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Bill Kristol: Enemy of the People

Was it wrong for the New York Times to install William Kristol as an op-ed columnist? The move to put an outspoken neoconservative in such a visible position is roiling the newspaper, inside and out. First, a hailstorm of hate mail arrived at the paper for hiring a "war criminal"--one of the milder epithets hurled in Kristol's direction by some 700 letter-writers, all of whom but one were venting against the appointment. Then, taking note of this groundswell of reader opinion under the headline, "He May Be Unwelcome, But We'll Survive," the newspaper's own ombudsman, Clark Hoyt, called the decision a serious mistake: not because Kristol is an "aggressive unapologetic champion" of the war in Iraq--but for something else.

That something else is remarks uttered by Kristol on Fox News Sunday in June 2006. "I think the attorney general has an absolute obligation to consider prosecution" of the New York Times is what Kristol told a television audience shortly after the newspaper splashed details of the highly classified Terrorist Finance Tracking Program on its front page.

This "leap to prosecution," wrote Hoyt on Sunday in his weekly column, "smacked of intimidation." It also revealed "disregard for both the First Amendment and the role of a free press in monitoring a government that has a long history of throwing the cloak of national security and classification over its activities." Someone of such ill repute is not one to be "rewarded with a regular spot in front of arguably the most elite audience in the nation."

Is Hoyt right or wrong about Kristol? For the light it sheds on how the most elite journalists in the nation regard themselves, this little contretemps is rich in a variety of ways.

A key recommendation of the bipartisan 9/11 Commission was that "efforts to track terrorist financing must remain front and center," because "information about terrorist money helps us to understand their networks, search them out, and disrupt their operations." The classified intelligence program that the Times disclosed was run jointly by the Treasury and CIA to accomplish exactly that; it relied on analyses of a database maintained by the European banking consortium SWIFT to figure out where, when, and how al Qaeda was moving money around the globe.

On the eve of publication, Bill Keller, the top editor at the Times, was personally told by John Snow, Secretary of the Treasury, that the story would undermine "a highly successful counterterrorism program" and alert "terrorists to the methods and sources used to track their money trails." The co-chairmen of the 9/11 commission, former Gov. Thomas H. Kean and former Representative Lee H. Hamilton, one a Democrat, the other a Republican, also weighed in with the highest Times officials, imploring them to spike a story that would harm U.S. counterterrorism efforts. To no avail.

In light of the Times's cavalier attitude toward the publication of classified information, does Kristol's suggestion that the Attorney General "consider" prosecution really smack of intimidation, as Hoyt suggests? That is certainly one way of looking at Kristol's remarks. But another way would be that they smack only of a desire to uphold the rule of law. In this instance a newspaper had compromised a classified program aimed at tracing terrorists who had already killed thousands of Americans. Under such circumstances, the Attorney General would be remiss if he did not scrutinize the statutes to see if such behavior was enjoined by law.

Hoyt calls this perspective "disregard" for the First Amendment. But is there any plausible theory of the Constitution under which that make any sense? "Congress shall make no law...abridging the freedom of speech, or of the press" is what the First Amendment flatly says. But the courts have long held, and the press itself has long readily accepted, that these seemingly unequivocal words are fully compatible with legal restrictions on what journalists can and cannot say in print. Statutes forbidding certain kinds of commercial speech and punishing libel, to which virtually no one inside the media ever objects, have long been held to be fully constitutional abridgements of freedom of the press. Can it really be that Congress can make it crime, as it has, to publish false advertising--the unfounded claim, say, that Crest shines teeth brighter than Colgate--while it cannot make it a crime to publish material that causes grave danger to national security? Hoyt's view is nothing but unadulterated applesauce, and so, in the few cases that have come before it, the courts have held.

In his column, like other journalists have in the past at the Times, Hoyt waxes indignant at the fact that the U.S. government "has a long history of throwing the cloak of national security and classification over its activities." But the cloak of national security and classification is a protective garment donned according to laws enacted by Congress--the elected representatives of the American people--and enforced by officials of the executive branch--also responsible to an elected representative of the American people whose title is President--to protect our democracy from mortal enemies. What is truly significant about this episode is that the Times ombudsman, like a good many other reporters and editors at the paper, have come to regard themselves as above and beyond the reach of these democratically enacted laws. And having placed themselves in that exalted position, they want criticism of their superior status to be silenced as well. The obligation of the media not to aid the enemy in wartime is a subject that some liberals these days are unwilling to discuss. They do not want conservatives to discuss it either. If anything, it is Hoyt's column that smacks of intimidation.

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