We respect the important role that the press plays and will give them respect, but it is not unlimited—they cannot place lives at risk with impunity.
—Attorney General Jeff Sessions, Aug. 4, 2017
U.S. intelligence officials have withheld sensitive intelligence from President Donald Trump because they are concerned it could be leaked or compromised, according to current and former officials familiar with the matter.
—The Wall Street Journal, Feb. 16, 2017
ON SEPTEMBER 10, 2001, I found myself in the grimy halls of Manhattan’s criminal court building. It was in those days a place of unrelenting gloom, threadbare and broken. I was the newsroom lawyer for the New York Daily News then. Three teenagers had been arrested for setting fire to a homeless man in a Chelsea housing project. It was one of those stories that had mesmerized the New York City tabloids for a passing moment: three young monsters who had broken up the dead-end monotony of their lives by torching a helpless vagrant. Shortly after the teenagers’ arrest, their lawyers had moved to close the pretrial proceedings. They feared the drumbeat of endless two-inch-high tabloid headlines would kill the kids’ chances of getting a fair trial. It was not a crazy idea. The publicity had been brutal. Only I was there to convince a judge that nothing could be further from the truth, that the closing of the courtroom would be an affront to the Constitution, to the citizens of New York, to the very concept of justice.
The taxi that day had exited the West Side Highway just north of the World Trade Center. My brand-new paralegal, just arrived in New York from the West Coast, had never seen the towers up close. We craned our necks to take them in, the sky a deep blue behind them.
We got to court early, handed our legal papers to the attorneys in the case, and took seats in the gallery, waiting for the defendants to be led in. Their teenage girlfriends and a posse of acquaintances filled the row behind us. The defense attorneys did a page-flicking speed-read of our brief. When a side door to the courtroom swung open and the kids came shuffling in, you couldn’t help but think, “These are the monsters? They’re babies.” Soft teenage faces, blank smiles, shell-shocked eyes doing a bad job of hiding fear and uncertainty. They gave half waves to the girls behind us.
The defense laid out its case for closing the courtroom to the judge, the usual points about how in tabloid New York it would be impossible to find 12 citizens with open minds to fairly weigh the evidence if the proceedings were held in the open. The prosecutor, Matthew Bogdanos, followed the standard playbook for the government in many such cases: The D.A. has no position on the defendants’ motion to close the courtroom to the public. The court should make its own call. When my turn came around, I made the case the way I always did in those days: low-key and straightforward, methodically citing legal precedents, one dry case citation after another, each establishing that in the United States it was an extraordinary thing to have a secret criminal proceeding. This wasn’t about how the Daily News or the New York Post was covering this particular story; this was a simple matter of applying the law. Of course the temptation was there for me. Wasn’t this the opportunity that someone like me lives for, to reach for some high-minded rhetoric about the people’s right to know, to speak in glorious prose of the majesty of a free press? Wasn’t that why I had become a First Amendment lawyer, to stand in front of a court and argue for the rights of the press and the public it serves? I let the moment pass. I was pretty sure the judge had seen the screaming headlines in the Daily News, convicting the kids in big block type and stoking the outrage of New Yorkers across the five boroughs.
As soon as I sat down, I noticed out of the corner of my eye some rustling at the prosecutor’s table. Bogdanos, inexplicably, was on his feet again. I had apparently disappointed him. He had been hoping for something more. He started addressing the judge again. While, yes, the D.A. took no position on whether the courtroom should be closed, he would be remiss if he didn’t remind the court what Thomas Jefferson had said about the importance of a free press. Bogdanos proceeded to launch into a discourse on freedom of the press in democracy and the Founding Fathers and Jefferson (“were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter”). It was glorious. I wondered whether he had seen the covers of the News and the Post.
The judge took it all in and then said he needed some time to look at the law before making a decision. He directed us to come back the next morning.
I would never see those defendants or their lawyers or that judge again or even know what the court decided. Sitting in my office on 33rd Street the next morning, a friend called. A plane had crashed into the World Trade Center. I tried to get to the internet sites of all the New York broadcast outlets. Everything was frozen. I walked down the hall to the newsroom. A couple of editors stood in front of a hanging TV monitor. Michael Daly, the columnist, joined us. We watched the second plane crash into the towers. Michael dashed off, hoping to find a way to get downtown. The editors began working the phones. I walked back to my office and put away my legal papers for that morning’s hearing.
