News, National Security
& Democracy

By Alan Shapiro

To the Teacher:

The first student reading below provides background on the relationships among national security, democracy, and the constitution. The second reading describes reporting of two leaks, one by the Washington Post (on CIA secret prisons in Eastern Europe), the other by the New York Times (on eavesdropping on American citizens). The latter reading focuses on the behavior of journalists and newspaper executives in handling the leaks rather than on the very controversial issue of whether the policies in question were legal. Following Reading #2, we provide some quotes and information about that legality question for teachers who wish to pursue this subject.

Reading 1:
National Security vs. Democracy

The U.S. government classifies a great deal of information to keep it from being made public. The major reason, officials say, is to protect national security. A classified government document may have to do with new weapons systems, a bargaining position in relations with another country, or a thousand other things. The federal government classified a record 15.6 million new documents in fiscal year 2004. This is 81% over the year before 9/11.

Critics argue that this policy of secrecy interferes with the right of American citizens in a democratic country to know what its leaders are doing and why. They need access to information if they are to participate intelligently in the democratic process.

National security vs. democracy is a conflict between two crucial values. And this is why the closest scrutiny is necessary when American officials classify information to prevent American citizens from knowing what they know. We need to insure that government leaders are classifying information to protect the publicónot to protect themselves from controversy or embarrassment.

It is not enough for an official to say, "Trust me." The founders of the United States of America were aware of the perils of allowing any individual or group simply to be trusted with the great powers of government. So they designed a system with a division of powers between the state governments and the federal government and with a separation of powers among the three branchesóexecutive, legislative, and judicialóof the federal government. This division and separation created checks and balances between state and federal governments and within the federal government itself.

In The Federalist, James Madison wrote, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." (No. 47)

Madison also wrote, "But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the othersÖ.Ambition must be made to counteract ambitionÖ.It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itselfÖ.the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other...." (No. 51)

For writing and discussion

1. Consider closely and explain in your own words each of the elements in Madison's definition of tyranny:

a. The accumulation of all powers-legislative, executive, and judiciary
b. in the same handsówhether of one, a few, or many
c. in the same handsówhether hereditary, self-appointed, or elective

2. Consider closely and explain in your own words three elements in the U.S. government's "great security against a gradual concentration" of powers.

For discussion

1, Why, according to Madison is "government itself but the greatest of all reflections on human nature"?

2. What did Madison view as the two great difficulties in framing a government that is to be administered by men over men?

Reading 2:
Secret Prisons, Eavesdropping on Americans,
and National Security

Secret CIA Prisons

On November 2, 2005, the Washington Post reported that the CIA was running secret prisons in Eastern Europe where prisoners were tortured or sent to other countries for torture. For national security reasons, the article stated, it did not name the countries where these prisons were.

Soon afterward, another newspaper, the Financial Times, identified Poland and Rumania as the locations of the prisons. Polish and Rumanian officials denied that any secret CIA prisons were in their countries. Citing national security, the Bush administration criticized the Post for running its article and would not comment on the accuracy of either the Post or Financial Times revelations.

For discussion

1. Assume that the Post story about secret CIA prisons abroad was accurate. The Post editors obviously thought the public had a right to know about CIA actions performed in the name of American citizens. The Bush administration thought that if such actions took placeóand it wasn't saying they didóthey should be kept secret on the grounds of national security. What do you think about these conflicting views? Why?

2. The Post itself cited national security as its reason for not naming the countries where the CIA was running secret prisons and has been criticized for withholding this information from the public. What do you think of this Post decision? Why?

Eavesdropping on American Citizens

On December 16, 2005 the New York Times reported that soon after 9/11, President Bush "secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials." The Foreign Intelligence Surveillance Act (FISA) of 1978 requires such warrants.

The Times reported that the NSA is eavesdropping, without warrants, on perhaps thousands of telephone calls made and e-mail messages sent by Americans in the U.S. to people in other countries. "Nearly a dozen current and former officials who were granted anonymity because of the classified nature of the program, discussed it with reporters for the New York Times because of their concerns about the operation's legality and oversightÖ."

In 2004, "The White House asked the New York Times not to publish this article, arguing that it would 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."

Bill Keller, the executive editor of the New York Times, said that in asking the newspaper not to publish its story, officials "assured senior editors of the Times that a variety of legal checks had been imposed that satisfied everyone involved that the [NSA] program raised no legal questions." So the Times "agreed not to publish at that time" and continued its investigation. In the months that followed, Keller said, "we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program" and that "it became clear those questions loomed larger within the government than we had previously understood."

Byron Calame, the public editor or ombudsman at the New York Times, called its explanation for the one-year delay in reporting the eavesdropping story "woefully inadequateÖ.The mention of a one-year delay, almost in passing, cried out for a fuller explanationÖ.At the very least, the Times should have told readers in the article why it could not address specific issuesÖ.The most obvious and troublesome omission in the explanation was the failure to address whether the Times knew about the eavesdropping operation before the November 2, 2004, presidential election."

