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mark feldstein

Feldstein is an associate professor of media and public affairs at The George Washington University and author of Poisoning the Press: Richard Nixon, Jack Anderson and the Rise of Washington's Scandal Culture, which will be published by Farrar, Straus & Giroux in 2008. This is the edited transcript of an interview conducted on Jan. 8, 2007.

[Give me an example of a time in which the press published something damaging to national security.]

The whole notion of the press jeopardizing national security has been grossly exaggerated. There is virtually no instance of media coverage actually causing any harm to national security. One of the very few cases where the press might have caused harm to national security occurred during World War II, when the Chicago Tribune published information that suggested that the Americans had broken the codes of the Japanese during World War II.

FDR's administration weighed prosecuting the Chicago Tribune for that disclosure, but ultimately decided not to because it turned out the Japanese had not noticed the story in the Chicago Trib, and therefore to actually prosecute them would have risked more harm by alerting the Japanese to the leak than if they had just kept silent. So they kept silent.

So you're saying that there's a lot of talk about the media actually damaging national security, but in reality almost no examples.

That's exactly right. Governments never like their secrets exposed, whether they're Democratic or Republican governments. If you look at the history of journalism, administrations of both parties continually rail about the harm in national security from news media leaks. But if you actually examine the cases, there are essentially no instances of actual harm to national security that have occurred because of disclosures by the press. ...

Since the beginning of the republic, there has been this constant tension between liberty and order. Liberty and order are always pitted against each other in times of war. And in times of war, when liberty clashes with order, the impetus is always to err on the side of order because the threats seem so immediate, irreparable and infinite, and matter of life and death. ... Better to censor the press. Better to withhold this information. Err on the side of caution. ...

“The whole notion of the press jeopardizing national security has been grossly exaggerated. There is virtually no instance of media coverage actually causing any harm to national security.”

It's particularly troublesome now, on the war on terror, because this is a war seemingly without end. ... This is a war that could go for decades, for generations. How do we know when it's over? We don't. So the idea of suspending our liberties and holding them at bay -- whether it's about the press or any other institution -- is really troublesome, because there's seemingly no end in sight. ...

In the 1950s and '60s ... there wasn't this clash between the press and the government, particularly over national security. The New York Times didn't publish the Bay of Pigs story because the president called up and said, "Don't publish it."

That's absolutely right. The media in America has largely been docile and deferential throughout history. You've had some occasional exceptions. The muckrakers a century ago were more questioning of government, although even then it was more state and local government than federal. And even when it was federal, it was more about domestic issues, not national security issues.

But in the aftermath of World War II, you had a news media that was largely docile, that was respectful of authority, that did what the government told it to do, by and large. And when the government requested that it withhold information, most journalists, most news editors were only too happy to salute. When they were asked to jump, they asked, "How high?"

So President Kennedy was able to get The New York Times to withhold publication of the Bay of Pigs on the grounds that that would protect the national security. Later, of course, the Bay of Pigs turned out to be this huge fiasco, and JFK himself said he wished the Times had published. In fact, not publishing it endangered national security far more than publishing it did, and this characterized this whole period of news media deference to government, to authority, throughout the middle-20th century.

Would the press cooperate, for instance, with law enforcement during this period?

Yeah. The press repeatedly cooperated with law enforcement during this time. In many cases, the news media was almost an extension of law enforcement. You had journalists, including some who are prominent today, actively cooperating with the [police], typing up confessions of suspects on behalf of police. ...

Reporters used to type up police reports?

Bob Schieffer, the CBS anchorman, wrote in his memoirs how he was so tight with the cops he would dress like the cops, in part to sort of impersonate them so he'd be thought of as a cop and he could get into the scenes. But he'd be present when suspects were interrogated -- he wrote this in his memoirs -- in part because the cops wanted a witness that they hadn't beaten the suspects; in part because he could type faster than the police could. So he'd type up the confessions and then testify in court as to what the confession said on behalf of the police. That's how in bed the mainstream media was throughout most of the 20th century.

With the government, with law enforcement.

With the government, with law enforcement, and especially with the local cops.