The next time I heard anything about Matt Bogdanos, the assistant district attorney, it was in a front-page story in The New York Times dated April 24, 2004. By then, I had left the Daily News to become a lawyer for The Times. Assistant District Attorney Bogdanos was now Marine Colonel Bogdanos, an activated reservist. He was in Iraq, working at the National Museum of Iraq investigating the looting of ancient art. As he walked with a reporter through what remained of the museum, he said, “It breaks your heart. It’s devastating. We’re talking irreparable chapters of our history gone.”
By the time I came to The Times in 2002, September 11 was a singular driving force in the work I was doing. At the Daily News, we had had repeated fights with the NYPD over access to Lower Manhattan for our reporters and photographers to cover the story of the devastation and the recovery of the dead and the clearing of the site. My only appearance ever as a defense lawyer in the state criminal courts came when I represented a News reporter who had wandered into a frozen zone on the West Side Highway and been arrested. In my first weeks at The Times, I sued the New York City Fire Department on behalf of the paper and columnist Jim Dwyer, seeking the secret records of the department’s response on 9/11. It started a long legal journey that would end three years later at New York’s highest court as we finally broke through and won the right to hundreds of pages of records documenting that unprecedented day. But in the years following the attack, the dramatic changes in legal work at The Times all centered on the global war on terrorism, GWOT. Secrecy mushroomed across the federal government, justified by the imperative of keeping the nation safe. New tools of electronic surveillance were clandestinely rolled out. A generation of reporters headed off to Iraq and Afghanistan and later Libya and Syria to cover the hostilities. The need for journalists at our Washington bureau to cover deeply the Pentagon and the intelligence agencies, with a skeptical eye toward the legal implications of their actions, had never been more urgent or more difficult. The stories of how well the government was doing in keeping the country safe and what the CIA, the NSA, and the Pentagon were doing around the world in the name of the American people could be told fully only if reporters were able to cultivate anonymous sources and get access to classified materials. To work with reporters on national security stories is to enter a dark corner of both law and journalism: hazy, sometimes treacherous, and rife with uncertainty.
In the opening weeks of the Trump presidency, we were forced to face for the first time whether national security reporting was going to be different under the new administration. Just days before the inauguration, David Sanger, the paper’s national security correspondent, had dropped me an email:
David
Before we get ourselves another one of these investigations, could you give this a read? Close hold, needless to say.
Best
David
We had just spent years living with the Justice Department’s investigation into General James Cartwright, one of David’s sources for his reporting on the secret American cyber-warfare program to attack Iran’s nuclear facilities. The whole episode, with a lengthy investigation that sowed fear among government officials, had been a searing reminder of how high the stakes were for everyone involved in national security journalism. But apart from leak investigations and the possibility that a reporter would go to jail for refusing to identify an anonymous source, there was a separate and complicated legal question that in the entire history of the U.S. had never been resolved: Could journalists be criminally charged under the Espionage Act for publishing classified information? If there were ever a president who might want to find out the answer to that question, Donald Trump seemed like the one.
In some form or other, the Espionage Act has been around for more than 100 years. It was convoluted and confusing, and what it meant was often unclear. But one thing was certain: no journalist has ever been prosecuted for possessing or publishing classified information. The legal liability, for better or worse, had always fallen on the government insider who was a source, not on the journalist. When the Supreme Court decided the Pentagon Papers, it had ruled only that the government could not stop the publication of classified information. It was a great moment for press freedom—but not the end of the court’s opinion. Several justices, writing in dissents and concurrences, weighed in to say that different rules might apply after publication, and they were careful to leave open the possibility that journalists could be prosecuted under the Espionage Act.
