The Laughing Wolf

The Memo Leak: A Case For Treason

The leak of the the Rumsfeld memo brings back to the fore the concept of leaks, or confidential sources, in government and journalism. Unlike the Plame affair, which continues to play out in ways most interesting to watch, and to see how coverage disappears or spins as it does so, a clear case for treason can be made for leaking the document, and serious questions or charges raised for publishing same.

I am going to cover, briefly, some of the ground I previously covered here by going into why leaks are tolerated and even – in very specific cases – encouraged. Then, this particular case is going to be examined as to why it fails this test from several standpoints, and should be considered treason.

The idea of a double-standard within the population is normally repugnant to the law, at least on the surface. Whatever one may say about the super rich or media/sport stars getting preferential treatment, the laws of the land specifically hold that all are equal. Yet, the courts have consistently ruled that there is one exception to this: the protection of confidential sources by members of The Press. The reason for it is simple, the protection of whistleblowers.

Much of this comes from a meatpacking scandal which is reported to have made even Teddy Roosevelt sick when he read it. The exposure of the scandal, which may have made portions of the population unwitting cannibals, resulted in significant changes to federal law and federal powers by regulating food and the growing food industries. The test was, and is, that the greater good is served by protecting those who come forward or otherwise provide information that aids the public good. While I am not a lawyer, and will defer to the excellent Volokh Team and even Evil Cardinal Puppylieu on this, it is presented this way in most journalism history classes.

This basic premise has been upheld many times, with one famous case being that of the Pentagon Papers. The papers showed that the Government, specifically the Executive Branch, was lying to the public on several key issues. These lies were designed to prevent full public debate and negate the ability of Citizens to make informed decisions. It has even been argued by some that it was an attempt to impose a dictatorial decision on the people, though that begs many questions about many other activities as well.

The problem here is that the leak of this memo meets none of the established criteria for protection.

The memo in no way reveals truly new material. It does not expose any harm or potential harm to the body politic or the population as a whole that was not already known, discussed, and acknowledged. In point of fact, it exposes information that could by its revelation harm the body politic and the public good.

Memos such as this should be generated on a fairly regular basis in any organization, to identify weaknesses, strengths, and to debate the need for change and the best mechanisms to facilitate positive change. As Cardinal Pupplieu noted the other day, the revelation of the memo can have a chilling effect and reduce the likelihood that such memos will be generated. If this were a company, that would be one thing since the forces of the market will reward or punish as need be.

The problem is, this is our military and we are at war. We are at war with an enemy that has sworn to destroy us and our culture, and with whom there can be no truce or compromise. That is not our decision, but theirs. This fact has been missed or ignored by many who seem to feel that we can negotiate, we can compromise, or that we can buy off the enemy.

Our military needs to change. That has been the cry from left and right for some time, and what is more it has been a cry from within the military for at least 20 years that I know of. The face of warfare is changing as it has never changed before. Not even WWI, which saw the end of maneuvered ranks and mass formations, can compare to the changes taking place today. That such change has started can be seen in the lightening campaign to take Baghdad, which was the fastest campaign with the fewest casualties in history. Not only were there few military casualties, there were very few real civilian casualties, and it was possible to select action such that civilians could be largely spared. Compare this with any war in history, particularly WWII, to see the difference.

These changes need to continue. The threats and tactics of the past are just that. We no longer face Napoleonic troop blocks and horse cavalry; we no longer face the Wehrmacht and the blitzkrieg; and, we no longer face the massed divisions of the Cold War. Now, that is not to say that some of the more recent threats are no longer there, but the likelihood of massive waves of troops pouring through the Fulda Gap are a bit less likely now. Even if they weren’t, the means of opposing them have changed. In light of these advances and changes, and a new enemy that fights in a very different way, there is a clear need for change.

Some of this need for change has already been the subject of public and private debate. This will need to continue and the Citizens will need to make informed choices and recommendations to the military that serves and protects it. Yet, there is also a need for internal discussions and change, and that was the point of the memo. The information in it reveals not just the obvious and old news of problems, but discusses HOW and WHAT is needed in the way of change.

