DOJ Subpoenas New York Times Reporters Over Air Force One Security Story
Subpoenas at the Door: When National Security Becomes Reputational Security
A government that sends agents to reporters’ homes in the name of secrecy forgets that, in a free country, the people are the ultimate sovereign—and sovereigns do not like to be kept in the dark.
Let us begin with the knock on the door. Federal agents, we are told, delivered subpoenas at the homes of reporters who had written about security concerns involving a new, foreign‑gifted Air Force One. The Justice Department insists that “reporters are not the targets,” only those who leak classified information; yet the reporters are ordered before a grand jury, with no clear indication what is expected of them. The administration proclaims national security; the newspaper’s lawyer calls it an attempt to prevent the public from knowing what is happening in their country. When power arrives unannounced at a citizen’s threshold, the question is not only what it seeks, but what spectacle it intends.
In The Wealth of Nations I argued that the sovereign has three great duties: to protect from foreign enemies, to administer justice between citizens, and to erect certain public works. To guard genuine military secrets is plainly part of the first duty. The Justice Department therefore speaks a plausible language when it says it cannot “ignore the law” or tolerate officials who treat national secrets as gossip. If the new presidential aircraft be truly vulnerable to foreign hostility, one may sympathize with some anxiety. The safety of rulers, however ornamental their equipage, is not a trivial concern.
Yet there is another duty, less splendid but more fundamental: to treat the people not as children to be hushed, but as adults to be informed. Here the facts are troubling. Before publication, a senior security official asked the newspaper not to run its story, invoking national security but providing no explanation. After publication, subpoenas followed, described by press advocates as a break from longstanding practice in which reporters are questioned only as a last resort. The very manner of execution—agents at private homes—has the air less of reluctant necessity than of instructive terror. A wise magistrate enforces the law; a vain one exhibits it.
When I wrote of the impartial spectator in The Theory of Moral Sentiments, I had in mind a judge within the breast who surveys our conduct with a calm, disinterested eye. Let us submit this policy to his tribunal. He sees a government long engaged in a public quarrel with the press, now wielding criminal process against those who published concerns about the safety and propriety of a foreign donation. He hears officials protest that they “value and appreciate” the press, even as they tighten the noose of compulsion. I suspect he would distinguish between protecting the realm and protecting reputations, and would regard the latter, masquerading as the former, with particular contempt.
Economically considered, one must ask who pays. The visible benefit of aggressive secrecy is enjoyed by office‑holders: fewer embarrassing revelations, fewer awkward questions about gifts from abroad and the true cost of luxurious planes. The costs are diffused and silent. Journalists, observing colleagues dragged before grand juries, hesitate before publishing the next awkward truth. Sources, seeing subpoenas flutter, think twice before warning the public of real dangers. The public itself, whose wealth consists in the annual produce of its land and labour and in the knowledge by which that labour is directed, proceeds in greater ignorance. The true tax is levied upon information.
Some may answer that order requires discipline: that if leaks of classified material are not met with stern measures, government will crumble into chaos. But any scheme that depends upon journalists voluntarily blinding themselves, or upon officials never disclosing misconduct cloaked as secrecy, rests upon a virtue beyond the ordinary pitch of humanity. Men act, as I long ago observed, upon the motives actually before them. If every revelation of abuse is treated as treachery, the conscientious official is driven to silence, and the knave to more careful concealment. The law then protects not the security of the nation, but the security of its worst practices.
There is, finally, the danger of the man of system in matters of information as in those of trade. He imagines that, by tightening rules and brandishing subpoenas, he can arrange journalists, leakers, and readers like pieces upon a chess‑board, each moving only as he commands. But in the great chess‑board of human society, every piece has a principle of motion of its own. Reporters will seek news; citizens will seek to know how they are governed; officials will seek to avoid shame. A statesman who will not work with these principles, but against them, may gain a more luxurious aeroplane, but he will pilot a poorer republic.
From the works cited
- An Inquiry into the Nature and Causes of the Wealth of Nations — The sovereign's three duties (defence, justice, public works and institutions) and the four maxims of taxation: equality, certainty, convenience, economy.
- An Inquiry into the Nature and Causes of the Wealth of Nations — Trace every policy to its effect on the price system and ask who bears the unseen cost: benefits are visible and concentrated, costs are diffuse and quiet.
- The Theory of Moral Sentiments — Judge conduct by the impartial spectator: what would a well-informed, disinterested observer feel about this action?