No charges ever came, and in the decades since the Pentagon Papers, an uneasy equilibrium had set in. Journalists regularly received leaked classified information. News organizations weighed the information’s value and its risks and published when it seemed like the right thing to do for their readers. The government was almost always unhappy, but brought no charges against the journalists. It worked like many things in democracy, not perfectly, but well enough, preserving freedom of the press and allowing some important information to reach the public, yet maintaining more than enough secrecy for the government’s real needs. There was on both sides an appropriate dose of discretion: News organizations tried to make informed decisions about what to publish and the government stood down from finding out whether the courts would allow prosecution of reporters. In practical terms, few prosecutors relished the idea of getting into a high-profile brawl with a national news organization, especially if a story had shed light on government wrongdoing—and even more especially if the court case would put on public display just how incompetent the government was at keeping secrets.
Those of us on the media side had grown comfortable with the ambiguous legal situation, and there was little appetite for some “test case” to clarify the law—particularly if that test case happened to involve the company you worked for. But it did mean that the ultimate “what if” remained unanswered—what if the Justice Department did decide to charge a journalist? How would that play out? The statute clearly reached spies and leakers, but what about those on the outside, like reporters, who received the information and revealed it to others? A decade earlier, the government had gone after two pro-Israel lobbyists who had obtained classified information from a government source and passed it on to reporters. The wheels ultimately fell off the prosecution, but if two lobbyists could end up in the legal crosshairs, what prevented the government from going after reporters?
Most media lawyers wanted to believe that the answer to that question was the First Amendment, but few of them were completely convinced. The First Amendment argument had worked in other situations. The Supreme Court had refused to enforce a state statute that barred newspapers from printing the names of juvenile defendants and another one that prevented the media from identifying judges under investigation. In a series of cases, the court had held that only a government interest of the highest order could justify penalizing journalists for publishing the truth when they had received the information from sources and they themselves had engaged in no wrongdoing to get it. Those cases had been the backbone of my legal analysis when we published the Trump tax returns.
But the Espionage Act was not some overblown state statute protecting juvenile delinquents or shady judges or the tax returns of a presidential candidate. Who knew whether the First Amendment would carry the day in a national security case with prosecutors telling a court that the safety of the nation had been put at risk?
Attached to David’s email was the first draft of the story he was writing with veteran science reporter Bill Broad. They brought to the reporting an unparalleled understanding of cyber-warfare techniques and the technical intricacies of nuclear warheads. The attached story dealt with both: it was an account of how the U.S. had attempted to use cyber-strikes and electronic warfare to sabotage the North Korean nuclear missile program. For a while, the reporting showed, the sabotage appeared to be working. All of those failed North Korean launches, with rockets falling sideways as they left the launch pad, seemed beyond coincidence or a run of particularly bad luck for Kim Jong-un and his cronies. The reporters found there was even a name for it: “Left of Launch.” The idea was to sabotage launches rather than try to intercept missiles.
With the clock running down toward Inauguration Day, David and Bill had already made the trip to meet with national intelligence officials to lay out what they intended to publish. “Such conversations are always fraught,” David would say later in the paper. “Understandably, government officials don’t want to confirm or deny anything—in fact, they can’t. But it’s still important to listen to any concerns they might have about the details we are planning to publish so that we can weigh them with our editors.”
I heard nothing more about the story from the newsroom. Inauguration Day came and went. The Trump administration took over in Washington. Then, on a night not long after the inauguration, Sanger called. The reporting was complete, and editors wanted to move ahead with the story. The piece had been delayed in the usual way things get backed up in the newsroom in a heavy news cycle. But now an entirely new team of national security advisors was in place in the White House. David thought we could no longer rely on the back-and-forth he and Bill had engaged in with the now-departed Obama team. They needed to reach out to Trump’s advisors, let them know what we were about to report, and find out how they viewed their options with North Korea. As part of that process, the Trump White House would learn what our story intended to say. It would be a first step into the unknown with the new administration.
David and Bill set up the interviews. As David would later report in his book The Perfect Weapon, he sensed in his first meeting with K. T. McFarland, one of the president’s national security aides, that she and the team were not yet up to speed. As he described the story we had, it appeared that she had not been briefed fully on one of the most sensitive operations launched against North Korea in recent years. Nonetheless, she assured David that she saw no national security concerns and was optimistic it would all work out. It seemed to be going by the book, more or less. At least until the next day. David and Bill were called to a meeting in the Situation Room—an unusual step seemingly designed to underscore the sensitivity of the story.
