Counter Poised (10 page)

“Yes, sir. It’s true that ever since Watergate, when the
Washington Post
reporters Bob Woodward and Carl Bernstein broke the story about the Republican break-in at Democratic National Committee headquarters during the Nixon administration, newspaper reporters have been in what I’ll call the ‘Watergate mode.’ That story made Woodward and Bernstein immensely famous as the only reporters to ever cause a president to resign. For years other reporters have been trying to duplicate their fame by publicly reporting anything they can get their hands on—even top-secret national security information. They think it’s a great scoop.”

Buffalo was growing more and more incensed.
I’ll kill Lannis with my bare hands! If George was here, Lannis would be dead already!

“Yes, it’s a shame,” responded the admiral. “I realize public oversight serves the purpose of placing checks on the executive branch, but over time the constant media barrage and the continuing leaks from the government totally erode our capability to gather the information we need to identify and prosecute terrorists. And it also turns public opinion against those who are trying to protect them because the intelligence agencies are always portrayed as bad guys invading our privacy.”

“It affects members of Congress as well, Admiral. They get a lot of their news from the same place we do. Even after DC, there is still a large contingent who continue to block all efforts to wage an effective war against terrorism because, by design, such a war
must
violate some people’s civil rights. There’s simply no other way to find terrorists in your midst.”

At this point, Buffalo went into a coughing fit.
I can’t believe my ears! Earlier this morning, Lannis espoused differing opinions on every issue. Now he’s presenting George’s opinions as if they’re his own! Lannis said the terrorists were trying to take away our freedoms, not spread radical Islam. He said we needed the media to control the runaway executive branch and protect our civil rights. Now, just because the admiral suggested that he shared George’s opinions, Lannis is changing his story and presenting them as his own. I knew this guy was an asshole, but this is a new low, even for Lannis!

“Are you all right, Commander Sewell?” asked the admiral.

“I’ll be fine, sir. I just got choked up a little there,” responded Buffalo while glaring in disbelief at Lannis.

The admiral turned back to Lannis and said, “Very perceptive of you, Commander, but unfortunately those issues are beyond our scope of responsibilities. We live in a country founded on principles of freedom and on civilian control of the military. It’s not our position to second-guess Congress.”

“That’s true, sir. I’m merely pointing out that with such long periods between attacks, our country never gets into a wartime mode. While we initially fight back vigorously after an attack, with no additional attacks forthcoming, we seem to lose our way. Congress erodes powers it initially gave to the president. Eventually, we lay out the red carpet for another attack. That’s what happened in DC, and here we are five years later doing it again.”

“So give me your assessment, Commander. Can the radicals do it? Can they radicalize the whole world?”

“I don’t know, sir. It seems to me, the Muslims themselves have to be the ones to combat this threat. If the burden continues to fall on Western countries to combat radical Islamists, the War on Terrorism will be perceived more and more as an attack on Islam itself. As I said before, it is estimated that eighty-five to ninety percent of the world’s one point three billion Muslims are not yet radicalized. Someone has to educate them and get them actively involved in combating radical Wahhabi/Salafi ideology. Otherwise, I believe this crisis will engulf the entire world.”

When the briefing ended, Buffalo tried to cut between Lannis and the admiral so he could isolate Lannis and give him a piece of his mind.
I’m going to tell that asshole to find his own way home. After today’s performance, he’s no longer welcome in our carpool
. However, Buffalo had to fall in behind. Lannis was so tightly stuck to the admiral’s ass there was no getting between them.

Chapter 10

Around 1500 hours the afternoon of the briefing, George wandered down the hall to get a fresh cup of coffee.
A strong shot of caffeine should give me some energy
, he thought. Arriving at the coffee maker, he found a pot that had obviously been sitting on the burner for several hours, condensing the coffee into a thick, dark, concentrated sludge. George chuckled.
Strong enough to strip paint…maybe I should take that last cup—might be just what I need…these early mornings are killing me
! Quickly deciding against it, George poured out the sludge and made a fresh pot.
Not chicory coffee, but it’ll do in a pinch
!

Passing Lannis’s office on the way back, George heard Lannis and Buffalo going at it in a verbal shouting match.

“Yeah, well you can find your own way to and from the base from now on, you little weasel…starting with finding your own way home today. You’re out of the carpool, and that’s it.”

George stepped into the office. “What’s going on here?”

“Just be glad you didn’t see the rest of this guy’s performance this morning,” answered Buffalo. “You would have killed him.”

“I’m always glad when I don’t see Lannis,” responded George, trying to smooth things out with a little humor. “What’s so special about this time?”

“Nothing,” answered Lannis before Buffalo had a chance to respond. “Buffalo and I were just talking about the media when he went ballistic on me.”

“Hey, can’t you guys just talk about the weather or something?” George quipped. “What’s the matter with you?”

