Often on Lawfare, we think and write about the tensions between government’s responsibility to protect national security and the media’s role in informing the public about sensitive national security and foreign policy matters. We consider the government’s role in protecting classified information versus the press’s decision to publish information it deems in the public interest. We dissect leaks of classified information and the investigations and criminal culpability of those who are complicit in unauthorized disclosures. We think through legal opinions and policies and procedures, and how much of the work done in the national security community can be reported on and released; we analyze the Freedom of Information Act (FOIA), its value and its inadequacies; we think and write about whether an appropriate balance was struck when legal proceedings or pleadings are closed to the public in the name of national security.
Much of this work exists at the intersection of national security and press freedom. This intersection is generally understood to be in conflict or, at the very least, to exist as a well-worn tension between divergent interests: protecting national security vs. protecting press freedom.
Despite how this natural tension plays out in the day-to-day work of national security professionals (including lawyers) and journalists, the legitimacy of government national security work depends on its practitioners and leaders having a foundational respect for the free press and an unfailing adherence to the Constitution that provides for it. Protecting national security and protecting press freedom are not mutually exclusive. They are interdependent: A free press cannot operate in an environment that is not protected to a reasonable degree by appropriate national security activities; a national security apparatus betrays its purpose and core values if it does not recognize that it exists to protect freedoms, including those guaranteed to the press.
I have thought about this issue a great deal over the past year in the context of then-candidate Trump, and now President Trump, and his repeated, sustained attacks on the media. The First Amendment is, in its text alone, a provision prohibiting Congress from making a law abridging freedom of the press. The First Amendment text is silent as to the relationship between the executive and the media. So, the question to wrestle with is this: whether the president’s constant, intentional, derogatory statements and other hostile activities with respect to the press are consistent with an ability to fulfill, and fitness for, his constitutional role as commander in chief. I think they are not.
In government practice, protecting First Amendment rights is an integral part of daily national security lawyering that takes place in the intelligence community and at the Department of Justice. The Foreign Intelligence Surveillance Act and the Attorney General’s Guidelines for FBI Domestic Operations, for instance, are examples of a law and policy, respectively, that specifically demand an analysis of First Amendment considerations in the context of national security activities. As a practical matter, the First Amendment issues in those types of operational law analyses generally concern an individual’s or a group’s rights to association and speech.
In searching for some point of reference for how respect for First Amendment rights, including press freedom, is integral to the work of a national security professional, one indicator we might look to for guidance is the fact that applicants for security clearances are evaluated for past activities that may demonstrate a lack of such respect. Not only do government officials take an oath to uphold the Constitution when they step into their position, but respect for the exercise of rights under the Constitution, including the First Amendment, is also a requirement for a federal civil servant to obtain a security clearance and be granted access to classified information.
In particular, the following question appears on the SF-86, the lengthy form that applicants for a security clearance must complete:
Have you ever been a member of an organization that advocates or practices commission of acts of force or violence to discourage others from exercising their rights under the U.S. Constitution or any state of the United States with the specific intent to further such action? (Question 29.5 SF-86])
Of course, neither the president nor other elected officials are required by law to submit themselves to the same security clearance review that executive-branch officials and employees must. And the question posed on the form is quite narrow—it asks only about membership in an organization, and specifically one that encourages or engages in force or violence. Despite its narrow focus, however, it suggests a broader point: access to classified information—and, accordingly, a role of public trust involving protection of national security—cannot be consistent with activities that encourage or tolerate discouraging others from exercising their rights under the Constitution. The government wants its national security professionals to respect constitutional rights; their job is to uphold and protect them.
I think this understood value among the national security community is one reason we are seeing honorable former senior leaders of government intelligence agencies speak so publicly about their increasing unease with President Trump: They might not be able to put their finger on the law or policy he is breaking with each verbal or written assault on the media; they just know that his attacks on the press are inconsistent with their former roles as stewards of U.S. national security. It is worth pausing to reflect on the role of the national security community: It is the protection of the country. That includes physical security. But it also can mean protecting against a silent assault on our democracy using modern weapons and tradecraft to pursue age-old strategic objectives. The national security community’s mission includes, inherently, protecting not just our physical territory and personal security but also our democracy. To protect our system of government, our liberties and our freedom. That is why national security officials take the oath to the U.S. Constitution—because their duty is to protect Americans and America.