Then came the tweet. It was Valentine’s Day, and President Trump was up early with his cell phone in hand, tweeting. The message from the president was impossible to ignore for those of us involved with Sanger and Broad’s reporting:
The real story here is why are there so many illegal leaks coming out of Washington? Will these leaks be happening as I deal on N. Korea etc?
The few of us inside The Times who knew about the story didn’t know what to make of the random reference to North Korea. Strange coincidence? Just another round of presidential bucket-banging about one of the president’s favorite topics? Something more worrisome? (Ten days later, Trump would finish up his February 24 anti-leaker Twitter tirade with the ominous: “FIND THEM.”) There was no way to tell.
David, Bill, and I talked regularly over the course of February, and they filled me in on what they were hearing from the Trump team. They met with General H. R. McMaster, who had taken over following the departure of the disgraced Michael Flynn. Officials in the intelligence community were cooperating as much as they could, but none of them was prepared to say with any certainty how President Trump would react to a Times story built in part on classified secrets about North Korea. Lawyering is always about predicting risk, and we were left to read whatever tea leaves we could find. At one point, there had been a phone call with McMaster. He had been on the job less than a week. It was a short get-to-know-you sort of conversation, plainspoken and civil, with our reporters and editors and Arthur Sulzberger Jr. and me, but we learned nothing that would help us better gauge the likely reaction in the White House.
Other signs were worrisome. In mid-February, after David’s meeting with McFarland, Donald McGahn, the White House counsel, had written a letter to us, bluntly stating that the proposed North Korea article “will compromise and/or otherwise negatively impact the national security of the United States.” He wanted to set up a meeting with our publisher. The request wasn’t unprecedented but it was unusual, especially coming from the White House counsel rather than someone on the national security staff—and especially coming from a White House counsel whose verb of choice was “will,” not “might,” not “could.” Was a new administration, with less than a month in office, getting ready to turn its back on history and prove that this White House wasn’t the Bush White House or, for God’s sake, the Obama White House? Were Trump and his team really prepared to cross that century-old line and threaten journalists with criminal prosecution under the Espionage Act?
Most new administrations, faced with the mind-numbing complexities of the Espionage Act and the absolute certainty of a constitutional showdown for the ages, were not eager to make a sharp break with history and push forward with a criminal prosecution of reporters. The Trump administration was not most administrations.
It had been just a few weeks since Jeff Sessions testified at his confirmation hearing about how the new Trump Justice Department was going to deal with journalists and confidential sources. Senator Amy Klobuchar, the Minnesota Democrat and the daughter of a newspaper journalist, asked for a commitment from Sessions that journalists would not be jailed for “doing their job.” Sessions begged off, saying he was not fully familiar with DOJ policies about the press and leaks. He understood that the department had “sensitivity to this issue,” but he also believed a news organization could be a “mechanism through which unlawful intelligence is obtained.”
It was gobbledygook, to be sure, but menacing gobbledygook. The press as mechanism? “Unlawful intelligence” (compared to, say, “lawful intelligence”)? What did any of that mean? And had he really shown up for his confirmation hearing unaware of the issues? Nobody in Congress could have missed the media’s scorched-earth coverage in 2013 of how the FBI had seized the records of journalists at Fox and the AP. The DOJ, very, very publicly and at the direction of the White House, had reworked its internal guidelines to make it harder for federal prosecutors to go after journalists’ sources. Even if that was ancient history to Sessions, the issue of leaks would have been hard to miss if he was spending any time reading his boss’s Twitter feed (and how could he not, given what the president was saying about the man?). Trump had regularly gone nuts about leakers and leaks, at least about those leaks revealing new developments in the investigation of his campaign’s ties to Russia.
The uncertainty about whether the government would move against The Times was not an entirely new experience for me. There had been one other time when I had seriously thought that a government might finally be willing to step across the line and test the limits of the Espionage Act. That was in 2010, when The Times had received hundreds of thousands of pages of secret Pentagon and State Department documents from WikiLeaks. The disclosure was so different from anything that had come before—a massive number of documents, delivered electronically through a rogue offshore internet site, the motivation of the inside leaker unknown and unknowable. It forced us to reconsider what we knew about publishing secrets and to ask whether the old rules, forged before the internet, still applied in a digital age—whether the U.S. government was still willing to give the press a pass on publishing classified information. Obama was serious about going after leakers. It didn’t take much imagination to envision him taking a second (or third) look at whether the war on leaks should be taken to the next level in a world where the digital future seemed to put all secrets at risk in ways that were novel and scary.