And when it came to national security side, the intelligence agencies, the journalism organizations provided cover?

Absolutely. There was this real notion that "We are patriotic Americans just like anybody else; we want to help the establishment," and they would curry favor. In the research for my book, I came across these transcripts that William Colby, the CIA director, made when he was trying to convince reporters not to run the story on the Glomar Explorer.

That was Howard Hughes' --

Howard Hughes' submarine.

Undersea vessel.

Right, right. The CIA was attempting to pull up a Soviet nuclear sub, and they didn't want the Soviets to find out about it. ... In any case, Colby ... had secretly on the line a secretary transcribing the conversations he had with reporters.

They [the transcripts] are absolutely astounding, watching the leading editors of The New York Times and The Washington Post and other newspapers curry favor with the CIA director, volunteering to withhold publication of this information when it wasn't even asked.

They were just absolutely obsequious and supine in their willingness to do whatever it was the CIA asked of them without any critical facilities whatsoever. They were trying to kill Sy Hersh's story about it, and The New York Times editors and the Los Angeles Times editors were only too happy to accommodate the CIA. ...

Finally, [investigative reporter and columnist] Jack Anderson, whom I'm writing about, which is why I know about it, breaks it first. ... Everybody publishes it. And guess what? Is there any harm to national security as a result? No. Embarrassing for the government, yes. Harm to national security, no. ...

So then where does this notion come from that the press is not an arm of law enforcement; that it isn't trying to help the government keep order?

The notion of a watchdog press is really a relatively recent concept. It really grew out of the turmoil of the 1960s. The lies of the Vietnam War and then the Watergate scandal for the first time really created in this century an actively adversarial press. ...

What was Nixon's attitude to the press?

Richard Nixon despised the press. It's ironic, because his very rise as a politician in the first place came from very favorable press coverage during the [alleged Soviet spy] Alger Hiss case. The Los Angeles Times was in his corner, and he had a whole coterie of right-wing journalists, anti-Communist journalists, who built him up and helped launch him as a national figure.

But Richard Nixon had a very thin skin. He was really temperamentally unsuited to the kind of hurly-burly of American politics and the minor criticism. He got really stung, and he brooded about it. He plotted revenge for it. He had these various scandals -- the slush fund scandal in 1952 that led to the Checkers speech; 1960, more scandals about money from Howard Hughes.

Particularly in the 1960 campaign, he correctly saw the news media as siding with John Kennedy. JFK was a charismatic, much more likable figure than the kind of introverted and shy Nixon. And when Nixon lost that election by a razor-thin margin, he blamed the news media for that defeat. By the time he became president, he vowed he would get revenge on the news media for all of the slights and arrows that had [been] shot his way over the past 20 years in politics.

And what did he do?

He did everything. He wiretapped reporters without court order. He sicced the CIA, illegally, to spy on journalists. He composed enemies lists that targeted reporters. Reporters were audited by the IRS for income tax audits. He leaked information to his favorites, and he even, in one celebrated case, his aides came up with a plot to assassinate a particularly meddlesome journalist. It wasn't carried out, but this gives you some sense of Nixon's antagonism and how far he was willing to go to attack the press.

He, in the Pentagon Papers case, for the first time ever, tried to engage in prior-restraint censorship of the news media. It was his Justice Department, overruling career prosecutors, who took to the Supreme Court the Branzburg [v. Hayes] case, which limited reporters' rights to protect their sources.

He unleashed Spiro Agnew, his vice president, to issue a scathing public attack on the news media. All presidents had had problems with the press; no president likes to be criticized. But this was the first concerted effort to target the media as an institution across the board, not just individual reporters, and to undermine their credibility with the public. To attack them as an institution and, in some cases, to arrest them and throw them in jail and to undermine the whole notion of journalism as a check and a balance on wrongdoing in the government.

Tell me about the use of subpoenas [relating to the press] during the Nixon administration. Was it an epidemic or a normal number?

I don't know what the numbers are on that. I know there actually were a lot of subpoenas that came out, surprisingly even before Nixon took office. After the '68 [Democratic] Convention in Chicago, all the violence, they wanted outtakes.

