But past instances of journalistic revelation of secret government programs also involved sensitive or classified information—the Pentagon Papers, for instance, or the story in the 1970s about how the federal government was engaged in domestic spying, which led to the Church committee hearings in 1975 and the passage of the Foreign Intelligence Surveillance Act requiring court warrants for domestic surveillance. So what’s different today? Why is fear of discussing press accounts of classified programs, even among powerful members of Congress, seemingly greater now than in past eras? “What’s different now is that they are still partly worried about looking soft on Al Qaeda,” Priest says. “Al Qaeda got put in such a bogeyman box. And everybody is afraid they could be accused of being soft on terrorism. That is the death knell for people.”
This fear factor has been central to the Bush administration’s post-9/11 strategy on any number of fronts, but arguably none more so than in its efforts at secrecy. All administrations want to keep some information secret, Seymour Hersh, the veteran investigative reporter, tells me. But the Bush-Cheney White House is “more secretive. They are better, smarter; they do much more stuff and hide behind jingoism,” he says. “There’s been an incredible diminution of Congress. The truth of the matter is it is different now. It is different under these guys.” Bureaucrats who in the past would have resisted leak-investigation demands from the administration, Hersh says, are today “more compliant.” Hersh says that back in the 1970s, when he broke the story about the government spying on Americans, a top Justice Department official (Gerald Ford’s attorney general Edward Levi) told those in the White House (including Ford’s chief of staff Dick Cheney) who were seeking to pursue a leak investigation against Hersh, “Are you kidding? Get the hell out of here.” Not any more. And that sense of fear and intimidation has seeped into the DNA of media institutions as well, Hersh says. In the climate that prevailed after the terrorist attacks of September 11, 2001, “newspapers decided they were on the team. And that set off a chain, an attitude, that chilled the First Amendment right away.” It contributed, he suggests, as well to the media’s insufficiently skeptical reporting on the Bush administration’s prewar claims concerning the threat posed by Saddam Hussein.
The chill is still evident. One top national-security reporter, whose reporting led to an internal-leak investigation at a federal agency and therefore requested anonymity, says such investigations can remain open, inhibiting sources and follow-up reporting even if the investigations don’t lead to criminal charges. “You have to be aware of your sources,” the reporter says. “What are you going to do? You have to lay off. They leave them open for a purpose.”
The reporter says federal officials had also been effective at inhibiting follow-up reporting by other journalists on controversial subjects by implying, sometimes falsely, that some of the information reported by their colleagues was wrong. The reporter cited as an example the allegations in Risen’s book regarding the CIA and Iran. “The agency was very successful in convincing other reporters that Risen’s report was wrong,” the reporter says.
What remains unclear is whether the new legal precedents and interpretations established by the Bush Justice Department—which contend that the press has no fundamental privilege to protect the identities of confidential sources in fulfilling its mission to ensure the public’s right to know—will swing back now that the Bush administration’s reign is over. Though there are reasons for optimism on these issues under the Obama administration—from its stated intent to close Guantánamo to signals that it is considering establishing a commission to examine government conduct in the “war on terror”—it is unclear how much can be easily undone; or how much of a priority that will be for the administration.
Given the massive, urgent problems confronting the new administration (the economy, Iraq, Afghanistan, etc.), it could be forgiven for preferring to look forward rather than back. Beyond that, it also isn’t clear that congressional Democrats have an appetite for a thorough excavation of the Bush administration policies.
One congressional staffer, who works on national-security issues and who asked to speak on background, suggests that one reason Congress has not been more aggressive in following up on the domestic wiretapping story, for instance, is that there was a sense, even among many Democrats in Congress who had been briefed on the program, that the administration was pursuing these programs not for “nefarious reasons, but to catch bad guys”—that it was not using the program to spy on domestic political enemies, for instance, as had occurred in the 1970s.