEN THEY PUBLISHED. THE QUESTION IS WHETHER THE DECISION TO PUBLISH — AND THEREBY DISCLOSE SOME EXPLOSIVELY SENSITIVE INTELLIGENCE MATTERS — WAS RIGHT OR WRONG IN ETHICAL TERMS.
THE FIRST CASE WAS AN ARTICLE PUBLISHED BY THE NEW YORK TIMES LAST DECEMBER 16 THAT REVEALED THAT PRESIDENT BUSH HAD AUTHORIZED THE NATIONAL SECURITY AGENCY TO EAVESDROP ON AMERICANS AND OTHERS WITHIN THE UNITED STATES WITHOUT COURT ORDERS. THE TIMES REPORTED THAT OVER THE LAST THREE YEARS, THE PHONES OF HUNDREDS AND PERHAPS THOUSANDS OF AMERICANS HAD BEEN TAPPED IN AN EFFORT TO UNCOVER TERRORIST PLOTS AGAINST THE UNITED STATES.
THE STORY, WHICH SUBSEQUENTLY WON THE PULITZER PRIZE, CAUSED A SENSATION. PREVIOUSLY, THE NSA — THE NATION’S LARGEST AND MOST SENSITIVE INTELLIGENCE AGENCY: (SO SECRET THAT PEOPLE JOKE THAT INITIALS STAND FOR “NO SUCH AGENCY”) — COULD NOT LISTEN TO THE PHONE CALLS OF AMERICANS UNLESS IT OBTAINED A WARRANT FROM A SPECIAL COURT.
CRITICS CHARGED THAT THE PROGRAM WAS AN INVASION OF THE PRIVACY AND CIVIL LIBERTIES OF AMERICANS, WHO ARE PROTECTED UNDER THE FOURTH AMENDMENT AGAINST UNREASONABLE SEARCH AND SEIZURE.
THE ADMINISTRATION DEFENDED THE PROGRAM AS NECESSARY AND JUSTIFIED UNDER THE RESOLUTION PASSED BY CONGRESS IN SEPTEMBER, 2001 — SHORTLY AFTER 9/11 — THAT AUTHORIZED THE PRESIDENT TO WAGE WAR ON AL QAEDA AND OTHER TERRORIST GROUPS.
THE TIMES ARTICLE INCLUDED THIS PARAGRAPH:
“The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.
IN FACT, IT WASN’T JUST THE WHITE HOUSE THAT ASKED THE TIMES TO HOLD OFF. PRESIDENT BUSH HIMSELF PERSONALLY APPEALED TO THE PAPER AS A MATTER OF HIGHEST NATIONAL PRIORITY.
ON DECVEMBER 5TH, 2005, 10 DAYS BEFORE THE ARTICLE APPEARED, THE PRESIDENT SUMMONED THE PUBLISHER, ARTHUR SULZBGER JR., THE EDITOR, BILL KELLER, AND THE WASHINGTON BUREAU CHIEF, PHIL TAUBMAN, TO THE OVAL OFFICE TO ARGUE HIS CASE. KELLER LATER SAID PUBLICLY THAT HE PRESIDENT WARNED HIM THAT HE WOULD HAVE — QUOTE “BLOOD ON HIS HANDS” IF HE WENT AHEAD AND PUBLISHED THE STORY AND THE UNITED STATES SUFFERED ANOTHER TERRORIST ATTACK.
IN FEBRUARY OF THIS YEAR, VICE PRESIDENT DICK CHENEY TALKED ON THE NEWSHOUR WITH JIM LEHRER ABOUT THE IMPACT OF THE PUBLIC DISCLOSURE OF THE NSA SURVEILLANCE. LET’S LISTEN TO THE TAPE:
“VICE PRESIDENT DICK CHENEY: Now there are a number of members of Congress
who didn’t know about the program until it was leaked. That was intentional
in the sense that we were trying to restrict it as much as possible so that
the program would retain its effectiveness. The biggest problem we’ve got
right now, frankly, I think is all the public discussion about it. I think
we have in fact probably done serious damage to our long-term capabilities
in this area because it was printed first in The New York Times and
subsequently because there have been succeeding stories about it.
JIM LEHRER: So you never intended this to ever get out?
VICE PRESIDENT DICK CHENEY: Correct.
JIM LEHRER: This would remain a secret forever? That was the intention of
the administration?
VICE PRESIDENT DICK CHENEY: Well, certainly as long as there was a war on.
SINCE THE SO-CALLED GLOBAL WAR ON TERROR APPEARS TO BE OPEN-ENDED, THAT COULD BE QUITE A LONG TIME.
SO, WHAT DO YOU THINK? WAS THE TIMES RIGHT TO GO AHEAD AND PUBLISH ON THE GROUNDS THAT IT WAS IMPORTANT FOR THE PUBLIC TO KNOW WHAT ITS GOVERNMENT IS DOING? RAISE YOUR HANDS IF YOU AGREE.
(Two-thirds of the audience agreed with the Times’ decision.)