But the raft of new subpoenas, whether it started to occur at the end of the Johnson administration or was in the first days of the Nixon administration, the raft of subpoenas was so great that John Mitchell, the attorney general under Nixon, actually drew up new guidelines for how the Justice Department should process all of these subpoenas that were coming forward and under what circumstances they should intervene, to try to issue subpoenas to journalists and to not do that.

This was what led to the Justice Department guidelines, which are actually pretty good today. And had they been followed in subsequent cases, like the Plame case, maybe, you know, they [the cases in question] wouldn't have occurred.

You mentioned Branzburg, and you mentioned that that was an unusual circumstance. What was happening in Branzburg?

The Branzburg case at the time was considered by press advocates to be a really negative case for the news media, because for the first time you had the Supreme Court, on record, saying that journalists did not have the right necessarily to protect their sources; that the courts were entitled to what they called "every man's evidence"; that reporters were not in any special, privileged class and therefore could be compelled to reveal confidential sources.

The news media was aghast at the time. This looked like one more effort by the Nixon administration to curtail the press.

But how did it happen?

Three cases got consolidated. There were three separate cases, but all had a key issue in common, and that was that journalists were refusing to go before grand juries and reveal confidential sources. Law enforcement wanted to know, who were their sources who were giving them information, ... and the journalists refused [to talk]. They felt that if they revealed that information, they would not only betray their sources, but they would hurt other journalists' ability to get this kind of information; that they had given their word and they were not going to violate that.

These three separate cases -- two involving the Black Panthers, one involving drug dealers -- made their way up through the court system and eventually were consolidated and made it to the Supreme Court.

The Supreme Court issued a decision, voted 5-4, to say that at least in some cases, journalists did in fact have to give up their sources, did have to testify; that they were not immune automatically from testifying just because they were journalists.

At the time this was thought to be a horrific case by the news media, because journalists could be forced to give up their sources. ...

But that changed?

That changed in the strange way that constitutional law has of evolving over time. The vote was 5-4. ... Justice [Lewis] Powell had a concurring opinion. It was the crucial fifth vote that got the majority. But it was a much weaker decision on behalf of the government than the other four. He put in there all kinds of qualifications about how the decision should be limited in its scope and had to be decided on a case-by-case basis that future courts, in interpreting the case, used, in essence, to undercut the 5-4 majority.

Instead, what happened was the 5-4 went this way, kind of shifted, ... as lower courts chose to interpret the justice's decision as allowing reporters to protect their sources, at least in some circumstances.

So what evolved was an uneasy truce between the government and the press, where for the past generation the government could have gone after reporters' sources, but did not go after reporters' sources. That only changed under the Bush administration.

My understanding is that the reporters lost in the Branzburg case, but the government never then asked them to testify or wanted their notes?

Well, that's one of the great ironies of this case is this pivotal case, which reporters lost, thought was a disaster, were forced to have to testify in theory, never in fact actually happened. ...

... [Did that] result from a change in the political and social atmosphere that was going on?

Yes. I'm not certain of the actual details in these three particular cases as to what happened, but the fact of the matter is Branzburg occurred in 1972; Nixon was still riding high. In another couple of years, of course, Nixon would have to resign in disgrace, and the media, rightly or wrongly, would be credited with his demise.

What you had was a sea change in historical and social terms in the U.S. in terms of the news media. You had a journalism that was now suddenly muscular, that had seen its role during Watergate expand and saw that they could help drive from office a corrupt president. And you had the public giving the press credit for helping drive him from office. ...

People often think that judges are born in robes, and they issue their decisions, as if like Moses, coming down from the Ten Commandments. But they don't. Judges operate in a historical and a social context, and judges all across the country were very much affected by Watergate, by what happened, by the recognition that the news media play a critical role as a watchdog in our society. The fact that the Nixon administration had to leave in disgrace undermined as well this decision, this victory it had won in the courts.

I think it's no accident that the lower courts undercut this decision and granted the news media more rights in the generation after Watergate, in part because they saw how important the news media could be and in part because they recognized that curtailing rights of the press was dangerous; they could be abused by government and that the society needed a watchdog press. ...