On June 23, 2010, I had been at the oral surgeon, and it had not gone well. Groggy, still bleeding, with a huge wad of gauze in my mouth, I stood in the waiting room trying to get clearheaded enough to make my next appointment. My cell phone rang. It was Executive Editor Bill Keller’s secretary. She said Bill wanted me to come to a meeting right away. I explained to her about the oral surgery, the blood, the gauze, how things had not gone well, skipping over the part about the malpractice suit I was thinking about filing, and asked whether there might be a better time for me to meet with the executive editor, maybe a time when I didn’t have a wad of gauze the size of a tennis ball in my mouth. She said that wasn’t possible. Bill was pretty certain I would want to be at the meeting, and I should come to his office right away. What better place to bleed to death after oral surgery than the newsroom of The New York Times? I got on the N train and headed back to Midtown.
By the time I reached Keller’s office, having discarded my bloody wad of gauze in the newsroom on the way through, the meeting was already going full bore, a half-dozen journalists sitting around his coffee table with more on the phone. The headline was that The Times was going to get the first batch of hundreds of thousands of pages of classified U.S. documents that had been leaked to WikiLeaks. The numbers were astonishing, as it turned out: nearly 500,000 reports on the U.S. military missions in Afghanistan and Iraq, and another 250,000 diplomatic cables from the State Department. Editors of The Guardian in London had enticed the founder of WikiLeaks, Julian Assange, to share the materials with The Times as well as The Guardian and Der Spiegel, the idea being that spreading the documents across three mainstream news organizations would magnify the force of the disclosure. Having a U.S. publisher involved, with the protections of the Pentagon Papers ruling, also made it less likely that there would be a court order that would effectively halt publication.
In Keller’s office, the discussion was electric—which reporters could be called in to mine the documents, how the materials would be stored and catalogued, who could go to London to meet with Assange and The Guardian, what the documents were likely to show, what secrets were no longer going to be secret, what story lines were going to be worth pursuing. And then out of the blue, as if Keller had just then remembered I was sitting there, he turned and asked whether we could do it—“it” being publishing the largest trove of leaked classified documents in U.S. history. The conversation stopped. None of this was helping the bleeding in my mouth. I wondered whether I could get the gauze back. “I think so,” I said. It hardly seemed to be the time or place, as visions of Pulitzer Prizes danced in people’s heads, to start dissembling about how the law was actually completely unclear, how the Espionage Act was an impenetrable mystery, how the First Amendment had never been tested in a case like this, or any of the rest. So I went with “I think so,” which is pretty much standard lawyer code for “I have no clue—let me get back to you on that.”
Over the next days, my colleague Jake Goldstein and I started reading everything we could find on the Espionage Act. We tried to understand what could push us over onto the wrong side of the law. We didn’t know what Assange had done to get the documents, and we supported Keller’s decision to treat him as a source, not a publishing partner. (It was one of the things that would ultimately lead Assange to break off his relationship with The Times and go nuclear, including a weird scene the following year at Berkeley, where Bill and I were on a panel at the journalism school and Julian denounced The Times as he floated above us on a huge video screen, live from England, like something out of Orwell’s 1984.) Other questions couldn’t be taken lightly. We looked into whether our journalists who were not U.S. citizens faced special risks and whether our board, with a legal duty to our shareholders, needed to play a role. And in the final days before the first set of stories was to be published, Jake and I became the lords of redaction, double-checking every document that The Times intended to post online to see what our journalists had flagged to be blacked out and to look for anything else that we thought should be removed.
