Politics & Policy

Is There a Right to Know?

The question at the heart of the WikiLeaks scandal.

Why redact anything? That is the question that springs to mind in reading the self-justification offered by the New York Times for lending its megaphone to Wikileaks.

The paper is now publishing breathless reports, accompanied by verbatim excerpts, drawn from about a quarter-million sensitive U.S. government documents. This dump is much like the tranche of intelligence files leaked in October to the Times and other reliable media — “reliable” in the sense that Wikileaks’ anti-American founder, Julian Assange, was confident these outlets would publish information whose revelation embarrasses the United States and endangers those who cooperate with our government.

#ad#Assange’s leaks are intended to be thematic. The first focused on American combat operations in Iraq. The new burst targets American diplomacy and is thus more wide-ranging. But each instance elucidates that our government, regardless of who is steering it, must operate in a dangerous world where, particularly in Islamic countries, there are bastions of virulent anti-Americanism. Our friends — be they regimes, spies, well-wishers, or allies of convenience — cooperate with U.S. officials at great risk to themselves.

For that reason, the Obama administration implored the Times not to publish the materials — since, despite the fact that the entire cache of documents is available online, having the paper of record provide a reading guide to them greatly extends the damage done by their disclosure. The Gray Lady has largely rebuffed the president, except for an accommodation here and there. The paper explains its rationale this way: “As daunting as it is to publish such material over official objections, it would be presumptuous to conclude that Americans have no right to know what is being done in their name.”

Yet, it turns out the Times is plenty presumptuous. Its mawkish invocation of the public “right to know” comes only after the editors pat themselves on the back for what they’d have you see as their admirable restraint in withholding “information that would endanger confidential informants or compromise national security.” Of course, the administration’s precise point in pleading for nondisclosure is to protect U.S. informants and security — and it knows far better than the Times could what revelations are likely to trigger threats.

The point, though, is that despite its self-serving blather about your supposed right to know everything that government does in your name, the Times isn’t opposed to suppressing information. It is opposed to government officials having the power to decide what gets suppressed. The Times wants that power for itself.

Should a newspaper, or any media outlet, have that power? That depends on whether you think there really is a public right to know. The Times’s claim of such a right is disingenuous, but the concept is a serious one. Our government, after all, is supposed to be our servant, not our master. The government was created by the American people, not the other way around. The federal government was, moreover, quite intentionally designed with severe limitations, not least the First Amendment’s command that Congress “make no law . . . abridging the freedom of speech, or of the press[.]”

So how could it be that government may tell people what they are at liberty to speak about, or tell a newspaper what it may publish? The answer to this question is political, not legal. Because we are conditioned to think of politics as dirty and every problem as a legal issue, this is more difficult for us than it ought to be. But it is simply a fact that the legal niceties here are very unsatisfying.

#page#From its inception, the First Amendment has never been understood to mean what it says — just ask the Times, a notorious champion of speech-stifling campaign finance “reform” as well as “hate speech” restrictions. Where speech is concerned, civil libertarians and devotees of the “living Constitution” see the First Amendment as an “aspiration, to be given meaning over time,” as the University of Chicago’s Geoffrey Stone has put it.

There is surely something to this. Yes, the conceit that we all have a right to our opinion is written into the American DNA, and the notion that we are also entitled to our own facts is a staple of modern political discourse. Nevertheless, the reality is that Congress has enacted numerous laws abridging speech and publication since the Constitution’s adoption. Despite the First Amendment, many categories of speech have always been thought subject to regulation. Furthermore, the same Constitution has always made aiding and abetting enemies of the United States — such as by the passing them information in wartime — punishable as treason.

#ad#Free speech, like every other right, does not exist in a vacuum. It coexists with, and must make necessary accommodations to, other rights and privileges. These include our national security, without which the protection of speech and the press are not worth the parchment on which they are guaranteed. Accommodation is the business of politics, in the best sense of the term — the sense that honors individual liberty but imposes limitations essential to the common good, subject to change by the American people based on their sense of the common good, the public interest.

Thus, to the extent there is a public “right to know,” there must also be limitations on that right, fixed in accordance with the kind of country the public wants the United States to be. If we are serious about preserving our nation against enemies who would destroy us, we must be able to punish the communication of sensitive information to those enemies. If we want to win wars, we must punish those who assist our enemies. And if we want to be a dominant player on the world stage, we must punish those who make it perilous or impractical for important international actors to cooperate with our government.

It sounds simple, but it’s not. The trade-offs can be excruciating. Of course we want to preserve our nation, but those who would like to destroy us may not always be a realistic threat. Of course we want to win wars, but our war aims are not always so clear — many Americans who want to defeat al-Qaeda are indifferent or opposed to “Islamic outreach” and nation-building in Islamic countries, policies the government has conflated with war-fighting. As for dominance on the world stage, Americans right and left are increasingly skeptical: desirous of security from foreign threats in an increasingly dangerous world, but mindful of George Washington’s well-founded caution against too much foreign entanglement.

Wherever there is an obvious public interest, it is a fact of life that government officials will be apt to exploit it as a pretext for suppressing information that ought to be part of the debate over what exactly is in the public interest. Here’s the problem: The New York Times is just as apt to use that needed debate as a pretext for publishing information whose disclosure undermines the obvious public interest.

In the scheme of things, though neither is desirable, harming the public interest is worse than warping the debate. Furthermore, for all the venality of government — for all the officials who want to suppress information because its disclosure will be embarrassing, rather than harmful — government is at least accountable. Prosecutions against those who compromise national secrets are open to public scrutiny. Congress can convene hearings to demand answers from executive agencies that withhold information and to expose scandals. Both the president and Congress answer to the voters, who can remove them if they their abuse power or abide its abuse.

To whom does the New York Times answer?

Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

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