Why did the Nixon administration want to stop the Pentagon Papers? What was at stake?

Well, that's an interesting question, because the Pentagon Papers were largely historical documents not about Nixon's administration, but about previous Democratic administrations -- the Johnson and Kennedy administrations -- and how they got into Vietnam.

Initially Nixon was not terribly perturbed by it. He thought, this hurts the Democrats; it doesn't hurt us. But Henry Kissinger, Nixon's national security adviser, convinced Nixon that the Pentagon Papers threatened a dangerous precedent for the Nixon White House; that Nixon's secrets, just as much as Johnson's or Kennedy's, could be revealed if this were allowed to go unchallenged. Kissinger always had a strong effect on Nixon. He reinforced Nixon's worst paranoia. Kissinger got Nixon so revved up that Nixon decided to go to court and stick his own neck out on the line to suppress these papers.

The press won in the Pentagon Papers case, in the sense of no prior restraint; they could publish. The courts said you could still prosecute them for espionage.

That's exactly right. The Pentagon Papers [case] was heralded as an enormous journalistic victory and political victory for the news media. And it was. But as a legal matter, it opened the door for future prior restraint. What the Court said was, in this case, national security wasn't jeopardized enough to censor the newspapers, but in other cases, in the future, we may well find that there is a good reason to censor the press. So legally this was much less of a victory for the press than it was politically and journalistically. ...

By leaving the door open in this Pentagon Papers case, it opened the door for the Bush administration to come after the press for espionage or for other purposes. The Pentagon Papers proved not to be this unheralded victory for the press, but a way in for an administration that wanted to go after the press.

Well, tell me about that. You know, us old dogs who were around back then at least superficially have the reaction that with the Valerie Plame affair, with the results of that, with the other subpoenas, with reporters going to jail and the sort of antagonism from the Bush administration, have things gone full circle? What's going on here?

Things have gone at least 300, if not 360 degrees in a circle. What you have now is an administration that is waging a war on the news media in a way that no administration has since the dark days of Richard Nixon. You have an administration that is going after the press in a fashion we have not seen in a generation. Threatening to prosecute reporters for espionage? I mean, espionage! That's for spies. That's for saboteurs. That's not for reporters. ...

You've had a whole host of other ways that this administration has gone after the press -- as minor as not allowing photographers to Dover Air Force Base to take pictures of the coffins, of caskets returning from the Iraq war. That's not about national security. That's about political security. That's about not wanting to fuel anti-war opposition in this country. So they ban the press even though there's no national security threat. They have done all kinds of things to go after the press in a way we haven't seen since Nixon's day. ...

What's your overall take on what happened around Valerie Plame?

I think the Plame case is an example of prosecutorial overreach, and it's as much true for the left as it is for the right. Without getting into the politics of it, I don't think that the leak involved should have gone to the point of putting reporters in jail, threatening to put reporters in jail, and actually jailing one of them for what was really a relatively minor leak of the kind that, frankly, occurs all the time in Washington, D.C.

What are we to make of [former Ambassador] Joe Wilson and his complaint that the government of the United States retaliated against him by revealing his wife's identity?

Well, there's no question that some elements in the White House did try to do that, but if you actually look at the genesis of that leak, it began as most leaks in Washington do. It was sort of idle gossip between a policymaker and a journalist -- in this case, [then-Deputy Secretary of State] Richard Armitage and Bob Woodward.

If you're going to start criminalizing those kind of leaks, which is what the nation's capital is based on, you're going to be throwing an awful lot of reporters in jail, and maybe an awful lot of government officials. Leaks are as old as the republic itself. George Washington was upset because some of his classified treaties and secret documents were leaked to the papers -- and P.S., Thomas Jefferson, his secretary of state, is the number one suspect. James K. Polk was all upset about secret treaties and Cabinet minutes, meetings [that] were leaked to the press -- and it was, P.S., his secretary of state, James Buchanan, who was widely regarded as the number one suspect.