The agreement among The Guardian, The Times, WikiLeaks, and the German publication Der Spiegel was that everyone would go live at the same time—5:00 p.m. New York time on July 25, a Sunday. I had been in upstate New York that weekend and drove back to The Times that morning. For the first (and last) time in my years at The Times, I was empowered by the editors to make the final call to publish. I stood at the foreign desk with reporters and editors who had been living with the project for nearly two months. The call was supposed to be a no-brainer: as soon as WikiLeaks posted its stories, the three publications could follow suit immediately. Five o’clock came. The WikiLeaks site showed nothing new. An editor on the desk kept hitting the refresh button. I wondered for a moment whether we had been set up by Assange and WikiLeaks. Were they trying to get the mainstream publishers to go first, so they could later make a legal argument that they were only publishing what was already public? I asked one of the journalists to try to reach WikiLeaks. We were assured that the hang-up was not devious political machinations of a shadowy offshore organization but something decidedly more mundane: a computer glitch. A few minutes later, the reports flowed from New York, England, Germany, and wherever in the world WikiLeaks existed.
In the days after our stories went live, Senator Joe Lieberman and others would urge the Justice Department to investigate whether The Times could be criminally prosecuted. But I was confident we had made the right decisions in committing to go forward with publishing. We had been selective in what we chose to use, we had gone only with those documents that shed light on U.S. policy and the conduct of U.S. military operations and diplomacy, we had redacted names of average-citizen Afghans who might be targeted by the Taliban. We had given the government a chance to comment in advance on what we intended to publish. We had made sure that the secret documents were kept securely in our possession, safe from hacking or inadvertent disclosure. (The security system put in place involved, among other things, an ever-changing password, meaning I was regularly shut out from access at critical moments and went into Unhappy Lawyer Mode as I had to track down the keeper of the key.) Our legal call was made easier, too, by the fact that a prosecution of The Times seemed unlikely when the same materials were going to be available elsewhere on the internet, thanks to Assange and the other publishers. The Times went on to publish two other sets of stories based on the documents, one about Iraq and a second based on State Department cables.
The legal calculation was much the same three years later with the files from the National Security Agency leaked by Edward Snowden. Snowden’s disclosure had been even more breathtaking, both in its scope and in its political impact. The public was told for the first time the astonishing scope of the NSA’s surveillance of Americans’ communications. The Times had unhappily sat on the sidelines when the first explosive disclosures came out through The Washington Post and The Guardian.
Later, The Times would form an uneasy partnership with The Guardian to get access to materials from Snowden. The Guardian was under pressure from officials in the U.K. and wanted to make sure that the electronic files were somewhere in the U.S., where the likelihood of government action against a news organization was remote. The Guardian editors were right. U.K. intelligence officials showed up at The Guardian and presided over the destruction of a hard drive containing the information obtained from Snowden. The two papers continued to collaborate on stories, working from a set of electronic documents that had been brought to the U.S. by a Times reporter who packed a computer drive into a suitcase. And just as with WikiLeaks and with every other national security story, the government had stood down and not pursued legal charges against any journalist even as prosecutors won an indictment of Snowden, who remains in Russia.
But now, in February 2017, it was impossible to know whether the lessons of prosecutorial restraint still pertained with Trump in the White House. Over the course of later February, as David and Bill did additional reporting for the North Korea story, the editors and I read through multiple drafts of the piece (I lost count after a while), and we came to understand more fully what David had been saying all along: some of the information we intended to publish was certainly classified, but much of it wasn’t truly secret. Government officials in a variety of forums had hinted—or more—at how the U.S. was attacking the North Korean missile program before the missiles were in flight. The strategy was a significant change in nuclear deterrence, and one that Americans needed to know about as they watched, and feared, the ratcheting up of tensions between the U.S. and North Korea. And it was impossible to believe that the North Korean missile scientists, for all their ineptness, were unaware of why so many of their rockets were fizzling and falling like doused fireworks. The possibility of a showdown with North Korea was made palpable in early February when the North Koreans fired off another missile, one capable of reaching North America. The Times headlined its article: “North Korea Fires Ballistic Missile, Challenging Trump.”
All of that should have mattered to the White House in thinking about any prosecution—the prior disclosures, the public benefit, the diligent reporting—but as February turned to March I wasn’t convinced that it would. In a single story, we would be delivering up a trifecta of Trump’s hottest-button talking points: unchecked leaks, the hostile press, and out-of-control North Korea. The February 14 tweet, with its condemnation of leaking and the all-too-coincidental reference to North Korea, stayed with me. You could see the narrative: The New York Times, enemy of the people, aided and abetted by disloyal public servants willing to leak classified information, had endangered the country by revealing secrets to a North Korean regime that was intent on destroying all of us—even after The Times’s publisher was directly warned of the consequences. It would play to Trump’s base and it might well play to the Sessions Justice Department.
