Notice something abut the secrecy measures I have mentioned: Every one of them was taken without asking Congress for legislation. Where is the legal authority for the President of the United States to impose a lifetime censorship system on officials apart from Congressional statutes? In my opinion there is none. Why didn’t this President ask Congress for such a system if it was urgently needed? The answer is evident: He knew he could not demonstrate the need, and he knew Congress would say no to the idea. And the same evasion of Congress is there in so many other instances: the covert war on Nicaragua, the use of bureaucratic devices to cripple the Freedom of Information Act, the refusal to invoke the War Powers Act in Lebanon or Grenada. That consistent practice–the attempt to exercise power by Executive action–shows again that more is at stake here than freedom of the press. The integrity of our constitutional system is at stake. What can we do about the campaign for secrecy in government? There is a tendency in liberal America, and I am not immune from it, to look to the courts to save us from dangers to liberty. But in this situation it would be folly to rely on judges. The reason is simple. The Reagan Administration’s secrecy measures are cloaked in claimed needs of national security, and judges are extremely reluctant to take a hard look at such claims. The Supreme Court, for example, told by the Executive that that Philip Agee, a C.I.A. renegade, was threatening the country by his speech-making abroad, upheld the revocation of his passport in an opinion saying that Mr. Agee was not engaged in “speech.” When there is talk of “national security,” we cannot expect the Supreme Court to do much for the First Amendment–and even less if there is a second Reagan Administration and Justices William Clark and William French Smith join the bench.
Some lawsuits are unavoidable. But the press should certainly not rush into them with any great confidence in this area–not, for example, try to bring a test case challenging the exclusion of reporters from Grenada: an idea that I have heard is under discussion and that I think would fail disastrously.
What else, then? I think there is no alternative to fighting the threat of repression in the arena of Congress and public opinion. And despite the public’s skepticism about the press these days, I believe there is hope in such a battle. The Senate, a Republican Senate, has recently adopted an amendment barring implementation of the lifetime censorship order until next April 15, while Congress studies it. There is a concern, a sensitivity that can be reached–if. The if, in my judgment, is a convincing demonstration that what is involved is not just a fight between the Press and the rest of the country, a fight between Us and Them, but it is a struggle to preserve the rights of all citizens in a democracy.
The press has not always been effective or even adequately concerned about issues of democracy when its own ox is not being gored. You may see bigger headlines when a newspaper loses a case in the Supreme Court than when the President issues a sweeping order designed to impose on government a system of prior restraint just like the English press licensing system that the Framers of our Constitution thought they were excluding forever from this country. To my astonishment, a columnist in the Wall Street Journal actually welcomed the Reagan censorship order as “a fine idea.”
But I think editors and reporters mostly now do understand that freedom is indivisible, that the press weakens its own safety if it cares only about itself and separates itself from the public interest in free and informed debate. A complicated and deadly serious challenge faces those who follow the example of Elijah Lovejoy.