Buffalo jumped in. “Our esteemed little intel officer here seems to flip-flop on the issue of the media. First, when he’s with us in the car, the ladies and gentlemen of the media are the defenders of our civil rights—they can do no wrong. Then, when he’s briefing the admiral, they amazingly become a bunch of traitors revealing national security secrets and weakening our chances of detecting terrorist attacks. Then, back here in his office, he’s defending them again. I’m just sick of his crap.”

“So what are you saying now, Lannis?” asked George.

“I was just saying, reporters like James Risen and Eric Lichtblau have the right to keep their anonymous sources confidential,” responded Lannis.

“Risen and Lichtblau, the
New York Times
reporters who published the story in 2005 about the Bush administration’s wiretapping?” asked George.

“Yeah, they’re a couple of traitors,” said Buffalo. “If it wasn’t for them, we probably could have prevented the Washington DC attack. And now, Lannis is defending their right to withhold the names of the traitors in the administration who disclosed the details of that top-secret program to them.”

“Well this should be good,” responded George, settling into one of Lannis’s guest chairs. “Let’s hear your argument, Commander Wayne.”

Lannis looked as though he was tiring of this discussion, but responded anyway. “The Supreme Court Justice William O. Douglas once wrote that a reporter is no better than his source of information. Unless he has a
privilege
to withhold the identity of his sources, his sources will dry up, and his ability to enlighten the public will be ended. Without sources, the reporter’s main function would be reduced to passing on to the public the press releases that the various departments of government issue. Now you guys may disagree, but I don’t think that’s what we want or need here in America.”

Buffalo jumped in, “But what he’s not telling you, George, is that Douglas wrote that in a
dissenting
opinion in the case of
Branzburg v. Hayes
in 1972. The
majority
opinion of the Court that day, written by Justice Byron White, was just the opposite.” Buffalo turned to Lannis. “As the admin officer, I also have the collateral duty of serving as the staff’s legal officer. After you and I talked earlier, I looked up this case. The majority opinion is clear and unambiguous.” Buffalo pulled a folded piece of paper from his pocket and began to read it. “Here’s what it said: ‘The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of the press guaranteed by the First Amendment. We hold that it does not.’ Now I don’t know about you, but I don’t see how the court could have been any clearer,” concluded Buffalo.

“It sounds pretty clear to me, too,” said George. “So what’s the controversy?”

“Well, amazingly enough,” continued Buffalo, “lower federal courts have ignored the Supreme Court’s majority opinion. Overall, White’s opinion was a scathing dismissal of the journalists’ position that they had a legal privilege to withhold the names of their sources. But it seems Justice Lewis Powell wrote a concurring opinion in that case in which, although he agreed with the Court’s holding in that particular case, he said journalists might be able to refuse to testify
under certain circumstances
.”

“Ah, so let me guess,” ventured George, “The courts have taken Powell’s
concurring
opinion as the law and have attempted to define what those certain circumstances are. Am I right?”

“Yep, exactly right,” said Buffalo. “I just disagree. I don’t think there are any circumstances that justify a special privilege to protect reporters from testifying. Other privileges, like attorney-client or doctor-patient privileges, are tied to more formal confidential relationships. They exist in order to promote candor between a client and his attorney or a patient and his doctor. If you have a reporter-source privilege, the reporter may talk to a lot of people while reporting a story and then just decide, willy-nilly, who will be privileged and who won’t. I don’t think that’s right.”

“It’s not willy-nilly,” Lannis responded. “The law says that if a source requests or is given confidentiality before giving the reporter the information, the reporter has to keep it confidential. If the source gives the information first, the reporter has no requirement to keep the source a secret. So it’s not willy-nilly.”

Buffalo looked at George, hoping to get some support on the issue.

George shrugged. “Sorry, Buffalo, but he’s right…to an extent.”

“To what extent?” asked Buffalo.

“Well, it’s a correct statement of how reporters are supposed to handle their sources, but it’s not
law
. It’s just some arbitrary ethics rule that reporters have set up to govern themselves. It shouldn’t be confused with law.” Turning to Lannis, George concluded: “The law, if Buffalo is correct, is what Justice White said in the Supreme Court’s majority opinion when he said there is no reporter-source privilege.”

George and Buffalo exchanged a satisfying glance.

Lannis squirmed in his chair, obviously uncomfortable with the way this discussion was heading. “Look guys, even if the courts are skating on thin ice from the point of view of legal precedent, these days the courts have created a balancing test in which they weigh the public benefit of the leak against the harm the leak caused. If the harm outweighs the benefit, then the reporters have to testify and reveal their confidential sources. If the benefit outweighs the harm, the reporters are privileged and don’t have to testify. In the case of Risen and Lichtblau, the public benefit was that it was brought out into the open that the President of the United States was breaking the law. I think that’s pretty important.”