There had been no follow-up to the White House request for a meeting with Times publisher Arthur Sulzberger Jr. (I took that as a good sign except in those moments when I started thinking it was a bad sign.) By the start of March, the article was ready to go. Executive editor Dean Baquet wanted to make sure that, no matter what the Trump administration was saying about the press or whatever threat hung in the air, we weren’t pulling any punches. He knew his role well: “And as I always say in cases like this—easy for me to push!!!”
On March 4, the story went live: “Trump Inherits a Secret Cyberwar Against North Korean Missiles.” It was made available in English, Chinese, and Korean. It was a thoroughly reported story, offering readers a sober assessment of the “imperfect options” that the Trump administration faced in staring down the North Koreans:
An examination of the Pentagon’s disruption effort, based on interviews with officials of the Obama and Trump administrations as well as a review of extensive but obscure public records, found that the United States still does not have the ability to effectively counter the North Korean nuclear and missile programs. Those threats are far more resilient than many experts thought, The New York Times’s reporting found, and pose such a danger that Mr. Obama, as he left office, warned President Trump they were likely to be the most urgent problem he would confront.
With the story released to the world on a Saturday morning, we waited to see how Trump would respond. In this new White House, what advisors thought didn’t necessarily count for a lot. The question, inevitably, was how the president would react.
And, not long after the story went up, the presidential tweets came rushing forth—just not about our story:
Terrible! Just found out that Obama had my “wires tapped” in Trump Tower just before the victory. Nothing found. This is McCarthyism!
Is it legal for a sitting President to be “wire tapping” a race for president prior to an election? Turned down by court earlier. A NEW LOW!
I’d bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!
How low has President Obama gone to tapp my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!
Wherever the president’s attention may have been that day, the North Korea story to me was part of an important tradition in American journalism. In January 2014, in the aftermath of the Snowden disclosures, Obama had laid out in a speech the nuanced and exceptional way that the American system worked. Obama acknowledged that the Snowden materials had ignited a public discussion about what U.S. intelligence agencies should be allowed to do, and how. “One thing I’m certain of: this debate will make us stronger,” Obama said. “No one expects China to have an open debate about their surveillance programs, or Russia to take the privacy concerns of citizens into account.”
Then he pivoted to the uncomfortable truth that leaks created risks: “I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy.”
People would debate whether the Snowden disclosures did actual harm but implicit in Obama’s remarks was a vindication of the First Amendment: publishing of the Snowden disclosures had sparked a critical public debate that would never have happened otherwise.
I understood why some people were uncomfortable with the idea that publishers should be beyond the reach of the law, even when they published classified information. It had been easier to embrace the logic of that position in a different day. Once, not that long ago, the established media organizations were truly gatekeepers—deciders with an appreciation for the responsibility that came with the job. Now everyone with an account on Twitter, Facebook, or Instagram was, in some way, a publisher. If you believed that publishers should be exempt from prosecution, you had little choice but to accept, at least in theory, that a college kid still living at home had the right to decide whether to publish classified secrets on his Facebook page and put national security at risk without fear of legal consequence.
No matter how much you wanted to hug the First Amendment, it was not easy to love that possibility: a system that placed national security in the hands of anyone who happened to receive a leak and have internet access. But there was a larger context to consider. I remembered being invited in 2012 to speak at a journalism school in Cameroon. The campus was a collection of worn-down wooden structures a few miles from downtown Yaoundé. The kids in the class were in hyperdrive, and they peppered me in French and English with questions about WikiLeaks. They lionized Julian Assange. They had studied WikiLeaks intently and for good reason. The State Department cables disclosed by Assange had provided the citizens of Cameroon for the first time a look at how their corrupt government was ripping off their country’s wealth day after day, unchecked. It was an object lesson in what Americans had come to take for granted: the liberating power of information.