OR WAS THE ADMINISTRATION RIGHT THAT THE STORY SHOULD NOT GET OUT IN ORDER TO KEEP POTENTIAL TERRORISTS IN THE DARK ABOUT THE SURVEILLANCE? RAISE YOUR HANDS.
(One third agreed with the government’s argument.)
AS A POSTSCRIPT, I BELIEVE THAT THE PROGRAM CONTINUES TO OPERATE TO THIS DAY. SO, IF YOU ARE CHATTING WITH ANY FRIENDS IN AL QAEDA ON THE PHONE, EXPECT TO BE LISTENED TO.
AND IF YOU HAVE ANY DOUBTS THAT THIS HAS BECOME A POLITICAL FOOTBALL, LISTEN TO WHAT PRESIDENT BUSH SAID ON TUESDAY OF THIS WEEK — TWO DAYS AGO — AT A FUNDRAISER IN CALIFORNIA.
“If you don’t think we ought to be listening in on the terrorists, then you ought to vote for the Democrats. If you want your government to continue listening in when Al Qaeda planners are making phone calls into the United States, then you vote Republican.”
AS I SAID, YOU CAN TELL THE ELECTION IS NOT FAR OFF…
THE SECOND STORY WAS PUBLISHED IN THE WASHINGTON POST ON NOVEMBER 2ND, 2005. IT REPORTED THAT THE CENTRAL INTELLIGENCE AGENCY HAD BEEN HIDING AND INTERROGATING SOME OF ITS MOST IMPORTANT AL QAEDA CAPTIVES AT SECRET PRISONS IN EIGHT DIFFERENT COUNTRIES, INCLUDING SEVERAL IN EASTERN EUROPE AND AS FAR AWAY AS THAILAND.
THE ARTICLE SAID THAT THIS NETWORK OF SO-CALLED “BLACK” PRISON SITES WAS KNOWN TO ONLY A FEW TOP OFFICIALS IN THE U.S. AND HOST COUNTRIES, AND THAT THE PRISONERS WERE SUBJECTED TO WATERBOARDING AND OTHER INTERROGATION TECHNIQUES THAT AMOUNTED TO TORTURE. IT NOTED THAT SUCH DETENTION CENTERS WOULD BE ILLEGAL INSIDE THE UNITED STATES, SO THEY WERE LOCATED ABROAD.
ONCE AGAIN, THE ADMINISTRATION INTERCEDED IN AN EFFORT TO PERSUADE THE NEWSPAPER NOT TO PUBLISH. ONCE AGAIN, THE PRESIDENT PERSONALLY URGED THE EDITOR, IN THIS CASE, LEONARD DOWNIE OF THE POST, TO WITHOLD THE STORY IN THE INTERESTS OF NATIONAL SECURITY. ONCE AGAIN, THE PAPER HEARD THE ARGUMENTS…AND DECIDED TO PUBLISH. THE POST INCLUDED THIS PARAGRAPH IN THE ARTICLE:
“The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials. They argued that the disclosure might disrupt counter-terrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation.”
The Post had agreed to that after conversations with the National Director of Intelligence, John Negroponte, and the then-director of the CIA, Porter Goss, both of whom were opposed to publication of the article. But it quickly came out — within a day — that the unnamed countries were Poland and Rumania, which held the prisoners in FORMER Soviet-era compounds.
The President immediately denounced the publication as “shameful” and argued that the disclosure had jeopardized an important tool in the war on terror. THAT STORY ALSO WON A PULITZER PRIZE FOR ITS AUTHOR, DANA PRIEST.
Recently, of course, the President announced in a speech that the prisoners had been transferred to the facility at Guantanamo Bay, Cuba. It is not clear however, whether new prisoners have been detained abroad since then OR WHETHER THE SECRET PRISONS HAVE BEEN DISMANTLED.
SO, ONCE AGAIN, WHAT DO YOU THINK? HOW MANY BELIEVE THE POST WAS RIGHT TO PUBLISH? HOW MANY AGREE WITH THE PRESIDENT?
(show of hands: Again, two thirds agreed with the Post, one-third with the Administration))
THE THIRD STORY APPEARED IN THE NEW YORK TIMES ON JUNE 22 UNDER THE HEADLINE: “BANK DATA IS SIFTED BY THE U.S.IN SECRET TO BLOCK TERROR.”
THE TIMES WROTE ABOUT A SECRET BUSH ADMINISTRATION PROGRAM UNDER WHICH COUNTER-TERRORISM OFFICIALS GAINED ACCESS TO FINANCIAL RECORDS FROM A VAST INTERNATIONAL DATABASE AND EXAMINED BANKING TRANSACTIONS INVOLVING THOUSANDS OF AMERICANS AND OTHERS IN THE UNITED STATES.
THE RECORDS, OBTAINED FROM A BELGIUM-BASED INTERNATIONAL BANKING CONSORTIUM KNOWN AS SWIFT, INVOLVED MAINLY WIRE TRANSFERS OF MONEY IN AND OUT OF THE U.S. THE TIMES DESCRIBED THIS PROGRAM AND THE NSA SURVEILLANCE PROGRAM WE DISCUSSED EARLIER AS one of a number of , QUOTE, “ATTEMPTS TO BREAKDOWN THE LONGSTANDING LEGAL AND INSTITUTIONAL BARRIERS TO THE GOVERNMENT’S ACCESS TO PRIVATE INFORMATION ABOUT AMERICANS AND OTHERS INSIDE THE UNITED STATES.” LET ME READ THAT AGAIN….