Leaks are the way the world works. Leaks are the way Washington runs, and there's a reason for that. It's a kind of unofficial back channel for putting out trial balloons, for trying to influence policy behind the scenes, and then there's nothing terribly nefarious about it. It's a healthy mechanism in a democracy, and if you start trying to clamp down on that, if you start throwing reporters in jail for that, you're going to restrict the debate and really have bad consequences for democracy. That's my opinion.

Do you believe, though, from what you know about the case, as Joe Wilson says, that the White House was out to get him?

Yeah. And guess what, Joe Wilson? Move over. The White House is out to get a lot of people. And every White House is, every administration. It's part of the tug-of-war of policy that you try to advance your interests and undermine your opponents'. ...

I think merely whispering negative information about Joe Wilson's wife the way this administration did does not constitute some enormous change in the way things work in Washington, and does not constitute the kind of criminal behavior that really ought to result in people going to jail.

So did the drumbeat of article[s], political statements and so forth that resulted in the appointment of a special prosecutor [Patrick Fitzgerald] by some in the press who don't like the Bush administration, in a sense, blow up in their face?

Yes, I think it did. Maybe it was poetic justice. But you can't have one standard for your side and another standard for their side, one requirement that reporters out their sources when they're on the right, but not when they're on the left. And if you're going to protect reporters when they interview Black Panthers and drug dealers, you also need to protect them when they interview administration officials, even if you find them noxious, too. ...

Pat Fitzgerald did something in this that had never been done before in a leak case. He issued waiver forms to the people in the White House. That seemed to be a new standard, a new way of doing things, because we've heard the same thing is being done, for instance, in the NSA [National Security Agency] eavesdropping [case]. So is this another unintended consequence?

... Waivers may pretend to be voluntary, but they're really not. When a government official is presented with a waiver and [told], "Here, sign this if you like," they recognize if they don't sign it, it's tantamount to an admission that they themselves have been the source. So you are requiring people, in essence, to sign away their First Amendment rights to free speech. ...

And that may be part of a legacy of the special prosecutor, Patrick Fitzgerald.

Sadly, I think that's going to be the greatest legacy of this prosecutor, because the actual case that created all of this was really a tempest in a teapot. It was much ado about nothing. It has no lasting ramifications. But implementing nonvoluntary waivers on a permanent basis, that's a really pernicious legacy that may last for decades.

And the press itself, in its handling of the Valerie Plame story, there seemed to be this typical, almost pack mentality once the story broke, that the White House looked like they had leaked classified information. ... Did the press really get lost in the middle of this?

Yeah. I think the press was rather misguided in the way they covered this. You know, the press sometimes are like a bunch of sparrows, and when one flies off the telephone line, then all the rest follow in a pack. I think the press saw this as potentially criminal behavior by the White House and glommed onto it in kind of gotcha-journalism fashion without really thinking through what the long-term ramifications would be for themselves, but, more importantly, for the country.

This isn't just about the press's rights; it's about the public's rights. The press's rights matter, because they are the conduit for getting information to the public. And when the press is curtailed, when the press is eroded, when the press is censored, it's the public that's hurt. It's the public that doesn't get the information it needs in a democracy to make intelligent voting decisions. That's why it matters -- not because it matters whether or not some newspaper gets a scoop, but because it affects every one of us as American citizens.

Part of the problem is that the only person, in the end, who stood up among the press and was willing not to testify, not to accept a voluntary waiver, was [New York Times reporter] Judy Miller.

True. But then she capitulated. So that's what makes her an uneven hero. ...

She was compromised by two things, really. One was her credulous reporting about nonexistent weapons of mass destruction, where she served largely as a megaphone for the administration's party line -- and that was unfortunate, although she was not unique in that.

But the second problem that made Judy Miller an unsympathetic heroine, if you will, was the fact that she was not protecting a noble, idealistic whistleblower -- a Daniel Ellsberg who's leaking the Pentagon Papers, or somebody in the bowels of a corporation who's revealing tobacco [is] poisoning the public. She was instead hiding the disinformation campaign by the Bush administration to manipulate public opinion. She was not sympathetic, and her source was not sympathetic. Nonetheless, her right to protect that source is just as important [as] if they had been on God's side, and that's part of the difficulty in this case. ...