We as a country made a trade-off. In embracing an open system with laws that bestowed the press (and everyone else) with an astonishing level of freedom, we accepted the reality that a certain amount of risk was inevitable. That was the price we paid. Maybe the government needed to be better at identifying what really needed to be secret and keeping those secrets truly secret. Maybe we needed to be better at inculcating all citizens—now all potential publishers—with a sense of social responsibility. Maybe we could draw a sensible legal line between the publishing done by The New York Times and that spewing forth from the 20-year-old in the bathrobe, although how we could do that under the First Amendment was not obvious, especially with a Supreme Court that had ruled the free speech rights of the press were identical to the rights of individuals. But I continued to believe that the risks that came with freedom were worth the price.
I also believed The Times had been right, in its North Korea reporting and other sensitive national security stories, to give the government a chance to respond before publication. Many readers saw that process as a surrender. Snowden specifically turned to Glenn Greenwald and Laura Poitras to get his purloined NSA data published, knowing they would not hesitate to publish first and let the government find out what was up at the same time as millions of readers around the world. And sometimes we got burned by those who decided to play by different rules. In August 2013 the State Department had issued an emergency order temporarily closing 19 embassies without saying why. The government asked that The Times not publish one detail that our reporters had uncovered: the closure decision had been made after U.S. intelligence agents intercepted communications between two senior al-Qaeda leaders. The Times editors killed that detail from the story, only to be taken aback—actually, they were furious—the next day when the McClatchy newspapers told the whole story, including disclosures about the interception. McClatchy had decided not to check with the government. Relations between the two news organizations were not improved eight weeks later when The Times ran a story saying that the McClatchy story had led the terrorists to change their method of communication. McClatchy found the report preposterous.
Even in the newsroom, the issue was still a hot-button topic in some corners. The Times had been widely criticized after it held for more than a year the blockbuster story by Eric Lichtblau and Jim Risen of how U.S. intelligence operatives were illegally conducting surveillance on Americans’ telephone calls. The decision to hold the story had come under pressure from the White House, which claimed the disclosure would undermine critical anti-terrorism efforts. The spiking of the story came on the eve of the 2004 election. When the story finally ran in late 2005 with additional reporting, many people were convinced that our decision to stand down had helped George Bush win reelection. In their minds, the very people engaged in wrongdoing had been allowed to veto the story.
It was important to debate whether The Times had been too timid then or at other times, but context was important: our newsroom has regularly decided that the government’s objections were too abstract, not believable, insufficiently weighty, or given by officials too far down the food chain to know, and our editors have then resolved to move ahead with publishing. But it’s not a science. Editors sometimes get it wrong. National security is intrinsically the hardest of the calls they have to make. They understand the risk that any given disclosures might prove lethal, and they never have enough information to act with absolute certainty. Which is why hearing what the government has to say is not handing over a veto but giving editors a better shot at making a decent decision. If we were ever forced to defend against a criminal charge, I wanted our legal narrative to be one of responsibility, serious deliberation, and a demonstrable concern about the public’s best interests.
If the administration had any legal concerns about the North Korea story post-publication, we never heard about them. But in October, Jeff Sessions was back in front of a Senate committee to talk about press freedom. It was not particularly reassuring. Senator Klobuchar was still looking for answers to her question about how he and the DOJ were going to protect the rights of the press.
KLOBUCHAR: Will you commit to not putting reporters in jail for doing their jobs?
SESSIONS: Well, I don’t know that I can make a blanket commitment to that effect. But I would say this: We have not taken any aggressive action against the media at this point. But we have matters that involve the most serious national security issues, that put our country at risk, and we will utilize the authorities that we have, legally and constitutionally, if we have to. Maybe we—we always try to find an alternative way, as you probably know, Senator Klobuchar, to directly confronting a media person. But that’s not a total, blanket protection.
Nobody inside The Times needed a translation of Sessions-speak: journalists might go to jail for, yes, doing their jobs.
By then, Times reporters had learned more about what the president had been up to on Valentine’s Day, when he had begun his morning with the tweet harangue about leaks and North Korea. Later that day, he had met with FBI director James Comey. After Comey was fired, Mike Schmidt of The Times tracked down a source who knew what had happened at the Valentine’s Day meeting, thanks to a memo Comey had written. “Alone in the Oval Office,” Schmidt reported, “Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.”
It was just as well we didn’t know that in real time.