ONCE AGAIN, THE ADMINISTRATION ATTEMPTED TO PERSUADE THE TIMES NOT TO PUBLISH. THIS TIME, EDITOR KELLER MET WITH TREASURY SECRETARY JOHN SNOW AND JOHN NEGROPONTE. LATER, WHEN THE STORY WAS PUBLISHED, KELLER ISSUED A STATEMENT THAT WAS PUBLISHED AS PART OF THE ARTICLE IN WHICH HE SAID:
”WE HAVE LISTENED CLOSELY TO THE ADMINISTRATION’S ARGUMENTS FOR WITHOLDING THIS INFORMATION AND GIVEN THEM THE MOST SERIOUS AND RESPECTFUL CONSIDERATION.” KELLER CONCLUDED, HOWEVER, THAT THE PAPER BELIEVED THAT THE DISCOSURE WAS A “MATTER OF PUBLIC INTERST.”
THIS ARTICLE SENT PRESIDENT BUSH AROUND THE BEND. IT CAME, INCIDENTALLY, AT A MOMENT WHEN HE HAD REACHED A LOW POINT IN THE PUBLIC OPINION POLLS. HERE IS WHAT HE HAD TO SAY PUBLICLY FOUR DAYS AFTER PUBLICATION:
“The disclosure of this program is disgraceful. We’re at war with a bunch of people who want to hurt the United States of America.” And for people to leak that program and for a newspaper to publish it, does great harm to the United States of America.”
THIS COMMENT, AND A CHORUS OF SIMILAR ACCUSATIONS BY VICE PRESIDENT CHENEY AND OTHER LEADING REPUBLICANS, PROMPTED THIS RESPONSE FROM DANA PRIEST OF THE WASHINGTON POST ON NBC’S MEET THE PRESS:
“07/02/06 “Meet the Press”
Priest SOT: “Every time there’s a national security story they don’t want
published, they say it will damage national security, but they, for one
thing, they’ve never given us any proof. /////The point is the tension
between the media and the government is long-standing. And that’s to be
expected. And in fact, all these-many of the people getting up to lambaste the media now are also people that we talk to with our stories.”
THREE DAYS LATER, BILL KELLER EXPLAINED HIS REASONING ON THE NEWSHOUR:
“Keller 7/5/06 on the NewsHour
KELLER: I mean, our job, as news organizations, is to tell people how well their elected representatives are doing in the war on terror. That doesn’t mean that we just tell them what they’re doing wrong. It means we also try to take the measure of what they’re doing that works.
So, you weigh what would be useful to citizens, voters, in appraising the
performance of their government, against whether or not the release of this
information would do any significant harm.
And I have been party to a number of decisions where I thought releasing the
information could put lives at risk, and we haven’t released that
information in those cases.
NONETHELESS, A NUMBER OF MEMBERS OF CONGRESS URGED THAT THE TIMES BE PROSECUTED UNDER THE ESPIONAGE ACT. NO SUCH PROSECUTION IS CURRENTLY UNDERWAY AS FAR AS I KNOW. WERE THESE CALLS FOR PROSECUTION POLITICAL POSTURING OR A SERIOUS CONCERN FOR NATIONAL SECURITY? I’LL LET YOU BE THE JUDGE.
SO, FOR THE THIRD AND LAST TIME, WHO WAS RIGHT? THE TIMES? THE ADMINISTRATION?
(SHOW OF HANDS: three-quarters of the audience endorsed The Times’ decision, one-quarter the Administration.)
MY POINT IN THIS EXERCISE IS TO DEMONSTRATE THAT SOMETIMES ETHICAL QUESTIONS COME DOWN TO JUDGEMENT CALLS. THEY ARE NOT ALL TRANSPARENTLY RIGHT OR WRONG. SOMETIMES EDITORS ARE ASKED TO BALANCE THE NATIONAL SECURITY AGAINST THE PUBLIC’S NEED TO KNOW WHAT THE GOVERNMENT IS DOING WITH THEIR MONEY AND IN THEIR NAME.
AND ON A PERSONAL NOTE, I HAVE KNOWN BOTH BILL KELLER AND LEONARD DOWNIE FOR 30 YEARS. THEY ARE SERIOUS PEOPLE WHO TAKE THEIR JOBS SERIOUSLY.
THE PRESS’S RIGHT AND OBLIGATION TO EXAMINE THE FUNCTIONS OF GOVERNMENT IS ENSHRINED IN THE FIRST AMENDMENT. TAKE A LOOK AT THE INSCRIPTION NEXT TIME YOU PASS THE JOURNALISM BUILDING AND DECIDE FOR YOURSELF HOW IT SHOULD BE INTERRPRETED IN THE MIDST OF THIS GLOBAL WAR ON TERROR.
THANK YOU.