When we go on the air with this, it will probably be the third or fourth week of the Libby trial. We expect that a line of reporters are going to walk into this trial. We know the witness list includes everybody from Judy Miller potentially to Bob Woodward and so on.

[NBC's] Tim Russert.

Tim Russert. What does this mean?

No journalist ever likes to have to testify in a trial. Journalists like to stay out of the courtroom. They want to report the news; they don't want to be perceived as having sides in a story. They want people to talk to them as neutral observers who know they can be trusted not to reveal confidences, who know that they can be trusted not to be on one side or the other. So the spectacle of having a parade of prominent journalists marching through the courtroom is something no journalist wants and cannot help a free press.

Has it ever happened before?

It's unprecedented, as far as I know. I cannot think of any time in American history, since the founding of the republic, when journalists have been marched through the courtroom as witnesses in a case, ever. …

So what does it say about the Washington press corps? I mean, with the exception of Judy and to a certain extent, for a while, [Time magazine reporter] Matt Cooper, none of them really resisted.

No. The Washington press corps was protecting their official sources. The Washington press corps was doing what it's always done, and that is to be supine before government authority. For all the changes that have taken place since the Nixon administration, since earlier in the century, the Washington press corps still largely serves as a megaphone, as a stenographer for those in power, and the fact that it rolled over so quickly in this case is just one more example.

Did the results of this supine media and Judy Miller in a sense becoming an imperfect heroine set us up for what's happening today: the BALCO [Bay Area Laboratory Co-Operative baseball steroids] case in California, where there are reporters facing jail; a young video blogger [Josh Wolf] who's in jail; and now the threat of possible espionage prosecutions?

Yeah, I think it did. I think the Bush administration saw that a top reporter for the number one newspaper in the country could go to jail for weeks and nothing would happen, in essence. Yes, there were complaints, and yes, there was an outcry, but they were able to get away with it. I think that emboldened them to go after the press in other cases, as they have, threaten other reporters with jail, as they have, because they saw this as a green light. They saw that they could get away with it, and now it's "Katy, bar the door."

So are things worse than they were during the Nixon administration?

Not yet, but they're heading in that direction, and where it's going to end, I don't know. If they actually start prosecuting reporters for espionage, that would be worse than under the Nixon administration. If they actually start throwing more reporters in jail for refusing to identify their sources, that would be worse than what Richard Nixon did. And that's saying something.

So how important in all of this has the shift been? Because you talked about public opinion after enduring Watergate being critically important and public opinion today. How important is the shift in public opinion?

Well, that's an interesting question. One of the things about Watergate is reporters were the heroes then. They were seen as having helped bring down a crooked president. Reporters are not the heroes today.

If you look at our folk culture, our movies, entertainment, the way they're portrayed, journalists today are seen as this gaggle of vultures who go after and attack for sensationalism, for ratings, for entertainment purposes, not through idealism. They're not seen as watchdogs anymore; they're seen as attack dogs.

That may be true, it may be false; we can debate that. But there is much less public sympathy to the press now, to the news media now, than there used to be. And the Bush administration in particular doesn't view journalism as representatives of the public. They view them as another special interest group, out for their own reasons, not on behalf of the public. That's one of the reasons I emphasized earlier, that it matters not because reporters matter, not because journalists matter; it matters because the journalists are the conduits to the public. ...

Is part of all of this that the rise of the conservative media, the elimination of the Fairness Doctrine and other restraints on political opinion and bias on the airwaves has changed public opinion?

Yes, and I'm writing about this in my book. In many ways, it's Nixon's revenge. He didn't get what he wanted in his lifetime. In fact, he got forced out of office. But his Supreme Court appointees, his Justice Department, his desire to create a right-wing alternative media institution in this country, media establishment -- all of those things have come true or come to fruition in the generation since. And the contempt that the public now has for the news media reflects what Nixon felt.

So in many ways, Nixon's revenge has been to will to us a crackdown on the press of the kind he was never able to carry out in his abbreviated presidency.

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posted feb. 13, 2007

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