I rather suspect that the memo was leaked for partisan reasons. That is not to say for party reasons, but it could also be that someone who is watching their particular ox get gored wanted it floated to protect said ox. Alas, my personal suspicion is that this was a party-based leak, which makes it even more reprehensible. It some ways, however, it really does not matter.

What does matter is that the leak of the memo did not serve the public good. It in no way exposed a problem, corruption, or other accepted standards of reasonable action. What it did do was to expose critical workings to our enemies in a time of war. It hampers efforts to prosecute that war and to make the changes that will be needed not just for it but to meet any future threats as well. It gives aid and comfort to our enemies during a time of armed conflict.

That is treason.

Whomever leaked this should be identified, charged, and tried for treason. Particularly if the motivation for leaking was some form of partisanship.

Which brings us to the question of the reporters and outlet who ran the story. The law here is, to my mind, somewhat less clear. That said, however, I think that they might should be, simply because the law is the law and needs to be evenly applied. The special treatment given The Press is not absolute, though many in The Media fail to understand or appreciate it. It is their contention that they hold to a higher law, a higher set of standards that transcend any other obligation, much on the order of the priesthood and the sanctity of the confessional.

Years ago, when I first entered the field of journalism and communications, I made a personal decision that I would not write or run any story that would unduly place those defending our country in harm’s way. When I discussed this with others in the profession, I was stunned at the ferocity with which this decision was received. I was told in very clear terms that this was wrong, that my duty to the public and to the profession transcended any other oaths or allegiances and it was my duty to report no matter what.

I rejected that viewpoint completely and utterly, and with strong contempt. Ethics can be very slippery to deal with, and there are issues with which I still wrestle, but there are things that are clear and unambiguous. The fact is that I am not supranational, nor am I a part of any organization that is such. The profession of journalism and/or membership in The Media does not make one a supranational entity. We are each citizens of our own countries, and while I admire many of the standards to which journalism aspires I am also not blind to the failings of same. I have never been able to stomach treating all reporters from anywhere in the world as if they held to these same standards, when it was clear they did not. Yet, others seem to have no such trouble, and do clearly see themselves and the beliefs and agendas they pursue as placing them above the rabble and above the law.

I would love to know if the reporters and editors at USA Today gave any serious consideration or deliberation to what they were doing. Did they think of the potential damage revelation would do? Or, did they simply see partisan hay to be made out of it? Did they think of how this could or would effect future deliberations or change? Or did they simply see a chance to strike a blow at an old enemy in an undeclared war? Did they give any thought towards their responsibilities as Citizens? Or did they only think of their “obligations” to “journalism?”

Most of all, did they think of what this could do to journalism. The military is not the only organization facing significant change. The limitations of The Press, that heavy, expensive, cumbersome piece of equipment, are gone. The dividing line between Citizen and member of the Fourth Estate, is gone. The law has changed significantly, and in addition to The Media there are blogs, whistelblower laws, and more in place. The Law no longer has an either/or choice. With modern technology, every person has the chance to be a journalist, for a day or for a career. What this will mean to special treatment for members of The Press remains to be seen, but already many organizations are opening up the formerly restricted areas to a much broader definition of member of The Press. That is going to continue, and to accelerate.

The opportunity presented by these actions to clarify law and to change tradition are extraordinary, and there are people on all sides who would love to seize it. I am one of them, and it is my hope that the suggestion of Cardinal Puppylieu is taken up here as well as in the Plame affair: subpoena the reporters. Neither case meets the normal standards of journalistic protection, much less the established basis of legal protection. Both appear to have been done for partisan reasons, so let’s find out which partisans and for which reasons. Both, with the memo clearly leading, pose damage to our ability to fight the war in which we find ourselves. All of these things need to be addressed and legal and ethical standards created or upheld.

Moreover, journalism as a profession needs to look at itself and its codes. What is more important, a perceived right or prerogative, or duties to Country, truth, and self? Do the rules and codes of journalism abrogate oaths and duties to our own country? Did this case ever even get considered in terms of anything other than pursuing a story?

The New Media needs to think about this as well. Each of us as individuals will have to make decisions about what we write, report, and discuss. How will you handle such things when they come up? The odds are that as the New Media grows, that some of us will face similar issues and questions. Start thinking about that now, because it will always be about more than the immediate. If you don’t think now about what lies beyond, then you will not be ready when the time comes.