Lannis was agitated now. He got up and began pacing behind his desk to stop his nervous knee-jerking. “What you guys seem to forget is there were already procedures in place that enabled the president to legally request the wiretaps, and presidents before George W. followed those procedures. According to former President Jimmy Carter, warrants could be obtained very quickly—and there was no reason not to follow the procedures. A good number of Republicans came out against the warrant-less wiretaps, too, so it wasn’t just a matter of Democrats bashing a Republican president, which I know you were about to say. The fact is, if George W. had followed the procedures, there would have been no leak and no story to report in the first place.”

Now Buffalo was on his feet and agitated. “Look, we all know about the warrant procedure set up under the Espionage Act. But it’s a question of putting the cart before the horse. Those procedures require a federal judge to issue the warrant, and he’s not likely to do so without a showing of probable cause. That’s fine if you’re building a case against someone as a spy. But when you’re trying to weed out terrorists in your midst, you have to throw a broader net, and it’s only through your wiretaps that you get the information necessary to show probable cause.”

Lannis stopped his pacing and pointed an accusing finger at Buffalo. “That’s backward to how we do things in this country. Besides, the people you’re likely to catch are ordinary citizens discussing terrorism. The terrorists know better than to talk about it on the phone. You’ll have the FBI showing up at schools and questioning little girls because they said key words while discussing a homework project with their friends.”

“You make it sound like just because you get some false alarms, you should never turn on a burglar alarm!” Buffalo shot back. He took a menacing step toward Lannis. “And don’t point your finger at me like I’m being un-American. I know it’s backward, but it’s necessary and the reporters should have known it. They and their source pretty much destroyed our ability to detect attacks prior to DC. I’d say even under your rule, the harm caused by the leak far outweighed the benefit, so they should have to disclose their source.”

George got up and paced thoughtfully across the room to the window where he looked out at the beautiful view of the alley and trash dumpster behind the headquarters building. “I never knew you had such a beautiful view, Lannis.”

“Very funny,” Lannis sullenly responded.

George laughed. “Seriously, I think you’re
both
missing the point. All of the attention is on whether or not these reporters have to respond to a subpoena to testify in court and reveal their confidential sources. In a case where top-secret national security information has been leaked, I would certainly like to see the source of that leak identified and prosecuted—he or she did an excellent job as a spy for the terrorists. However, the more pressing issue is what should be done about the reporters themselves.”

“What do you mean?” asked Lannis, sitting back down at his desk as Buffalo eased away.

“Well, back before the
Washington Post
was blown up by al-Qaeda, I heard one of their reporters, Walter Pincus, say something that’s very appropriate here. He said just because someone tells you something, even if it’s true, it doesn’t mean you have to put it in the newspaper.”

“Here, here!” said Buffalo.

“The fact is,” George continued, “Risen and Lichtblau learned information they knew was top secret. Now these are intelligent men. They knew the nature of the War on Terrorism. They knew it was basically a war of
intelligence
.”

George held both hands up in a gesture indicating he didn’t want any interruptions until he finished this thought. “They also knew of the danger of failing to obtain and analyze data in a timely fashion in this age of nuclear proliferation. They understood the information they had obtained was crucial to our ability to weed out terrorists in our midst. To a large extent, the success of our intelligence efforts depended on the terrorists assuming the U.S. government would never wiretap its own citizens. The terrorist cells here were probably told by the al-Qaeda leadership that the emphasis placed on the rule of law in the U.S. would preclude our intelligence agencies from implementing the type of surveillance program necessary to thwart their activities.”

George lowered his hands and stepped back.

“Yeah, I hadn’t thought of that,” said Buffalo. “If they thought we weren’t listening, they would be more careless in their communications, making it easier for us to spot them.”

“That’s right. But once the program is revealed, even if the program continues, the terrorists clam up and become a lot more careful. They change their calling patterns to avoid detection. Then the only people you catch are little girls doing their homework.”

Buffalo turned to Lannis. “That’s a great service the
Times
is performing for the nation,” he said sarcastically.

Lannis just shook his head like George and Buffalo were a couple of conservative morons.

“In fact,” George continued, “before that article was published, the Bush administration asked that the story
not
be published because the surveillance program was an essential part of its efforts to prevent another 9/11 on American soil. Then, in the face of all of this knowledge, Risen and Lichtblau and their editors chose to take this crucial information and openly publish it in the
New York Times
.”

Lannis let out an exasperated sigh. “George, the Bush administration made that request all the time—probably more often than any other administration. They were always asking the media not to publish stories. Some stories were; some weren’t. The administration really abused that privilege, and it caught up with them.”

“I’m not saying the Bush administration was perfect,” continued George, “Far from it! But I don’t buy that
Little Boy Who Cried Wolf
excuse. Reporters and editors should be able to tell which stories the administration wants to suppress for political reasons and which ones are crucial to national security. In 1972, the
Washington Post
had every right to publish Woodward and Bernstein’s Watergate story. A president broke the law, and he did it for political reasons. But in 2005, it was a serious breach of national security for the
New York Times
to publish details of how we were tracking terrorists.”