President Trump’s strategy of delegitimizing the press is a significant reason he is so unsuitable for his constitutional role and, since assuming office, should be understood to be actively undermining it. While President Trump is not the first to say derogatory things about the press, he has taken the practice to a new and dangerous level. Why is this? One answer may be that he seeks to centralize power in the White House, including with his family. This approach is consistent with other steps he has taken, such as leaving vacant key diplomatic and other national security posts and, instead, using family members to conduct official business. Similarly, he delegitimizes the two major political parties when he attacks politicians of both parties and when he refers to his voter base not as the Republican base but as the “Trump Base.”
An additional answer may be found in the observation that government leaders often seek to suppress media in order to hide public corruption activities. (For more on this point, see this 2009 UN/DESA Working Paper by Monica Nogara.) While the ongoing law enforcement investigations may eventually uncover criminal activity, corruption may also be significantly exposed through reporting. (See this past year’s consistent reporting by the Washington Post’s David Fahrenthold and the New York Times’ Eric Lipton, for example.) The media are reporting constantly on the number of days Trump spends at his private properties; money Trump and his family are earning through their hotel in Washington, D.C.; the bills Trump and his family are sending the Secret Service for rent; and much, much more.
As with his assault on the Justice Department, it is not necessary to recount here all the ways in which the president has attacked and sought to discredit the press in the past year; they are well-documented, and they reveal themselves daily (including, most recently, at his Phoenix campaign rally Tuesday). In short, the president has launched a consistent, sustained effort to discredit the media with the goal of minimizing the role of America’s free press and establishing himself, instead, as the one true source of information to be believed. His effort bears relation to that of authoritarian regimes that put forth their own state media to serve as the official source of information. In more severe environments around the globe, harassment of the press can include jailing reporters, closing down media outlets, censorship, criminal prosecution, harassment by police authorities and other law enforcement, or litigation strategies.
Freedom House, which surveys and reports annually on global press freedom, has stated that “No U.S. president in recent memory has shown greater contempt for the press than Trump in his first months in office.” While the first eight months of the Trump administration have not brought the extreme measures noted above, we have seen:
- The 2016 Trump campaign as a national embarrassment for its treatment of the press, as well as the hostile atmosphere it created. The president repeatedly mocked the media from the podium. His campaign limited journalists to “pens.” As documented by Freedom House, there was “harassment and roughing up of journalists at Trump rallies.”
- The Trump White House suspended video and live audio feeds of press briefings for several weeks over the summer of 2017.
- The president tweeted, on two separate occasions, images (a video and a cartoon) of physical violence against CNN and a fictional CNN reporter.
- The president has consistently and repeatedly made derogatory verbal attacks on specific reporters.
The Freedom House report observes that President Trump’s disparagement of the press (using his well-worn accusation of “fake news” and repeatedly describing the news media as “the most dishonest people” places him in the company of Bolivia’s Evo Morales (who accused the media of being a “cartel of lies”), the Philippines’ Rodrigo Duterte (who called the media “the vultures, pretending to be journalists”) and Turkey’s Recep Tayyip Erdogan (“Know your place . . . shameless militant woman disguised under the name of a journalist.”)
The U.S. president issuing official statements via Twitter depicting physical violence against a widely recognized U.S.-based international news outlet should not be minimized or ignored; nor should his personal attacks on individual reporters. Freedom House notes that press intimidation is a tool that insecure leaders use to “cling to power.” Throughout the world, members of the media face physical danger, including threats to life. Official government denigration of journalists is not a harmless act; it is a technique of regimes that seek to suppress the media. Politicians globally are on notice that journalists face potential violence for simply doing their jobs; activities or statements by politicians that intentionally provoke hostility toward the press are not innocent, uninformed or benign.
While we don’t know the precise motivation for the president’s attacks on the press, what we do know is that they are deliberate. They encourage an environment of hostility against the media. They are intended to affect the press’s exercise of its rights under the Constitution. The attacks may be an effort to centralize power and dissuade further scrutiny of unscrupulous activities. And they are inconsistent with a constitutional role of protecting national security.