Other critics add that the New York Times was flat out wrong to delay publication of a story about what they see as a violation of the constitution (Fourth Amendment) and FISA. They pointed out that terrorists must already know that the U.S. government may be eavesdropping on their telephone and e-mail communicationsóand so revealing this information does not pose a threat to national security.

But President Bush said in a radio address: "This is a highly classified program that is crucial to our national securityÖ.Yesterday, the existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have. And the unauthorized disclosure of this effort damages our national security and puts our citizens at risk."

The editors of both the Washington Post and the New York Times refuse to comment on a Newsweek report that President Bush met with both of them at the White House on December 6, 2005, to prevent the secret prisons and eavesdropping articles from appearing.

The Columbia Journalism Review commented (www.cjrdaily.org, 12/27/05):

"Was this the only meeting? How often does Bush feel the need to intervene like this? And how much of a part in the Times' decision-making did this meeting or any other meetings play? And, for that matter, why did the Times decide now that the information about the wiretapping was any less sensitive or dangerous a story that a year ago when it was first discovered?

"We have no answers to any of these questions, yet they are important, questions that boil down to this: What kind of relationship do these papers have with the administration and how does it affect what does and does not get reported?....For our part, we have always believed the function of a journalist is to tell people what he knows, not to withhold what he knows, and we still believe it. Both the story of the Post and the president and the story of the Times and the president deserve an audience of more than an inner circle of a dozen or so people at the Times, at the Post and at the White House."

For discussion

1. Is the New York Times' story on NSA eavesdropping important? Why or why not?

2. In 2004, the Times appears to have accepted the assurances of officials that the eavesdropping program "raised no legal questions." Do you agree with this decision? Why or why not?

3. Should the New York Times, even after a year, have published a report on NSA monitoring, without warrants, of phone calls and e-mail messages made from inside the U.S.? In deciding your answer, consider the president's objection to releasing this information, the FISA, and the Fourth Amendment to the U.S. constitution.

4. Do you agree with Calame that the New York Times' explanation of its delay in publishing the eavesdropping story was "woefully inadequate"? Why or why not? Why might it be important to know whether the Times had the story before the 2004 presidential election?

5. Why does the Columbia Journalism Review think their questions are important? Do you think they are? Why or why not? Do you agree with its statement about "the function of a journalist"? Why or why not?

Additional Reading on the Legality of NSA Eavesdropping

Should you wish to pursue the legality of the NSA eavesdropping actions with the class, you may find the following quotes and information useful.

Bush Administration Rationales

"The Patriot Act was written with clear safeguards to ensure the law is applied fairly. The judicial branch has a strong oversight role. Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, a federal judge's permission to track his calls, or a federal judge's permission to search his property. Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the constitution of the U.S."
óPresident Bush, June 9, 2005

Responding to charges that the NSA eavesdropping program contradicts his comment of June 9, 2005, President Bush said on January 1: "I was talking about roving wiretaps, I believe, involved in the Patriot Act. This is different from the NSA program. The NSA program is a necessary program. I was elected to protect the American people from harm. And on September 11, 2001, our nation was attacked. And after that day, I vowed to use all the resources at my disposal, within the law, to protect the American people, which is what I have been doing and will continue to do."

The president said that when, after 9/11, Congress authorized him to use force, it also authorized him to suspend Foreign Intelligence Surveillance Act regulations. Congressional and other critics respond that they never understood that the force authorization also authorized eavesdropping on American citizens. The president maintains in addition that the powers granted to him in the constitution as commander-in-chief allow for his NSA actions. Again, the critics deny the constitution grants a president any such powers and argue that there is no precedent for them.

"There were many people, many lawyers, within the administration who advised the president that he had inherent authority as commander-in-chief under the constitution to engage in this kind of signals intelligence of our enemy. We also believe that the authority to use force which was passed by Congress in the days following the attack on September 11 constituted additional authorization for the president to engage in this kind of electronic surveillance."
-Attorney-General Alberto Gonzales, commenting in a CNN interview on the president's decision soon after 9/11 to authorize the NSA eavesdropping program.

On December 30 the Justice Department opened an investigation into the leak of the NSA eavesdropping story to the New York Times. The Senate Judiciary Committee is planning hearings on the NSA program.

Other Perspectives

The Congressional Research Service, a nonpartisan research arm of Congress, has analyzed the president's rationale for eavesdropping on American citizens without warrants. They found the legal rationale in bypassing Congress "does not seem to be as well-grounded" as the administration's lawyers maintain. Congress "does not appear to have authorized or acquiesced in such surveillance," the report said, adding that the administration's reading of some provisions of the federal wiretap law could render them "meaningless."

In 2004, Justice Sandra Day O'Connor, writing a decision for the Supreme Court on presidential powers in a time of war, declared, "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

During the birth of the U.S., John Adams commented that Americans were creating "A government of laws and not of men."

This essay was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.

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